text
stringlengths 11
196k
| embeddings
listlengths 1.02k
1.02k
|
|---|---|
Wade, O. J.
On the 24th day of April, 1879, the respondent entered into a contract with the government of the United States to furnish and deliver to the government, at the Crow Indian Agency, in the territory of Montana, for the price therein named, beef cattle on the hoof, at the times, in the quantities and of the character therein specified, payments for which were to be made at the office of Indian affairs, on presentation of the proper receipts or vouchers from the Indian agent. Among other things, the contract further provided that the beef cattle so to be furnished by the respondent should be good and merchantable cows and steers, not over seven years old, the cows and. steers to be weighed separately on the government scales, after being without food or water for twelve hours before being weighed, and that for all cows delivered under the contract a deduction of twenty per cent, on the price should be made.
On the 2d day of September, 1819, the appellant entered into an agreement with the respondent, by the terms of which the appellant agreed to deliver to the government of the United States, at the Grow Indian Agency, Montana, upon said contract of the respondent with the government of the United States to furnish beef, such quantities of beef as the government might require; at the rate of two cents per pound, gross weight, for each pound of beef so delivered and receipted for by the agent at the Grow Indian Agency, payments to be made to the appellant by the respondent, at the First National Bank of Helena, upon the agent’s voucher or receipt specifying the quantity of beef received.
By the terms of the appellant’s contract, he was to furnish the beef mentioned in respondent’s contract. The beef was to be estimated, the number of pounds ascertained, and the vouchers therefor were to be delivered as provided in respondent’s contract.
If the cattle were to be kept without food or drink for a certain period before being weighed for respondent, so they were for appellant. If the cows and steers were to be weighed separately for respondent, so they were for appellant. The provision as to the quality and kind of cattle, and for ascertaining their weight, attached alike to each contract.
The contract of appellant to furnish beef on the contract of respondent subjected him to these conditions as to quality, kind and weight. Upon the number of pounds so ascertained, vouchers were to be issued to appellant, and according to these vouchers he was to receive his pay from respondent. In like, manner the proviso as to cows, contained in respondent’s contract, attached to the contract of appellant. The proviso had to do with the weight of the cows. It was wholly immaterial whether the twenty per cent, deduction was from the weight or the price of the cows. He who contracted to furnish and deliver beef upon respondent’s contract must, have contracted with reference to this twenty per cent, deduction.
He was under no obligation to deliver cows; but if he did deliver them, he knew they were subject to the twenty per cent, deduction, and knowing this, and having the light to fill the entire contract with cows, it would have worked a fraud upon respondent, if, with this knowledge,, he could recover pay for their full weight.
. The fair interpretation of respondent’s contract is, that twenty per cent, 'was to be deducted from the weight of the cows, and the same interpretation must be given to appellant’s contract.. The appellant was to receive his pay according to vouchers issued in pursuance of respondent’s contract. But there were no vouchers, and could have been none, for the full weight of the cows delivered on the contract. The deduction must have been made by the agent when he received the cows, and vouchers were delivered accordingly.
The appellant does not complain that he has not received his full pay according to the vouchers delivered by the agent. Then upon what does he base this action? If he is exempt from this twenty per cent, deduction, then the provision as to the time when the cattle shall be weighed does not attach to his contract; and he might as well demand pay for the loss occasioned in the weight of the cattle by the twelve hours without food or water, as for the twenty per cent, deduction on cows.
It follows, therefore, that the parol proof as to the twenty per cent, deduction on cows did not change, modify or vary the terms of appellant’s contract, and was wholly immaterial.
It is claimed that there was no specific assignment of error in the statement. The statement contains a notice of motion for a new trial which contains a specific assignment of error. Where a notice contains a- specific assignment of’ the error relied upon, and the same is made a part of the statement on motion for a new trial or on appeal, we thiak this to be a sufficient specification of error in the statement, and a sufficient compliance with the Practice Act, which requires that the statement “ shall state specifically the particular error or grounds upon which appellant intends to rely in his appeal.” The object of the requirement is, that the opposite party shall have notice of the errors relied on, and when the notice contains such specification of error, and is made part of the statement, he has had such notice.
The judgment is affirmed, with costs.
Judgment affirmed.
|
[
17,
-29,
-35,
-10,
11,
4,
13,
28,
6,
26,
-23,
-46,
-38,
8,
17,
87,
-44,
-25,
13,
-21,
13,
-30,
-49,
-32,
-18,
39,
-32,
-70,
-46,
-22,
-2,
76,
-40,
-46,
18,
-6,
32,
27,
-17,
-16,
51,
-25,
-32,
13,
62,
38,
0,
-17,
49,
-15,
36,
24,
19,
14,
-67,
-41,
-14,
-73,
-18,
49,
55,
-51,
66,
-41,
-46,
-53,
-14,
13,
8,
78,
38,
-13,
-13,
-47,
55,
-31,
56,
-84,
33,
3,
39,
17,
31,
6,
33,
61,
-21,
-19,
-1,
17,
-67,
-49,
-14,
-4,
-25,
-24,
3,
51,
-63,
25,
10,
10,
-9,
5,
58,
16,
-79,
32,
-8,
33,
24,
-19,
-18,
-14,
-7,
72,
-33,
57,
-55,
-25,
-29,
67,
0,
1,
0,
-7,
-44,
-26,
24,
-7,
-8,
-18,
7,
21,
-6,
26,
-12,
-13,
0,
43,
5,
-38,
-25,
0,
25,
1,
-56,
-12,
-29,
-3,
-28,
1,
4,
16,
9,
-16,
15,
16,
-6,
-43,
42,
-47,
-21,
-31,
-37,
27,
-45,
-25,
2,
-9,
12,
-16,
-59,
-23,
33,
22,
23,
-2,
20,
-33,
34,
35,
-64,
-30,
58,
41,
-12,
25,
-17,
39,
-24,
-50,
19,
-77,
-6,
-23,
-7,
-18,
-44,
4,
23,
-11,
6,
29,
9,
65,
-6,
-45,
15,
20,
-37,
0,
-35,
-6,
-40,
21,
-46,
38,
-12,
-13,
-5,
-14,
1,
70,
18,
-32,
64,
104,
6,
-26,
-7,
26,
55,
-21,
57,
-76,
-28,
-25,
4,
46,
-3,
-92,
-36,
-28,
43,
-42,
-35,
3,
0,
18,
-24,
-15,
15,
38,
-6,
2,
42,
-9,
-48,
-46,
-43,
-21,
63,
32,
0,
-12,
-83,
-19,
31,
31,
-14,
31,
48,
5,
-37,
-16,
39,
-37,
-30,
-33,
-33,
-79,
-42,
38,
37,
-37,
-6,
-2,
-61,
-15,
38,
-21,
34,
-86,
18,
25,
-60,
7,
58,
-66,
-37,
-34,
39,
8,
-31,
21,
-2,
-12,
-18,
-128,
-13,
-15,
-40,
1,
-32,
2,
47,
31,
-16,
14,
21,
39,
42,
32,
2,
-23,
-40,
8,
-16,
27,
47,
-26,
-32,
15,
-36,
11,
1,
43,
44,
0,
45,
43,
-9,
38,
-65,
49,
30,
-29,
28,
-10,
-20,
5,
-51,
2,
26,
50,
-32,
40,
39,
13,
10,
-20,
-18,
-14,
-67,
-21,
-53,
5,
25,
-66,
19,
16,
83,
-32,
-12,
5,
-5,
53,
-15,
-43,
-37,
30,
-20,
26,
32,
3,
43,
13,
-25,
-35,
16,
-1,
-30,
59,
55,
7,
-30,
-75,
-15,
-36,
32,
-1,
14,
-34,
49,
-19,
74,
-35,
-12,
-51,
30,
-44,
-54,
-69,
-3,
7,
-28,
30,
15,
-14,
14,
40,
16,
46,
56,
-37,
37,
-28,
-23,
45,
0,
-13,
24,
55,
-20,
-5,
-24,
-60,
-17,
-4,
-10,
55,
-17,
36,
-35,
9,
-4,
44,
4,
-12,
41,
-8,
-71,
14,
-11,
28,
77,
-5,
5,
46,
16,
8,
20,
-83,
31,
5,
55,
-18,
5,
49,
-18,
8,
62,
-26,
-13,
-43,
8,
-15,
-6,
-1,
-37,
-18,
38,
5,
10,
-24,
-39,
25,
-27,
44,
7,
-15,
-60,
27,
-43,
0,
3,
-24,
67,
20,
-45,
-18,
34,
-37,
-32,
13,
43,
-42,
8,
-25,
63,
-33,
-18,
-22,
54,
15,
17,
31,
-6,
6,
-1,
34,
-15,
-38,
40,
19,
44,
7,
6,
1,
-74,
52,
18,
-10,
-11,
-17,
87,
53,
4,
-19,
0,
-61,
68,
-27,
7,
-7,
-3,
-15,
-6,
-30,
52,
-29,
80,
-14,
-32,
32,
7,
26,
-43,
22,
-37,
44,
-75,
-61,
35,
-1,
50,
19,
8,
43,
-33,
30,
42,
1,
8,
-33,
-43,
-11,
15,
14,
5,
-26,
-13,
-12,
-23,
-12,
19,
15,
11,
48,
2,
24,
26,
8,
-28,
38,
10,
31,
-38,
11,
14,
-11,
-31,
71,
-23,
35,
-69,
11,
46,
79,
-12,
21,
21,
-24,
-28,
29,
34,
-22,
22,
-4,
21,
-15,
-27,
-27,
4,
-25,
-4,
-18,
-4,
-7,
4,
11,
-2,
12,
-4,
-3,
44,
11,
14,
-35,
-5,
-42,
-13,
-3,
-7,
32,
-19,
-12,
18,
-35,
-29,
-7,
44,
-9,
-17,
-5,
3,
-40,
10,
68,
39,
-65,
-27,
7,
-11,
-9,
25,
2,
20,
-23,
15,
-54,
-5,
-19,
32,
-4,
4,
9,
16,
14,
50,
38,
16,
14,
52,
5,
47,
-36,
-40,
71,
16,
-24,
16,
16,
43,
-51,
15,
26,
-44,
4,
75,
-63,
-63,
-29,
47,
-7,
-83,
-15,
-15,
3,
21,
-29,
10,
15,
-14,
-24,
2,
54,
6,
-50,
59,
34,
42,
39,
13,
-12,
-14,
37,
-46,
16,
-31,
66,
38,
-25,
56,
12,
-70,
11,
-110,
-45,
23,
-17,
13,
8,
-41,
12,
18,
7,
-58,
7,
31,
-29,
-2,
16,
-10,
-32,
-53,
36,
-67,
-27,
53,
-14,
-41,
2,
-28,
-2,
0,
-18,
30,
-13,
18,
5,
-66,
28,
89,
-19,
27,
19,
5,
-50,
10,
-18,
-46,
-20,
39,
-26,
40,
-11,
27,
27,
9,
-31,
69,
-14,
-77,
-4,
-9,
52,
-53,
-48,
-7,
-66,
-5,
34,
64,
35,
33,
-40,
-51,
51,
-52,
9,
1,
5,
-1,
-47,
-1,
-60,
11,
-13,
9,
39,
3,
7,
6,
26,
-26,
9,
-23,
-21,
-11,
0,
-20,
0,
5,
34,
-12,
30,
-19,
63,
38,
3,
23,
-39,
32,
-11,
-49,
19,
-76,
-20,
18,
49,
51,
19,
8,
4,
36,
-36,
36,
24,
-9,
-18,
13,
14,
-44,
-26,
26,
-18,
-31,
-3,
14,
26,
-59,
7,
3,
27,
2,
-14,
59,
-4,
18,
-15,
36,
32,
-18,
-1,
37,
-1,
51,
7,
31,
-72,
-61,
19,
29,
-41,
0,
-43,
17,
11,
36,
50,
17,
21,
6,
-25,
13,
12,
86,
37,
-18,
-57,
0,
-11,
-3,
5,
-27,
-17,
34,
-38,
29,
-44,
-40,
35,
-17,
3,
2,
49,
0,
36,
-10,
28,
-15,
12,
-50,
23,
-3,
5,
-12,
9,
-43,
29,
38,
-19,
-10,
4,
-14,
-36,
11,
-27,
14,
44,
-5,
73,
-1,
-27,
-46,
6,
33,
20,
17,
31,
37,
0,
-18,
31,
19,
19,
-3,
-23,
0,
17,
8,
-22,
68,
-25,
-20,
-36,
36,
23,
41,
-3,
-91,
48,
79,
37,
1,
-28,
-57,
30,
-12,
92,
-25,
14,
44,
-28,
38,
55,
-17,
-41,
-46,
-80,
-69,
55,
-63,
-51,
23,
5,
-27,
-75,
-48,
-8,
-5,
12,
-12,
17,
35,
42,
-30,
-32,
17,
-87,
21,
29
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Claimants Gregory Duncan, Sherri Donovan, and Terry Dougherty (collectively Duncan) and Skelton Angus Ranch, Inc. (Skelton) appeal from a decision of the Montana Water Court that amended the Water Master’s (Water) Report and adopted it as amended. We affirm.
¶2 We address the following issues:
¶3 1. Did the ChiefWater Judge properly admit historical documents prepared by Pondera County Canal & Reservoir Company (Pondera) in anticipation of litigation?
¶4 2. Did the ChiefWater Judge correctly reject the Master’s findings regarding certain variables used to determine the historical capacity of a flume on the Thomas ditch?
¶5 3. Did the ChiefWater Judge correctly determine that portions of the claimants’ water rights had been abandoned or never perfected?
¶6 4. Did the Chief Water Judge correctly adopt the Master’s conclusion that the claimants did not acquire any water rights by adverse possession?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 This matter comprises two joined cases, both involving claims to water diverted from the South Fork of Dupuyer Creek in Two Medicine River Basin, into Gansman Coulee, for irrigation in the Teton River Basin.
¶8 In the adjudication process, Duncan and Skelton filed statements of claim for existing rights based on various Notices of Appropriation (NOAs) filed between 1895 and 1913. The claims share a single point of diversion from the South Fork, Dupuyer Creek, through the Thomas ditch, to the claimants’ lands. The Duncan property is positioned where the diverted water enters Gansman Coulee, and the Skelton property adjoins the Duncan property further downstream. Pondera diverts water from South Fork, Dupuyer Creek, downstream of the Thomas ditch. Pondera filed notices of intent to appear in the adjudication of Skelton’s and Duncan’s claims. A Temporary Preliminary Decree for Teton River Basin was issued on December 29,2005. The objections at issue here stem from that decree.
¶9 Following a hearing, the Master, in his Report, quantified and assigned priority dates to the claimed water rights. The Master concluded the capacity of a flume through which the water was diverted after the Thomas ditch washed out around 1908 limited the quantity of water that had historically been put to beneficial use and could be claimed. After reviewing the evidence, the Master concluded that the initial flume was built around 1912. Certain water rights were limited in quantity to the capacity of the 1912 flume. The 1912 flume washed out several times and was completely rebuilt in 1931. The 1931 flume was significantly larger than the 1912 flume. Construction of the 1931 flume resulted in creation of new “implied” water rights, with a 1931 priority date, to be distributed among the parties. Because he concluded the flume’s capacity limited the water rights, the Master concluded that claimed quantities of water exceeding the capacity he calculated had been abandoned or never perfected.
¶10 The Master’s Report recognized that determining the flume’s original capacity had been complicated by the number of repairs and improvements that took place over the years. In addition, the Master noted that the original flume had been washed out and rebuilt on many occasions. “In fact,” he wrote, “maintaining this diversion has been a huge problem.” This, he suggested, was in part due to frequent flood events that caused “significant destruction.”
¶11 Information about the flume around the time of its construction primarily derived from documents Pondera compiled in the early 1900s, after it began investigating the water rights in the area to determine the viability of attempting to obtain land under the Federal Carey Land Act. All parties acknowledge that the documents generated by these investigations were created — at least in part — in anticipation of litigation of the water rights on Dupuyer Creek. Prior to the hearing before the Master, the claimants moved to exclude these documents because they were prepared in anticipation of litigation and contained self-serving declarations. The Master determined they were admissible as ancient documents.
¶12 The available information revealed that, in 1912, H.A. Bestor (Bestor), apparently a surveyor or engineer for Pondera, estimated the flume was 24 inches wide and 8 inches deep, with a slope of .003. Bestor calculated the flume’s capacity at 4.22 cubic feet per second (cfs); the claimants’ expert witness Ryan Casne (Casne) opined that calculation was based on water flowing through the flume at that time rather than the flume’s maximum capacity. In 1918, a diary entry provided by Pondera documented the size of the flume at approximately 23 inches wide, 10 inches deep, and 400 feet long. Various interviews with local residents conducted in the early 1920s indicated that the flume washed out in 1916, was rebuilt by 1918, and that part of the flume was rebuilt in 1920. One of the interviewees anecdotally opined that the rebuilt flume was “the same size” as the previous structure — but actual measurements did not corroborate this estimate. Notes taken by a Pondera employee named Mattison, dated August 26,1920, measured the flume at 24 inches wide and 11 inches deep. An Exhibit from Pondera based on 1921 and 1922 field work calculated the flow rate of the flume at 3.49 cfs. An affidavit from Woodrow W. Coffins mentioned a dam, which the Master concluded was “a significant system improvement” in the 1930s. In 1936, a memorandum drafted for Pondera’s predecessor documented the flume was 30 inches wide, 22 inches high and 200 feet long; and estimated the flow rate at 12-15 cfs. From 1947 to 1999, the claimants’ predecessors testified, the flume was approximately 36 inches wide, 24 inches deep and 300 feet long.
¶13 The parties, recognizing the significance of flume capacity, submitted expert testimony regarding that capacity. Experts used two different formulas to calculate the flume’s capacity or flow rate: Manning’s formula for an outlet-controlled structure, and the formula for an inlet-controlled structure. Testimony explained that the flume’s length would determine whether the structure was outlet- or inlet-controlled; if the structure was 300 feet long or greater, experts agreed it was likely outlet-controlled, and its capacity best determined using Manning’s formula.
¶14 Everyone who calculated the original 1912 structure’s capacity assumed that its slope was .003 and that the roughness coefficient was .012, figures taken from Bestor’s 1912 Report. Expert Casne, assuming the flume was 24 inches wide and 8 inches deep, calculated the flume’s capacity at 4.6 cfs. Pondera’s expert Bruce Anderson (Anderson) relied on Bestor’s 1912 calculation and concluded that 4.22 cfs was a reasonable flow rate for the original flume. The Master performed an independent calculation using Manning’s formula for an outlet-controlled structure using an online calculator. Assuming the flume was 24 inches wide by 11 inches deep, and the slope was .003, he calculated the flow rate was 7.6 cfs, almost double the rate any expert witness calculated.
¶15 As for the 1931 flume, assuming that the flume was an inlet- controlled structure, expert testimony estimates of its flow rate ranged from 20.0 cfs to 21.97 cfs. Assuming it was an outlet-controlled structure, estimates varied almost 300 percent, due to use of different slopes and roughness coefficients. There was no reliable slope information for the flume after it was enlarged around 1931. Again, the Master performed an independent calculation and arrived at a much larger amount of water using Manning’s formula than the experts did using the formula for inlet-controlled structure. Critical, here, is that Manning’s formula, the formula for an outlet-controlled structure, relies heavily on slope. On the other hand, in the calculation for an inlet-controlled structure, slope is not relevant. In calculating the flow rate of the reconstructed 1931 flume, the Master used the slope coefficient from the 1912 flume, in Manning’s formula.
¶16 The Chief Water Judge rejected the Master’s findings on the capacities of the two flumes and associated water rights because he concluded that the Master “misapprehended the effect of the evidence.” The Chief Water Judge replaced the Master’s findings with factual findings he considered better supported by the evidence in the record, pursuant to his authority under M. R. Civ. P. 53(e)(2) and Rule 23, W.R.Adj.R.
¶17 With regards to the capacity of the original 1912 flume, the Chief Water Judge explained that the dimensions the Master used in conducting his calculations were not supported by the record and were different from those used by the experts who testified. Specifically, the Chief Water Judge found that the flume dimensions the Master used in his calculations were based on the 1920 flume structure, rather than the original 1912 flume — even though the Master used the slope and roughness coefficients from the 1912 flume. The Chief Water Judge pointed out that using a later measurement was problematic because the purpose of determining the original flume’s capacity was to quantify the amount of water originally put to beneficial use, and since the slope of the flume in the 1920s was not known. By using dimensions from a later structure, the Master affected the quantification and priority date of the water right, since those determinations were based in part on the flume capacity.
¶18 As to the second, 1931 flume, the Chief Water Judge concluded the Master committed clear error by relying on a formula that depended heavily on slope when the factual record contained no slope measurement for the second flume. The Master simply used Bestor’s slope measurement from the 1912 flume, even though the flume had, by all accounts, been completely rebuilt by 1931. Further, the slope measurement the Master used was almost twice as steep as post-reconstruction slope information. The Chief Water Judge also reversed the Master’s determinations with regards to the validity of some of the water rights at issue.
¶19 The 1895 B.P. Clark NOA claimed 25 cfs. Dimcan and Skelton both claim the full 25 cfs. For water appropriated pursuant to the B.P. Clark NOA, the Master ultimately recommended that the right was abandoned except what could be carried in the 7.6 cfs flume. Due to a subsequent land transfer, he found that Duncan was entitled to 0.35 cfs of this right and Skelton was entitled to 7.25 cfs. The Chief Water Judge determined that the evidence was insufficient to establish perfection of rights based on the B.P. Clark NOA on lands owned by Skelton. The Chief Water Judge determined that the B.P. Clark appropriation right was severed from lands owned by Duncan because it was reserved when Armedia Clark, in 1903, specified the rights conveyed in a deed to Duncan’s predecessor. Consequently, the Chief Water Judge did not allow the claimants any water based on this NOA.
¶20 Both Duncan and Skelton also claim water based on a 1902 NOA for 50 cfs filed on behalf of Armedia Clark. Both claimants sought the full 50 cfs. The Master held that, of the original 50 cfs, only 4.5 cfs were acquired by Duncan’s predecessors through the 1903 Armedia Clark deed and should pass on to Duncan. The Master held that Skelton’s predecessor abandoned the right to appropriate water under the Armedia Clark NOA and the right could not pass to Skelton. The Chief Water Judge adopted the Master’s recommendations for the Armedia Clark NOA.
¶21 Skelton claims water based on a NOA filed by Mustard, Roberts, and Deschenau in 1904, and another by Walter Clark in 1906. The Master and the Chief Water Judge agreed that the claims based on these NOAs were invalid because they were never perfected.
¶22 Dimcan claimed water based on a 1912 or 1913 NOA for 10 cfs filed on behalf of Theresa Flacker. That right was diverted through the Flacker ditch by 1913, but the Flacker ditch was tom out soon afterwards. The Master found that Flacker conveyed this appropriation to one of Duncan’s predecessors in a land sale. The new owner, Duncan claimed, diverted the right through the Thomas flume, beginning in 1915. The Master accepted this proposition, but held that the owner lost all but 3.1 cfs due to the capacity of the flume. The Master recommended that Duncan acquired this 3.1 cfs as a “use right,” because of discrepancies with the filing date. The Chief Water Judge, having determined the flume’s capacity was significantly smaller than what the Master calculated, concluded that the flume did not have sufficient capacity to convey both the Flacker and the Armedia Clark appropriations. He further noted that the only real evidence in the record of the Flacker right was that the ditch had been destroyed and the right never used again. The Chief Water Judge effectively concluded that any claim based on the Flacker NOA had been abandoned.
¶23 Finally, both Duncan and Skelton claim water based on the increased flow rate that resulted from the installation of a larger flume in 1931. The Master recommended creating implied claims for Duncan and Skelton for the difference between the capacity of the post-1931 flume, which he determined to be 36.32 cfs, and the amount of water allocated to each claimant based on the 1912 flume. The Master’s reason for creating an implied claim was that the 1931 appropriation was based on several existing claims which appeared to be overstated, creating a need to distill these into separate water right claims with a 1931 priority date. See W.R.C.E.R. 35. For the implied claim rights, the Master determined that Duncan was entitled to 28.37 cfs and Skelton was entitled to 29.07 cfs — both with a December 31, 1931, priority date. On review of the Master’s report, the Chief Water Judge held: “Other than the amounts of the implied claims, the Master’s rationale is sound.” Because the Chief Water Judge determined that the capacity of the post-1931 flume was only 20 cfs, and that Duncan was entitled to use 4.5 cfs pursuant to the Armedia Clark NOA, the court concluded that the claimants’ implied rights with a 1931 priority date only amounted to 15.5 cfs each.
¶24 Duncan and Skelton now appeal from the Water Court’s order.
STANDARD OF REVIEW
¶25 When reviewing the Water Court’s decision, two standards are relevant: The standard the water judge applies to the Master’s report and the standard we apply to the Water Court’s opinion. Heavirland v. State, 2013 MT 313, ¶ 13, 372 Mont. 300, 311 P.3d 813. The Water Court reviews the Master’s findings of fact for clear error and the Master’s conclusions of law to determine whether they are correct. Heavirland, ¶ 14. Applyingthese standards of review, “the water judge may adopt, modify, or reject the [Master’s] report, in whole or in part, or may receive further evidence or recommit it with instructions.” W. R. Adj. R. 23; M. R. Civ. P. 53(e)(2).
¶26 We review the Water Court’s order de novo, to determine whether it correctly applied the clear error standard of review to the Master’s findings of fact and whether its conclusions of law were correct. Heavirland, ¶ 15. “[W]hether the standard of review was applied correctly is a question of law.” Heavirland, ¶ 15 (citing Milliken Research Corp. v. Dan River, Inc., 739 F.2d 587, 593 (Fed. Cir. 1984)). We review the Water Court’s findings to determine whether they are clearly erroneous. Weinheimer Ranch v. Pospisil, 2013 MT 87, ¶ 19, 369 Mont. 419, 299 P.3d 327; see Milliken Research Corp., 739 F.2d at 593 (“we must first review, as a matter of law, the correctness of the district court’s setting aside any factual finding by the master and, if that is upheld, review any substitute or additional findings of the district court under the ‘clearly erroneous’ standard....”).
¶27 The standard we use to determine whether a finding of fact by a court sitting without a jury is clearly erroneous is set forth in Interstate Prod. Credit Ass’n v. Desaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991); see also e.g. In re the Existing Rights within the Jefferson River Drainage Area, Nos. 41G-137, 41G-W-182145-00, 1999 Mont. Water LEXIS 1 at **3-4 (Dec. 27, 1999) (setting forth the test the Water Court uses when reviewing objections to a Master’s Findings of Fact; citing Desaye). First, the reviewing court reviews the record to see whether the findings are supported by substantial evidence. Desaye, 250 Mont. at 323, 820 P.2d at 1287. Second, even if the findings are supported by substantial evidence, the reviewing court may determine a finding is clearly erroneous if the trial court misapprehended the effect of the evidence. Desaye, 250 Mont. at 323, 820 P.2d at 1287. Third, even where the findings are supported by substantial evidence and the court has not misapprehended the evidence’s effect, the reviewing court may determine a finding is clearly erroneous when “ ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Heavirland, ¶ 16 (quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)). “Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion, even if the evidence is weak or conflicting.” Arnold v. Boise Cascade Corp., 259 Mont. 259, 265, 856 P.2d 217, 220 (1993). It need not amount to a preponderance of the evidence, but it must be more than a scintilla. State v. Shodair, 273 Mont. 155, 163, 902 P.2d 21, 26 (1995). Although the standard is a deferential one, substantial evidence is not synonymous with clearly erroneous and a reviewing court may find that a finding is clearly erroneous even though there is evidence to support it. Heavirland, ¶ 16.
¶28 We review a District Court’s evidentiary rulings for an abuse of discretion. Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 23, 358 Mont. 474, 247 P.3d 244.
DISCUSSION
¶29 1. Did the Chief Water Judge properly admit historical documents prepared by Pondera in anticipation of litigation?
¶30 Duncan and Skelton argue that Pondera should not have been allowed to introduce its historical documentation of the water rights into evidence because the documents constitute self-serving hearsay evidence that should have been admissible only if offered against Pondera.
¶31 “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M. R. Evid. 801(c). “Hearsay is not admissible except as otherwise provided by statute, [the Montana Rules of Evidence], or other rules applicable in the courts of this state.” M. R. Evid. 802. Statements in “ancient documents” — defined as “a document in existence for twenty years or more, the authenticity of which is established” — are exceptions to the hearsay rule. M. R. Evid. 803(16).
¶32 The authenticity requirement of the ancient documents exception is a condition precedent to admissibility and “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M. R. Evid. 901(a). Rule 901(b) provides an illustration of criteria that, if met, would fulfill the authenticity requirement for ancient documents:
Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
M. R. Evid. 901(b)(8).
¶33 The Master explained that Pondera made extensive studies of the entire area and that, while “it is clear that a certain amount of that data was acquired in anticipation of potential water right litigation ... it is apparent this was not the only reason for the work.” The documents in question were prepared by Pondera employees and consist of reports, surveys, maps, hydraulic data, memoranda, and interview notes. Pondera documented visits to the diversion site by various employees and recorded numerous measurements of the flume over the years. The Master held that “[w]hile there may have been a tendency to minimize competing appropriations, it is not appropriate to dismiss all of this documentation as inadmissibly self-serving.” The Master noted that the data could help establish an approximate size of the flume.
¶34 The claimants concede that the documents have existed for well over twenty years. Pondera’s documents contain a significant amount of historical information about the diversion dating generally from 1900 to 1940. Claimants also concede that the documents are what Pondera claims them to be and that the documents were stored in a place where such documents would be kept. Authenticity, accordingly, is not in dispute.
¶35 Claimants argue instead that the documents are inadmissible because the Pondera documents do not antedate the present controversy and a motive for misrepresentation already existed when the documents were created. Claimants cite Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477 (1943), in which the U. S. Supreme Court affirmed the trial court’s determination that an accident report prepared in contemplation of litigation lacked the trustworthiness required to satisfy the business records exception to the hearsay rule. Palmer, 318 U.S. at 114, 63 S. Ct. at 481. The generally accepted view of Palmer is that “documents prepared for litigation are excluded, not on a per se basis, but rather upon an inquiry into whether such documents bear circumstantial indicia of lack of trustworthiness.” Jefferson Garden Assocs. v. Greene, 520 A.2d 173, 181 (Conn. 1987) (noting that courts may exclude documents prepared in anticipation of litigation under the Palmer test, but that the decision whether to exclude such documents requires “the exercise of appropriate discretion”). While we have previously addressed documents containing self-serving declarations, see King v. Schultz, 141 Mont. 94, 99, 375 P.2d 108, 111 (1962) and Osnes Livestock Co. v. Warren, 103 Mont. 284, 296, 62 P.2d 206, 211 (1936), we have not created a per se rule that all documents created in anticipation of litigation must be excluded.
¶36 The trial court has broad discretion to determine the admissibility of evidence. Novartis Pharms. Co., ¶ 24. The Master was convinced that the documents had sufficient circumstantial indicia of trustworthiness for admission and permissibly allowed them into evidence. Although the admissibility of Pondera’s documents was a point of contention between the parties, once the Master made his ruling regarding admissibility, both parties moved to admit Pondera documents and relied on data in the documents at the hearing. The Master and the Chief Water Judge both recognized that purely objective data was scarce and that the Pondera documents would shed some historic light on the questions before the court. The Master did not abuse his discretion in admitting the documents under the ancient document exception to the hearsay rule. The Chief Water Judge correctly did not disturb the Master’s admission of the evidence.
¶37 2. Did the ChiefWater Judge correctly reject the Master’s findings regarding certain variables used to determine the historical capacity of a flume on the Thomas ditch ?
¶38 Our de novo review begins by determining whether the Water Court correctly applied the clear error standard of review to the Master’s findings. Pursuant to Desaye and Heavirland, even when the Water Court, upon a review of the record, finds the Master’s findings supported by substantial evidence, the Water Court may still overturn those findings. If the Water Court properly rejected the Master’s findings, we will review the Water Court’s replacement findings to determine whether they are clearly erroneous. See Milliken Research Corp., 739 F.2d at 593.
¶39 The ChiefWater Judge, after an exhaustive review of the record supporting the Master’s factual determinations regarding historic flow rates, determined that the Master had misapprehended the effect of the evidence. He reasoned, in part, that the evidence did not support the Master’s calculations of the flumes’ flow rates in 1912 and 1931. He noted that the Master, in calculating the 1912 flume’s capacity, used flume dimensions in Manning’s formula that were not supported by the record or relied on by the experts. Given the importance of calculating the flume’s capacity at a given date to this proceeding, the ChiefWater Judge reasoned that the Master’s reliance on 1920 dimensions to calculate the flow rate of a 1912 flume was problematic. He also concluded that the Master’s use of a slope variable from 1912 in calculating the rebuilt 1931 flume’s capacity was not supported by the record since the 1912 flume had been completely rebuilt and the record contained no reliable slope information for the post reconstruction flume.
¶40 Our review of the record supports the Chief Water Judge’s determination. The evidence shows that the flume’s capacity was expanded between 1912 and 1920. The flume washed out in 1916 and was rebuilt by 1918; and part of the flume was rebuilt in 1920. The flume dimensions from measurements taken at those times confirm that the flume was enlarged with each reconstruction. The Master’s Report acknowledged that the flume’s height may have increased by as much as 3 inches between 1912 and 1922. In 1912, the flume was measured to be 24 inches wide and 8 inches deep. In 1918, the flume was measured to be about 24 inches wide and 10 inches deep. In 1920, the flume was measured to be 24 inches wide and 11 inches deep. By using dimensions from the 1920 report, the Master introduced error into his calculation, because the flume in place in 1920 was 3 inches taller than the one in place in 1912. None of the evidence indicated that the flume was 24 inches wide and 11 inches deep, in 1912, or that the slope was .003 in 1920.
¶41 Similarly, the evidence did not support the Master’s use of the slope of the 1912 flume in Manning’s equation to calculate the flow rate of the rebuilt 1931 flume. Expert Casne testified that “slope is a big factor” in determining flow using Manning’s formula. This variable is responsible, in part, for the wide range of results in the experts’ calculations when they used Manning’s formula to calculate the capacity of the 1931 flume. The Master used the 1912 flume’s slope, “absent a more compelling figure,” to calculate the 1931 flume’s capacity using Manning’s formula. The Master and Chief Water Judge agreed, however, that the flume had been expanded and completely rebuilt by 1931. No evidence of the flume’s slope in 1931 existed at all. The Chief Water Judge pointed out, “[t]he slope selected by the Master was taken from the earliest data available and was almost twice as steep as later slope information.” We agree with the Chief Water Judge’s determination that selecting a slope number for use in a slope-dependent formula, where no evidence of slope exists, is clearly erroneous in this context.
¶42 The Dissent, relying on Weinheimer Ranch, ¶ 19, and Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777 (1988), suggests that the Chief Water Judge incorrectly substituted his own deductions for those of the Master because the evidence supported more than one conclusion. This case is distinguishable from those cases, however. In Weinheimer Ranch, the claimant-objectors challenged the Water Court’s failure to infer that a water claim inaccurately documented the location of the point of diversion and we declined to adopt a rule that such an inference was required. Weinheimer Ranch, ¶¶ 22-24. In Zant, 486 U.S. at 224, 108 S.Ct. at 1777-78, the U.S. Supreme Court held that an appellate court had erred in replacing a district court’s finding of fact with its own because it did not apply the appropriate standard of review and the district court’s inference was not clearly erroneous in light of the evidence in the record. These cases do not prevent us from affirming a water judge’s decision when the judge correctly concludes, applying the proper standard of review, that a Master has made an inference that is not warranted by the record.
¶43 Here, the Water Court applied the correct standard of review and determined the evidence did not support the Master’s conclusion. Although it would have been more accurate for the Water Court to reason that the Master’s findings were not supported by substantial evidence, rather than determining the Master had misapprehended the effect of the evidence, this is not fatal to the court’s determination. “Unless justice requires otherwise, no error in admitting or excluding evidence — or any other error by the court or a party — is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.” M. R. Civ. P. 61. Our review of the record supports the Chief Water Judge’s determination that the Master committed clear error because the evidence did not support the variables the Master used in calculating flume capacity. It cannot be said that the Chief Water Judge substituted his view of the evidence for the Master’s when the evidence supported more than one conclusion, because the evidence did not support the Master’s findings.
¶44 Having determined that the Chief Water Judge correctly rejected the Master’s findings as clearly erroneous, we now evaluate the Chief Water Judge’s replacement findings for clear error. The record before the Water Court contained all available evidence regarding the water rights at issue. The Chief Water Judge found, and we agree, that this evidence was sufficiently substantial to adequately determine the flume’s capacity.
¶45 The Chief Water Judge’s quantification of the 1912 flume’s capacity was based squarely on testimony by the parties’ experts. Expert witness Anderson testified that Bestor’s calculation of 4.22 cfs was a reasonable estimate for the flume’s capacity. Expert witness Casne stated that the calculation of the flume’s capacity in the 1912 Bestor Report was not based on the actual capacity of the flume, but rather, on water levels in the flume. Accordingly, Casne, using Bestor’s measurements, calculated the flume’s capacity at 4.6 cfs, assuming the flume was 24 inches wide and 8 inches deep. The Chief Water Judge considered that the flume would not carry its maximum capacity at all times and so, concluded that the right was limited to the portion of the 1902 Armedia Clark appropriation that was used in the Thomas ditch, 4.5 cfs.
¶46 The Chief Water Judge’s quantification of the 1931 flume’s capacity relied on expert testimony and avoided the problem with using Manning’s formula where no evidence of slope existed. As the Chief Water Judge pointed out, flowrates calculated for the 1931 flume using Manning’s formula resulted in nearly a 300 percent variation. Manning’s formula relies heavily on slope and the slope of the 1931 flume was not known. In contrast, the variation in expert calculations of the flume’s flow rate using the formula for an inlet-controlled structure, where slope is not relevant, varied by less than 2 cfs. The Chief Water Judge concluded that, because of the huge variation, expert testimony regarding the capacity of the 1931 flume using Manning’s formula was not reliable. Instead, he determined to rely on expert numbers for an inlet-controlled structure to find the flume’s capacity was 20 cfs. The use of the inlet-control equation was consistent with the evidence and expert testimony. Expert Casne testified at the hearing that the flume would have to be 300 feet long or less to qualify as an inlet controlled structure. Estimates of the flume’s length around the time it was rebuilt in 1931 were 200-300 feet. Further, even using Manning’s formula, with the more realistic slope of .00157 documented in 1921, Expert Anderson concluded 20 cfs was a reasonable flume capacity. The Chief Water Judge’s quantification of the flume’s capacity was supported by the evidence in the record.
¶47 The Chief Water Judge correctly determined that the Master’s findings as to flume capacity are clearly erroneous. The record demonstrates that the Master erred because the evidence did not support his determinations as to flume capacities. The Chief Water Judge depended on reliable expert testimony to determine the capacities of the two flumes and associated water rights. His findings were supported by substantial evidence, the effect of which he did not misapprehend. We are not left with the impression that he made a mistake.
¶48 3. Did the Chief Water Judge correctly determine that portions of the claimants’ water rights had been abandoned or never perfected?
¶49 The Master determined that the claimants’ predecessors in interest abandoned additional water claimed under the 1895,1902, and 1913 NOAs that they were unable to use because of the flume’s limitations. The Master also determined that if the 1904 and 1906 appropriations ever had been perfected, any interest Skelton may have had in those appropriations had been abandoned. The Chief Water Judge determined that Duncan and Skelton did not have rights to the 1895 claim and effectively adopted the Master’s determination that water was abandoned for the claims based on the 1902 and 1913 NOAs. The claimants appeal these determinations on the grounds that the 1895 right was perfected in the ditch that washed out; and that the claimants’ predecessors lacked the requisite intent to abandon their rights, demonstrated by a continuous struggle to repair and expand the flume.
a. The 1895 right.
¶50 “In order to make good his claim to the right as of the date at which it was initiated, the possessor must show some contractual relation between himself and the original appropriator.” See Osnes Livestock Co., 103 Mont. at 290, 62 P.2d at 209 (quotation omitted). When land is sold, water used to irrigate the land and appurtenant thereto passes as part of the transaction unless specifically excluded. Section 85-2-403, MCA; Lensing v. Day & Hansen Sec. Co., 67 Mont. 382, 215 P. 999 (1923). Where a particular quantity of water is specified in a land sale deed, the presumption is that the seller retains any water it owns in excess of that quantity. See Kofoed v. Bray, 69 Mont. 78, 84, 220 P. 532, 534 (1923); Castillo v. Kunnemann, 197 Mont. 190, 197, 642 P.2d 1019, 1024 (1982).
¶51 The Chief Water Judge’s determination regarding the 1895 water right responded to evidence set forth by the claimants that purported to refute Pondera’s contention that the right had not been perfected on lands owned by Skelton. The judge observed that only three of the exhibits the claimants relied upon contained any information regarding the B.P. Clark right, and that two of those contained only a weak connection. Our review of the record confirms this determination. The primary piece of evidence on which the Chief Water Judge relied in addressing Skelton’s claim was the original B.P. Clark NOA. As the Chief Water Judge explained, none of the lands referenced in that NOA are currently owned by Skelton. Without some other evidence to support their claim, Skelton cannot claim a water right based on this NOA. The lands owned by Duncan and subject to the B.P. Clark NOA were conveyed in a chain of title that stemmed to Armedia Clark. The deed conveying those lands conveyed 4.5 cfs from the 1902 appropriation, reserved certain other ditch capacity related to that right and did not reference the 1895 B.P. Clark appropriation. Pursuant to the rule set forth in Kofoed, the Water Court concluded Armedia Clark had reserved any portion of the B.P. Clark right used to irrigate the land in that transfer. The fact that water was used in a ditch is not enough to cast doubt upon the Water Court’s determination as to Skelton’s claim; and Duncan presents no argument to refute the Water Court’s reasoning, instead claiming it obtained any portion of the right it abandoned through prescriptive use. Because neither claimant has any right to water based on the 1895 NOA, we need not address their arguments related to abandonment of this right. We conclude that the Water Court correctly addressed this issue.
b. The 1902 and 1913 rights.
¶52 Abandonment of a water right requires both non-use and intent to abandon. 79 Ranch v. Pitsch, 204 Mont. 426, 432, 666 P.2d 215, 218 (1983). Whether a water right has been abandoned is a question of fact that depends on “the evidence of the conduct, acts, and intent of the parties claiming the usufruct of the water.” Heavirland, ¶ 31 (quotation omitted). Intent to abandon water “need not be proved directly, but may be inferred from all the circumstances of the case.” Heavirland, ¶ 31 (quotation omitted).
¶53 The objector bears the initial burden of showing a long period of continuous non-use of the claimed water right. This showing creates a rebuttable presumption of abandonment. 79 Ranch, 204 Mont. at 432-33, 666 P.2d at 218. The burden then shifts to the claimants to produce “[s]pecific evidence explaining or excusing the long period of non-use of the particular water rights on the specific property....” In re Musselshell River Drainage Area, 255 Mont. 43, 51, 840 P.2d 577, 582 (1992). Partial use of a water right does not necessarily show intent to use the entire right or prevent a finding of partial abandonment. Holmstrom Land Co. v. Meagher Co. Newlan Creek Water Dist., 185 Mont. 409, 424, 605 P.2d 1060, 1069 (1979).
¶54 Non-use, “while not conclusive, is evidence of an intention to abandon.” 79 Ranch, 204 Mont. at 432, 666 P.2d at 218. This Court has stated that nine years of non-use is “certainly very potent evidence, if it stood alone, of an intention to abandon.” Smith v. Hope Mining Co., 18 Mont. 432, 438, 45 P. 632, 634 (1896). We have upheld the Chief Water Judge’s finding that an approximately 23-year period of non-use raised a rebuttable presumption of abandonment and that the water rights had been abandoned. In re Adjudication of Water Rights of Clark Fork River, 254 Mont. 11, 17, 833 P.2d 1120, 1124 (1992).
¶55 If an appropriator’s needs exceed the capacity of his means of diversion, moreover, then the capacity of the diversion measures the extent of his water right. Bailey v. Tintinger, 45 Mont. 154, 178, 122 P. 575, 583 (1912).
“[The holder of a water right] is entitled to only the beneficial use of the amount of water called for by his appropriation or decree when he has need therefor, and providing his distributing system has a sufficient capacity to carry such an amount of water. When his ditches are incapable of carrying the amount of water decreed to him, his right is measured by the capacity of a system of distribution, regardless of his needs.”
McDonald v. State, 220 Mont. 519, 526, 722 P.2d 598, 602 (1986) (quoting Tucker v. Missoula Light & Water Co., 77 Mont. 91, 101-02, 250 P. 11, 15 (1926) (internal citations omitted)).
¶56 We agree with the Chief Water Judge that the Master did not clearly err in determining that the claimants abandoned any water they claimed to have used that exceeded the flumes’ capacities. Neither claimant had a right to water claimed from the 1895 appropriation. The flume’s capacity limited how much water could be diverted and put to beneficial use from the other appropriations. Thus, the period of non-use for these claims ranges from 18 to 29 years — a period sufficient to raise a presumption of abandonment. Duncan and Skelton failed to present evidence sufficient to rebut this presumption. The flume’s expansion in 1931 does not conclusively demonstrate an intent to “incrementally develop” the water right as the claimants suggest. The efforts involved in maintaining the pre-1931 flume do not demonstrate an intention to maintain rights in excess of the flume’s capacity. All this evidence signals is an attempt to continue use of the amount of water carried by the 1912 flume; and to appropriate an additional quantity of water in 1931, to meet the parties’ predecessors’ needs. The Master and Water Court did not err in finding claimed water in excess of the flumes’ capacities had been abandoned.
¶57 4. Did the Chief Water Judge correctly adopt the Master’s conclusion that the claimants did not acquire any water rights by adverse possession?
¶58 The claimants contend that, if they did lose their interest in the 1895 appropriation, they or their predecessors reacquired ownership of that right through adverse possession. The Chief Water Judge approved and adopted the Master’s finding that the evidence does not support Duncan’s or Skelton’s claims to a prescriptive right to this appropriation.
¶59 In order to acquire a water right by adverse use, the claimant must show that the use has been continuous for the statutory period, exclusive, open, under a claim of right, hostile, and an invasion of another’s rights, which the latter had a chance to prevent. Havre Irrigation Co. v. Majerus, 132 Mont. 410, 415, 318 P.2d 1076, 1078 (1957); Smith v. Krutar, 153 Mont. 325, 330, 457 P.2d 459, 462 (1969). The burden of proving an adverse use rests upon the party alleging it. Krutar, 153 Mont. at 329, 457 P.2d at 461.
¶60 Applying these rules, in order to prove adverse use, Duncan or Skelton must show that they or their predecessors used water at a time when the owner of the right to use the water had need of it, used it in such a substantial manner as to notify the owner that it was being deprived of water to which it was entitled; and that during all of that period, the owner could have maintained an action against him for so using the water. Krutar, 153 Mont. at 330, 457 P.2d at 462.
¶61 The Master found that “[a]dverse possession does not apply to Skelton.” The Water Court’s determination was consistent with this conclusion: Duncan’s predecessor presumably used all or close to all of the 4.5 cfs water right carried in the 4.6 cfs capacity 1912 flume before Skelton could attempt to use it, as Duncan’s property was located upstream of Skelton’s. The Master concluded, and the Water Court ultimately agreed, that Skelton is not entitled to claim any water from the 1895 appropriation based on adverse possession.
¶62 The Master similarly concluded that Duncan was not entitled to any portion of the 1895 appropriation based on adverse use. The Master found that, for some of Duncan’s claims, “[t]here is simply insufficient evidence to support adverse possession of any of these shares of the 1895 and 1902 appropriations by [Duncan’s predecessor].” For other shares, the Master found that the testimony presented at the hearing was not sufficient to show that Duncan’s use was exclusive or hostile. The Water Court did not address these findings and apparently adopted them.
¶63 A reviewing Court cannot substitute its own judgment for the trier of fact. Desaye, 250 Mont. at 324, 820 P.2d at 1288. We must give due regard, as did the Chief Water Judge, to the Master’s ability to judge the credibility of the witnesses. Desaye, 250 Mont. at 324, 820 P.2d at 1287-88 (citing M. R. Civ. P 52(a)). Based on a thorough review of the record, we hold that the Master’s findings regarding adverse possession, which the Chief Water Judge adopted, are supported by substantial evidence, the court has not misapprehended the effect of the evidence, and the court did not commit a mistake in interpreting the evidence on this issue. The Water Court correctly concluded that the claimants did not adversely possess rights to the 1895 appropriation.
CONCLUSION
¶64 For the reasons set forth above, the Water Court’s opinion is affirmed.
CHIEF JUSTICE McGRATH, JUSTICE McKINNON, and DISTRICT JUDGE TUCKER, sitting for former JUSTICE MORRIS concur.
|
[
23,
29,
38,
-55,
13,
-11,
42,
28,
18,
81,
18,
-48,
54,
15,
19,
-24,
-65,
-33,
10,
-46,
0,
-14,
31,
15,
0,
22,
-57,
-46,
2,
-27,
-29,
57,
-99,
-14,
9,
14,
-7,
45,
-33,
-55,
6,
30,
-53,
-28,
2,
34,
-38,
-23,
-20,
12,
29,
8,
8,
-27,
-49,
9,
-53,
30,
-56,
6,
-12,
27,
2,
12,
45,
67,
-11,
-36,
60,
-1,
-56,
15,
-3,
-23,
-4,
57,
57,
-6,
-30,
-8,
-51,
58,
-30,
11,
21,
-18,
-26,
-9,
101,
23,
4,
-32,
6,
-47,
2,
-21,
-5,
-32,
-50,
8,
-13,
2,
24,
-20,
-26,
-66,
-66,
-16,
10,
3,
21,
-5,
8,
-41,
-30,
-3,
21,
-19,
4,
-37,
-23,
26,
-47,
51,
-88,
-2,
1,
-21,
-3,
40,
-30,
-43,
-21,
-9,
10,
-6,
-23,
-21,
12,
-11,
82,
-36,
26,
-11,
1,
68,
-16,
-44,
28,
-7,
-9,
51,
-26,
-18,
-4,
-7,
8,
-54,
-20,
-2,
-4,
24,
30,
-9,
-41,
55,
27,
-44,
30,
-22,
30,
-42,
-9,
11,
40,
-16,
4,
-3,
-31,
0,
26,
-11,
4,
-27,
-1,
44,
0,
42,
-24,
67,
-37,
-20,
29,
-16,
-34,
-18,
12,
-25,
17,
35,
-1,
29,
-13,
9,
-11,
29,
-22,
-12,
34,
-39,
10,
26,
44,
-13,
25,
-32,
49,
-54,
12,
-43,
60,
19,
66,
-18,
45,
25,
21,
39,
1,
-25,
-18,
-15,
63,
-22,
9,
54,
5,
-14,
-55,
-9,
-35,
8,
-14,
24,
33,
-3,
-65,
-19,
-20,
49,
-48,
-43,
-39,
4,
-2,
-38,
0,
-5,
13,
-35,
40,
-6,
12,
-19,
-43,
-4,
-46,
-17,
36,
24,
54,
21,
2,
6,
-57,
-14,
12,
-10,
-20,
39,
23,
-24,
-12,
-9,
28,
-5,
-26,
-25,
-29,
18,
-7,
-4,
-54,
-31,
-13,
18,
18,
-43,
32,
-17,
-40,
-24,
-9,
52,
-17,
0,
-73,
32,
27,
30,
81,
41,
-12,
12,
-18,
5,
-2,
-16,
18,
-7,
11,
25,
36,
-28,
-85,
39,
-28,
0,
0,
48,
-29,
50,
-32,
-11,
49,
-40,
26,
21,
-47,
4,
-6,
-22,
21,
-12,
-6,
-14,
22,
-25,
-12,
-10,
-3,
89,
2,
32,
19,
-19,
10,
-13,
-68,
-4,
-2,
-11,
-16,
-9,
7,
32,
6,
-2,
67,
-47,
-68,
43,
28,
7,
72,
-1,
4,
40,
-34,
0,
-18,
-29,
7,
39,
81,
-12,
-3,
-29,
-18,
20,
-2,
-44,
-71,
92,
19,
26,
-16,
-22,
-40,
-6,
5,
-8,
39,
-1,
5,
32,
-18,
-35,
4,
9,
25,
-17,
-23,
-61,
-28,
-5,
3,
46,
-10,
32,
-4,
-9,
-28,
-33,
26,
12,
79,
-22,
-20,
51,
-9,
81,
-40,
37,
-8,
19,
8,
-5,
-87,
23,
-15,
-3,
20,
-74,
-1,
-17,
27,
-18,
21,
3,
-27,
49,
-22,
4,
-20,
42,
20,
-20,
-6,
10,
-40,
58,
16,
-38,
-21,
-1,
16,
-14,
8,
16,
35,
62,
6,
-42,
10,
50,
-12,
27,
-18,
-57,
42,
-9,
-61,
19,
27,
-46,
14,
0,
62,
19,
20,
46,
-11,
-101,
-7,
-31,
19,
-28,
19,
5,
20,
-5,
-12,
-9,
-30,
-9,
-19,
2,
-25,
62,
40,
-47,
19,
-51,
-85,
-14,
60,
-19,
-17,
43,
18,
-5,
0,
28,
-27,
17,
-37,
-76,
63,
10,
-36,
45,
-34,
32,
-43,
10,
-1,
5,
60,
-1,
-18,
5,
25,
10,
-84,
15,
-38,
-85,
-16,
-51,
-6,
-14,
19,
53,
-2,
21,
-51,
-47,
1,
-20,
23,
19,
-14,
-31,
15,
38,
24,
10,
11,
-3,
-5,
28,
21,
-55,
17,
-33,
-22,
11,
24,
74,
-52,
-34,
0,
-30,
-33,
31,
43,
17,
-21,
19,
-10,
-20,
-44,
19,
-30,
9,
25,
-11,
-41,
38,
71,
-40,
6,
22,
12,
38,
8,
-78,
-4,
22,
20,
-20,
31,
67,
28,
19,
40,
-96,
43,
27,
-6,
-54,
5,
24,
-14,
9,
-33,
-11,
22,
3,
-5,
-47,
-21,
-33,
9,
-47,
-32,
29,
-25,
23,
16,
-35,
-2,
-37,
-26,
-46,
-2,
-33,
7,
-34,
-18,
66,
44,
-43,
20,
22,
-28,
15,
28,
-9,
54,
0,
26,
-18,
-84,
29,
69,
41,
-19,
41,
31,
-6,
0,
18,
12,
-53,
39,
-19,
17,
17,
11,
-14,
39,
10,
48,
-44,
64,
-9,
8,
24,
11,
80,
6,
30,
28,
-64,
-7,
-18,
-40,
-12,
-4,
-5,
30,
21,
7,
-12,
-9,
-19,
30,
15,
7,
-5,
26,
60,
-36,
-39,
-3,
16,
-2,
-6,
26,
-4,
-40,
-6,
13,
-11,
-16,
-11,
-31,
49,
-9,
40,
72,
36,
36,
62,
-5,
47,
22,
-29,
21,
-6,
16,
12,
6,
29,
26,
19,
-17,
2,
16,
-12,
-26,
18,
-35,
-29,
-4,
2,
6,
-25,
68,
-34,
-18,
-30,
6,
-71,
21,
0,
30,
28,
13,
-16,
-9,
10,
28,
-26,
-35,
47,
65,
0,
-60,
-25,
-47,
-15,
-11,
1,
59,
25,
6,
-25,
-32,
-2,
-18,
-32,
-10,
25,
-8,
26,
-32,
24,
-19,
13,
39,
31,
31,
10,
25,
-17,
14,
52,
-77,
33,
-1,
-1,
30,
-13,
-51,
32,
21,
-10,
20,
-4,
-15,
3,
-10,
30,
3,
-19,
-41,
-1,
31,
-48,
14,
52,
35,
-4,
28,
19,
1,
-58,
-47,
-13,
2,
-76,
1,
-30,
11,
-8,
-30,
38,
10,
12,
7,
48,
9,
-49,
-6,
-18,
45,
41,
40,
18,
29,
15,
34,
-73,
50,
0,
-55,
37,
26,
-13,
-44,
-1,
-24,
0,
-10,
37,
41,
-65,
-1,
39,
-35,
-11,
14,
-30,
41,
-3,
51,
58,
43,
-68,
-4,
33,
-20,
-12,
-6,
-76,
-14,
4,
-29,
12,
0,
-6,
-40,
-45,
-11,
0,
25,
44,
-20,
-41,
5,
-44,
-9,
-54,
-28,
-28,
-23,
110,
15,
-8,
-23,
-2,
-52,
-2,
-49,
1,
-23,
54,
-37,
20,
-21,
-8,
-19,
32,
-7,
20,
-33,
-35,
19,
-73,
27,
45,
10,
-4,
3,
-59,
2,
37,
34,
19,
-24,
38,
80,
-4,
-50,
30,
37,
-87,
-3,
10,
-12,
-4,
-23,
13,
-5,
76,
-31,
-2,
0,
-2,
1,
-29,
6,
40,
-25,
33,
9,
-32,
36,
-21,
-81,
16,
3,
-8,
-10,
-43,
-9,
28,
-19,
26,
7,
5,
28,
9,
2,
11,
-66,
15,
10,
24,
-46,
11,
68,
43,
-9,
-17,
21,
-27,
17,
-35,
-17,
-36,
-16,
-19,
50,
-4,
-18,
39,
-8,
-14,
-3,
-10
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Dan Weinberg, Ed McGrew, Let Whitefish Vote, Mary Person, and Marilyn Nelson (collectively Intervenors), and City of Whitefish (City) appeal from the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to Lyle Phillips, Anne Dee Reno, Turner Askew, and Ben Whitten (collectively Plaintiffs) and the Board of Commissioners of Flathead County (County). Plaintiffs filed this action after voters in Whitefish passed a referendum repealing Resolution 10-46, which authorized the City to enter into an interlocal agreement with the County concerning planning and zoning authority over a two-mile area surrounding the City, commonly referred to as the extraterritorial area (ETA), or the “donut.” On cross-motions for summary judgment, the District Court held that the Resolution was not subject to the right of voter initiative and referendum. The following issues have been raised on appeal:
¶2 1. Did the District Court err by not dismissing the suit as untimely?
¶3 2. Did the District Court err by determining that Resolution 10-46 was an administrative act by the City that was not subject to repeal by referendum?
¶4 3. If Intervenors are entitled to summary judgment and the referendum is valid, is the 2005 Interlocal Agreement restored?
¶5 We affirm the District Court on issues one and two, and do not reach issue three.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 A city may adopt a growth policy and implement zoning and subdivision regulation in an area beyond the city limits only if the county has not “adopted zoning or subdivision regulations” in that area. Section 76-2-310(1), MCA. Likewise, a city may enforce its zoning and subdivision regulations in the extended area only “until the county board adopts a growth policy ... and accompanying zoning or subdivision resolutions that include the area.” Section 76-2-311(1), MCA. Thus, by statute, a city’s authority to zone and regulate outside its boundaries is limited to instances where the county has not exercised its authority, and only until the county does so.
¶7 State law also provides geographical limits for a city’s exercise of zoning and subdivision authority outside its boundaries. As a city designated by statute of the second class, according to its population, § 7-1-4111(2), MCA, Whitefish could extend its regulations for up to two miles beyond the city limits, § 76-2-310(l)(b), MCA. State law also allows local governments to create joint planning boards, § 76-1-112(1), MCA, and to enter into interlocal agreements concerning joint provision and maintenance of various services, § 7-11-104, MCA.
¶8 The histoiy of this matter begins in 1967, when the City and County jointly created the Whitefish City-County Planning Board (Planning Board). The Planning Board was given planning jurisdiction over the area extending four and one-half miles from city limits, and the City exercised exclusive zoning authority in the area up to one mile beyond city limits, in accordance with then-applicable law and the consent of the County. These jurisdictional areas for planning and zoning were set without a formal interlocal agreement.
¶9 In 2005, after two years of negotiation, the City and County entered a formal agreement. This 2005 interlocal agreement (2005 IA) reduced the Planning Board’s jurisdictional area from four and one-half miles to two miles outside the city limits, while providing for the City’s exclusive authority to establish and enforce zoning, subdivision, floodplain, and lakeshore protection regulations, as well as authority to adopt and amend a growth policy, for an area two miles beyond the city limits. By its terms, the 2005 IA could not be altered or terminated without the mutual consent of the parties.
¶10 In 2008, the City adopted the Critical Areas Ordinance (CAO), which imposed zoning restrictions in the donut to protect lakes, streams, wetlands, and drainage areas from development. The County opposed the CAO and advised the City that if it was adopted, the County would withdraw from the 2005 IA. Following the adoption of the CAO, the County passed a resolution to withdraw from the 2005 IA. The City filed a lawsuit (2008 lawsuit) that sought to uphold the 2005 IA, and for a declaration that the County could not unilaterally withdraw from the agreement. The County countered that the mutual consent provision for termination in the 2005 IA was unenforceable because it did not address duration as required by the Interlocal Agreement Act, and thereby permanently prevented the County from adopting regulations for the donut as authorized by state law. The County, and intervenors in that case, also argued that the 2005 IA was an unconstitutional delegation of authority from the County to the City, and that interlocal agreements were only allowed for provision of services rather than legislative matters. The District Court denied a preliminary injunction that would have prevented the County from taking any planning or zoning action in the donut during the pendency of the lawsuit, and summarily declared the 2005 IA to be unenforceable. On appeal, this Court reversed that ruling as a premature decision on the merits, entered an injunction, and remanded for trial. City of Whitefish v. Bd. of Co. Commrs. of Flathead Co., 2008 MT 436, ¶¶ 17-18, 347 Mont. 490, 199 P.3d 201.
¶11 After remand, the City and County sought an extension of time from the District Court to allow opportunity for settlement discussions. The parties created a joint committee of elected officials and City and County residents (resolution committee) to attempt to resolve the issues by negotiation. Over approximately eight months, the resolution committee held ten public meetings and ultimately proposed amendments to the 2005 IA to provide County oversight of the City’s exercise of zoning jurisdiction in the donut, allow either party to terminate the IA after giving one year’s notice and participating in alternative dispute resolution (ADR), and set a five-year duration term subject to renewal by the parties. As the City and County both had to agree, the proposed changes were further discussed at public meetings of the City Council and County Commissioners. The City formally undertook consideration of the new agreement (2010 IA) by way of Resolution 10-46. On November 15, 2010, the City Council passed Resolution 10-46, which authorized the City Manager to sign the 2010 IA on behalf of the City. At the same meeting, the City Council passed Resolution 10-47, which authorized the City to seek dismissal of the 2008 lawsuit. On November 30, 2010, the County Commissioners adopted a resolution identical to Resolution 10-46 authorizing the County to enter the 2010 IA. As required by the 2010 IA, the City and County filed a joint motion to dismiss the 2008 lawsuit, offering to the District Court that the litigation was moot because the 2010 IA was fully in effect and specifically replaced the 2005 IA. Intervenors in that case opposed dismissal. The District Court dismissed the action on July 11, 2011, reasoning that the 2010 IA had rendered the 2005 IA void and resolved the issues between the parties.
¶12 After passage of Resolutions 10-46 and 10-47 by the City Council, citizens who would become Intervenors in this case, and other City residents unhappy with the decision, began collecting signatures to put a referendum on the ballot to repeal Resolution 10-46, which had authorized the City to enter the 2010 IA. The referendum petition was approved as to form and compliance with state law on January 11, 2011. Sufficient signatures were gathered, and on April 24,2011, the County Election Department certified the ballot measure for the November election. The Referendum explained that the 2010 IA permitted termination by either party without cause, but did not reference Resolution 10-47 or the dismissal of the 2008 lawsuit. In light of the development of this challenge to the 2010 IA and the likelihood of further legal disputes, the County passed a resolution on June 22,2011, giving notice to the City that it was withdrawing from the 2010 IA.
¶13 The Referendum seekingrepeal of Resolution 10-46 was placed on the ballot and voted on by City residents. Citizens residing in the donut were not permitted to vote on the Referendum. The Referendum passed by a two-to-one margin in the November 2011 election. Following the election, the City deemed the 2010 IA as rescinded and no longer in effect. The City further took the position that after the 2010 IA was revoked, the 2005 IA was reinstated in its entirety, and the City was authorized once again to exercise exclusive jurisdiction in the donut.
¶14 The present lawsuit challenging the validity of the Referendum was filed by Plaintiffs, residents of both the City and the County, on December 20, 2011, four days after the Flathead County Clerk and Recorder certified the results of the Referendum. Plaintiffs claimed the citizens’ power of referendum and initiative did not extend to Resolution 10-46 because the decision to enter into the agreement was contractual and administrative in nature. The City filed a third-party complaint against the County, alleging that the County breached the 2010 IA by taking steps to adopt zoning regulations prior to the expiration of the one-year notice period and, on the assumption that the 2005 IA had been reinstated, that the County had breached the 2005 IA by unilaterally withdrawing from it. The County counterclaimed against the City, alleging it breached the 2010 IA by failing to carry out the required mediation process, and that such breach excused the County from any further performance under the 2010 IA. The District Court granted an unopposed motion to intervene by the Intervenors, who sought to defend the citizens’ passage of the Referendum. Intervenors asserted the suit should be dismissed as untimely because of Plaintiffs’ failure to bring the action within 14 days of approval of the referendum petition, citing § 7-5-135(1), MCA, and the doctrine of laches. The District Court granted Intervenors’ motion for an injunction, on stipulation of the City and the County, enjoining the County from taking any action to adopt a County growth policy, zoning regulations, or subdivision regulations for the donut pending further order of the court.
¶15 The District Court determined the suit was timely because the 14-day timeframe in § 7-5-135(1), MCA, only applied to the “governing body,” and no statute provided a deadline for citizens to file a challenge to a referendum. The court did not separately consider the doctrine of laches. On cross-motions for summary judgment, the District Court determined Resolution 10-46 was an administrative act and therefore not subject to the power of referendum and initiative. The court granted summary judgment for Plaintiffs and the County. Intervenors and the City appeal.
STANDARD OF REVIEW
¶16 We review a district court’s grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria applied by the district court. Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294 P.3d 382. A moving party is entitled to summary judgment when the party “demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law.” Harris, ¶ 11. “[T]he fact that both parties moved for summary judgment does not establish the absence of genuine issues of material fact.” Steadele v. Colony Ins. Co., 2011 MT 208, ¶ 14, 361 Mont. 459, 260 P.3d 145. Rather, we must carefully evaluate each motion on its own merits. Steadele, ¶ 14. In the present case, we agree with the parties that there are no genuine issues of material fact, leaving only the question of entitlement to judgment as a matter of law. Questions of law are reviewed to determine if the district court’s conclusions are correct. Harris, ¶ 11.
¶17 The City argues that we must give the Referendum a “presumption of constitutionality and validity” because after passage it was a legislative enactment and must be afforded the same presumption granted to a law enacted by the Legislature. See Ravalli Co. v. Erickson, 2004 MT 35, ¶ 17, 320 Mont. 31, 85 P.3d 772 (“constitutionality of an enacted legislative statute is prima facie presumed”); Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 33, 315 Mont. 107, 67 P.3d 892. Based on this presumption, the City argues we must apply an “unconstitutional beyond a reasonable doubt” standard. See Ravalli Co., ¶ 17 (“A party challenging the constitutionality of a statute must prove the statute unconstitutional beyond a reasonable doubt.”); Hardy, ¶ 33. While we have previously determined that this standard does not apply to proposed ordinances and referendums, Ravalli Co., ¶¶ 17-18, we have not directly addressed its application to referendums or initiatives after they have been passed. Here, the Referendum rescinded a prior action; it did not create a new law or dictate a future action. Additionally, to deem the Referendum a “validly passed legislative enactment” would put the analytical cart before the horse where the central issue before us is the validity of the Referendum in rescinding Resolution 10-46. We therefore conclude that this standard is not appropriate here, and instead review the District Court’s conclusions of law regarding the character of Resolution 10-46, which, in turn, determines the legality of the Referendum, for correctness.
DISCUSSION
¶18 1. Did the District Court err by not dismissing the suit as untimely?
A. Were Plaintiffs required to challenge the proposed referendum within 14 days of the petition being approved?
¶19 Section 7-5-135(1), MCA, provides that “[t]he governing body may direct that a suit be brought in district court by the local government to determine whether the proposed action [in an initiative or referendum] would be valid and constitutional. The suit must be initiated within 14 days of the date a petition has been approved as to form under 7-5-134.” No statute governs when a non-government party, such as a private citizen, must file suit to challenge an initiative or referendum. However, Intervenors and the City argue that because Plaintiffs relied on § 7-5-131 et seq., MCA, the deadline for filing a challenge provided in § 7-5-135(1), MCA, applies. The District Court held this argument was “not well taken,” as the language of the statute applies only to local governments, and because the argument on timeliness was abandoned by not making “reference in its reply brief to this issue.” Although we disagree with the court’s reasoning that failure to address the issue again in a reply brief waives the argument, we agree with the court’s ultimate conclusion.
¶20 When interpreting a statute, it is the Court’s obligation to construe it according to its plain meaning. Ravalli Co., ¶ 11. This Court can neither insert what has been omitted, nor omit what has been inserted. City of Missoula v. Cox, 2008 MT 364, ¶ 11, 346 Mont. 422, 196 P.3d 452 (citing § 1-2-101, MCA). The plain language of § 7-5-135(1), MCA, limits application of the 14-day deadline for filing a challenge to “the local government.” In this case the local government would presumably be the City, which chose not to file suit but instead proceeded in accordance with the ballot measure. The instant case was filed by private citizens after the City failed to do so. No statute places a time limit on a challenge brought by private citizens, and no argument has been made that such a challenge is not permissible. Because § 7-5-135(1), MCA, does not apply, the District Court did not err by concluding the filing of this case was not in violation of the 14-day deadline provided by the statute.
B. Was the suit untimely based upon the doctrine of laches?
¶21 Intervenors also argued that the doctrine of laches required dismissal of the suit as untimely. The District Court did not specifically address this argument.
¶22 Laches is an equitable doctrine by which a court may deny relief to a party who has “unreasonably delayed or been negligent in asserting the claim, when the delay or negligence has prejudiced the party against whom relief is sought.” Montanans v. State ex rel. McGrath, 2006 MT 277, ¶ 23, 334 Mont. 237, 146 P.3d 759 (citing Black’s Law Dictionary 879 (Bryan A. Gamer ed., 7th ed., West 1999)). For laches to apply, there must be a showing “that the passage of time has prejudiced the party asserting laches or has rendered the enforcement of a right inequitable.” Cole v. State ex rel. Brown, 2002 MT 32, ¶ 25, 308 Mont. 265, 42 P.3d 760 (citing Kelleher v. Bd. of Soc. Work Examrs., 283 Mont. 188, 191, 939 P.2d 1003, 1005 (1997) (internal citations omitted)).
¶23 In Cole, we applied the doctrine of laches to dismiss a suit brought by citizens alleging procedural defects in a term-limit initiative that had been voted on and passed nine years earlier. We noted that allowing the challenge to proceed at such a late stage “would prejudice those who have relied upon its presumptive validity,” including at least some executive officers and state legislators who left office based upon that presumed validity. Cole, ¶ 32.
¶24 Intervenors focus on the failure of Plaintiffs to file sooner, but fail to address the laches requirement of prejudice. While Intervenors assert that the suit could have been brought earlier, they fail to provide support for why the suit must have been brought earlier. Intervenors point to cases in which this Court has allowed a preelection challenge to be heard, such as Reichert v. State ex rel. McCulloch, 2012 MT 111, ¶ 59, 365 Mont. 92, 278 P.3d 455 (in the event that a challenged measure is facially defective, “the courts have a duty to exercise jurisdiction and declare the measure invalid”), and Ravalli Co., ¶ 19 (holding § 7-5-135(1), MCA, requires review of the constitutionality of the substance of a proposed initiative). While these cases speak to the courts’ duty to hear a pre-election challenge of a facially defective ballot initiative or referendum when brought, they do not impose a duty upon citizens to bring a pre-election challenge or lose the opportunity to do so.
¶25 Intervenors offer that by the time the vote was conducted,
(a) referendum supporters had successfully campaigned for repeal; (b) taxpayers had to bear the cost of the referendum, and election officials were forced to administer it; and (c) perhaps most importantly, they as opponents of the referendum had tried but failed to defeat the referendum in their own first-bite effort at the ballot box.
Intervenors conclude by arguing that equity favors the “more than 1,400 City voters who exercised their constitutionally-protected rights, [over] the few Plaintiffs (and their counsel) who indisputably delayed without cause and initiated this lawsuit several months after it could have been raised.”
¶26 While the election process certainly resulted in both a financial and time cost to citizens and taxpayers, such a cost is inherent in any election. To adopt the position advocated by Intervenors would be tantamount to requiring all challenges to a ballot measure be brought prior to election. Such a rule cannot be supported based upon the limited protections available under the doctrine of laches.
¶27 We conclude that filing a legal challenge to the Referendum four days after the results were certified was not an unreasonable delay or negligent assertion of rights sufficient to warrant dismissal based upon laches, where there has been no demonstration of prejudice or inequity aside from the ordinary cost of the election process. Contrary to Intervenors’ assertion, this holding does not provide “disgruntled citizen[s] ... a completely open-ended and unchecked window of time to challenge a local referendum or initiative effort.” Laches is an equitable doctrine that is dependent on the factual circumstances. Here, there has not been a demonstration of necessary prejudice or inequity to warrant dismissal under the doctrine.
¶28 2. Did the District Court err by determining that Resolution 10-46 was an administrative act by the City that was not subject to repeal by referendum?
¶29 The powers of government are separated into three branches: legislative, executive, and judicial. Mont. Const, art. Ill, § 1. At the state level, the separation of powers clause prohibits any person belonging to one branch from exercising any power belonging to either of the others, unless the Constitution expressly provides otherwise. Mont. Const, art. Ill, § 1. The power to make and repeal laws resides in the legislative branch. Mont. Const, art. V, § 1. The Montana Constitution also “reserves to the people of this State the powers to challenge and enact laws through the referendum and initiative processes.” Whitehall v. Preece, 1998 MT 53, ¶ 15, 288 Mont. 55, 956 P.2d 743 (citing Mont. Const. art. V, § 1 (“The people reserve to themselves the powers of initiative and referendum.”)). This power of referendum and initiative is limited to “any act of the legislature except an appropriation of money.” Mont. Const, art. Ill, § 5(1). No similar power is granted over acts of the judiciary or the executive branch.
¶30 In contrast to the powers of state entities, “[l]ocal governing bodies are empowered to exercise legislative, administrative, and other powers pursuant to Article XI, Section 4, Mont. Const.” Whitehall, ¶ 19. Article XI, Section 8 requires the Legislature to extend the power of referendum and initiative “to the qualified electors of each local government unit.” The Legislature has codified the power of referendum over the actions of local governments in § 7-5-131, MCA, which provides that “[Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government” may be repealed by referendum. (Emphasis added.)
¶31 In Whitehall, ¶ 17, we explained that “[t]his Court has long recognized a distinction between legislative and administrative or quasi-judicial acts in relation to the powers of initiative and referendum; legislative acts have been held subject to referendum, while administrative or quasi-judicial acts have not.” This distinction “applies in virtually all other jurisdictions” and is based upon the “sound rationale” that “referenda on executive and administrative actions would hamper the efficient administration of local governments.” Whitehall, ¶ 21 (quotation omitted). The efficiency rationale is balanced against the obligation to broadly construe initiative and referendum powers to maintain maximum power in the people. Whitehall, ¶ 18. Thus, fundamentally, whether the citizens of Whitefish had the ability by referendum to repeal Resolution 10-46 hinges on whether the action by the City was administrative or legislative in nature.
¶32 As an initial matter, the City offers the argument that § 7-5-131, MCA, and the Whitehall distinction between a legislative versus administrative act of a local government are unconstitutional. The argument rests entirely upon the special concurrence of Justice Nelson in Greens at Fort Missoula, LLC v. City of Missoula, 271 Mont. 398, 897 P.2d 1078 (1995). In Greens, Justice Nelson argued that the Constitution did not contain language distinguishing a “legislative act versus administrative or quasi judicial act,” and that the Court’s recognition of such a distinction violated rules of construction. Greens, 271 Mont. at 408, 897 P.2d at 1083 (Nelson, J., concurring). Plaintiffs and the County counter that this argument by the City is impermissibly raised for the first time on appeal and without giving notice to the Attorney General’s office as required by M. R. Civ. P. 5.1(a) and M. R. App. P. 27. We agree, and further note that the Court addressed this argument in Whitehall, ¶¶ 17-25, wherein we declared the statute to be constitutional and “reaffirm[ed] that under Montana’s Constitution, the people have retained the powers of initiative and referendum as to legislative acts only.” Justice Nelson changed his position in Whitehall, stating that having “the benefit of extensive briefing and oral argument on the issue, I agree that my concurrence in [<Greens] did not correctly interpret the phrase ‘any act of the legislature.’ ” Whitehall, ¶ 42 (Nelson, J., concurring).
¶33 Though it is easy to state a rule recognizing the power of referendum or initiative over legislative matters and rejecting such power over administrative matters, determining whether a particular local government action is legislative or administrative can be difficult. We noted in Whitehall, ¶ 26, that the “denomination of an act of local government as a resolution or as an ordinance is not dispositive as to whether the act is legislative or administrative; that determination is fact-driven.” We then adopted guidelines stated by the Supreme Court of Kansas to aid in distinguishing legislative and administrative acts of government. These guidelines are:
1. An ordinance that makes new law is legislative, while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance.
2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative.
3. Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of a policy.
4. No one act of a governing body is likely to be solely administrative or legislative, and the operation of the initiative and referendum statute is restricted to measures which are quite clearly and fully legislative and not principally executive or administrative.
Whitehall, ¶ 28 (quoting Wichita v. Kan. Taxpayers Network, 874 P.2d 667, 671-72 (Kan. 1994)).
¶34 Encapsulating the issue, the fourth guideline posits that an act of a governing body is not likely to be either solely legislative or solely administrative, underscoring that these cases are not black and white, and contain a mixture of considerations. See McAlister v. City of Fairway, 212 P.3d 184, 193 (Kan. 2009) (quoting Rauh v. City of Hutchinson, 575 P.2d 517, 523 (Kan. 1978)) (“ ‘the determination of whether a municipality has acted in its legislative or administrative capacity is indeed difficult and by no means consistent. Each case must be determined on its particular facts and even then there is no unanimity of opinion.’ ”). Referendum is to be restricted to acts that have a “fully” legislative purpose, and are not “principally” administrative. This overarching principle prompts the parties’ arguments over what Resolution 10-46 and the 2010 IA actually were and actually did — their substance and effect.
¶35 Plaintiffs argue that the 2010 IA and Resolution 10-46, which approved the IA, constituted a settlement agreement for the 2008 lawsuit because dismissal of the lawsuit was the consideration for entering the agreement. They also note that only those provisions of the 2005 IA that were challenged in the 2008 lawsuit were changed by the 2010 IA. Intervenors and the City argue that the District Court erred by concluding that Resolution 10-46 approved the 2010 IA in order to settle the lawsuit. They assert that only Resolution 10-47 concerned settlement of the lawsuit, while Resolution 10-46 was separate and distinct from the settlement.
¶36 A review of the record reveals that Resolution 10-46 states five times that the 2010 IA was being entered for the purpose of settling the 2008 lawsuit. Resolution 10-46 begins by noting that the City and County “have conducted extensive negotiations regarding modifications to the [2005 IA] concerning the City’s Extraterritorial Planning and Zoning Jurisdiction and resolution of the lawsuit.” (Emphasis added.) It further states that “in consideration for the dismissal of the lawsuit between the City and the County and in reliance of and anticipation of the dismissal, the parties agreed to amend the Interlocal Agreement a third time [by the proposed 2010 IA].” (Emphasis added.) Resolution 10-47 adds that the 2010 IA was entered “in consideration for the dismissal of the lawsuit ... and in reliance of and anticipation for the dismissal.” (Emphasis added.) The 2010 IA itself explains that the changes in the 2005 IA were being made in consideration for settling the lawsuit.
¶37 The record from the November 1,2010 City Council meeting that addressed Resolution 10-46 indicates that the amendments to the 2005 IA were recommended by the joint City and County committee that was created to find “options and ways to settle the current lawsuit regarding the [IA].” The minutes note the City and County conducted joint work sessions “to consider the various amendments to the IA their separate interests, concerns, and mutual interests to resolve the litigation.” As recorded, the Council’s discussion at the November 1st meeting of then-proposed Resolution 10-46 was almost exclusively directed toward the settlement of the lawsuit, including what language should be added to the IA and what process should be utilized in order to ensure the lawsuit was dismissed despite the opposition from intervenors in that case. The minutes state:
the City and County [have] several options to ensure that their adoption of a new IA ends the lawsuit. We felt the City and County could agree to dismiss the lawsuit and then sign the new IA after the litigation is dismissed. Or we could add language in the new IA to memorialize our agreement to work together in a cooperative effort and end the litigation. In consideration of resolving the litigation we have agree[d] to the third amendments to the 2005 HA]. [City Attorney VanBuskirk] said she would work with the County to prepare language for the 3rd amendment to the IA to reflect that in consideration for settling the lawsuit the City and County have agreed to the new terms of the 2005 IA.... The timing of the dismissal of the lawsuit would follow the actual execution of the [2010 IA].
¶38 The minutes explain that this language was critical because if the lawsuit was not dismissed, the 2010 IA would lack consideration and the litigation over the 2005 IA could continue:
However, if the Court doesn’t dismiss the lawsuit because of the Intervenors’ position, the lawsuit would continue on the present litigation issues based on the 2005 Interlocal Agreement.
... Attorney VanBuskirk said the new IA should contain the language that in consideration of the dismissal of the lawsuit, the parties agreed to the terms of the new IA. If the lawsuit is not dismissed then it would not be advisable to waive their opportunity to continue the litigation in support of the 2005 agreement.
(Emphasis added.) The minutes further demonstrate that the lawsuit was a dominant topic of discussion in the Council’s decision to approve the new IA at the meeting where it was passed. It is clear that the settlement of the lawsuit and the approval of the 2010 IA by the Council, as implemented by Resolution 10-46, were inextricably tied together. Although Resolution 10-47 technically authorized the City to seek dismissal of the 2008 lawsuit, approval of the 2010 IA by Resolution 10-46 was expressly conditioned upon such dismissal and would not have been honored by the City if dismissal had not been granted by the court. Plaintiffs are correct that, beyond authorization to enter the 2010 IA, Resolution 10-46 was substantially related to the agreement to settle the 2008 lawsuit over the 2005 IA.
¶39 The first Whitehall guideline recognizes that legislative actions are typically permanent or general in character while those actions that are temporary or limited in effect are administrative. If the action declares a new policy or plan it is generally legislative. If the action pursues a plan previously adopted by the local government, or by a superior legislative body, it is administrative. Whitehall, ¶ 28.
¶40 City and Intervenors contend that the 2010 IA constituted a new policy that made significant, generally applicable changes to land-use and zoning policies. They argue that by eliminating the mutual consent provision, and allowing the County to withdraw for any reason with only one year’s notice, the City “relinquished its sole jurisdictional authority over the ETA” and “in essence transferred control of planning and zoning in the ETA from the City to the County.” Because of the potential impact on zoning and planning, the City argues that our holding in Greens is dispositive.
¶41 In Greens, after Fort Missoula was purchased by a private developer and annexed to the city of Missoula, the city enacted an ordinance that rezoned the Fort to allow residential housing. Greens, 271 Mont. at 400, 897 P.2d at 1079. We affirmed that the ordinance was legislative, and subject to the power of referendum, because rezoning and zoning are equally legislative in character. Greens, 271 Mont. at 405-06, 897 P.2d at 1082. See also Plains Grains L.P. v. Bd. of Co. Commrs. of Cascade Co., 2010 MT 155, ¶ 21, 357 Mont. 61, 238 P.3d 332 (“zoning designations are legislative acts”); North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557 (“Amending a growth policy or a zoning designation constitutes a legislative act.”).
¶42 However, Greens and other cases holding zoning decisions to be legislative are not determinative here. Resolution 10-46 and the 2010 IA are not zoning ordinances; they do not actually zone or rezone any property, or make any such land-use decisions. It is important to recognize, as explained above, that any planning authority the City could hope to exercise in the donut was subject to the County’s primary statutory authority to act. Sections 76-2-310(1), -311(1), MCA. Although we are not deciding in this case whether zoning authority was the proper subject of an interlocal agreement, nonetheless the action here was simply an amendment to an interlocal agreement that had provided, at most, consensual authority from the County for the City to act. Not only did the IA amendments not actually zone, but they also did not alter the contractual designation of which local government had current authority to zone in the donut. Land-use authority in the donut under the 2010 IA remained with the City, while an unspecified power of oversight in the County was added. What the amendments did was to provide a new mechanism that could potentially lead to a change in the City’s permissive authority in the future, including ultimate termination of the interlocal agreement between the City and County. Generally, a municipality has the same general power of contract, including the power to settle a dispute over the contract, as do private individuals. Cincinnati ex rel. Ritter v. Cincinnati Reds, 782 N.E.2d 1225, 1236-37 (Ohio App. 1st Dist. 2002) (citing 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions § 758 (2000)); Oakman v. City of Eveleth, 203 N.W. 514, 517 (Minn. 1925) (action of municipality in settling a lawsuit is an exercise of already existing law, not new law).
¶43 The parties’ arguments overlap into the second guideline — whether an action is one declaring a public purpose or only a small segment of a policy question. The City and Intervenors contend that the 2010 IA effectively brought about a broad alteration in land-use authority in the donut broadly because the termination provision rendered the City’s authority illusory — subject only to the County’s whims. However, this argument requires speculation beyond the record. As contemplated by the 2010 IA, in order for authority to transfer from the City, the County had to give notice of its intent to terminate the agreement and then participate in ADR to resolve issues between the parties while continuing under the IA. Only after a one-year period and the failure of the ADR process was the IA to be terminated. Even without the IA in place, the City had the power under § 76-2-311, MCA, to zone in the donut up until the County determined to adopt its own regulations. Because such action, under the IA, could not take place during the one-year dispute resolution period, the City’s authority would continue until the County completed the process of planning and enacting its own regulations. Put another way, there would be a change in zoning policies in the donut only i/'the County gave notice to terminate, if the ADR process failed, if the County initiated planning and adopted new regulations for the donut, and, ultimately, if those regulations were inconsistent with the regulations the City had enacted. Setting aside the fact that the purpose of the 2010 IA was to settle litigation, on this record it is difficult to conclude that the 2010 IA itself effectuated a new zoning policy. Rather, an agreed-upon process between two local governments was established that could lead to a future change in policy after the IA had run its course.
¶44 Whitehall is instructive. There, the town was required by the Public Service Commission to explore options for reducing its water consumption. The town had a flat-rate billing system for water and did not monitor individual usage. The town passed resolutions approving submission of an application to a grant program; authorizing the town to borrow funds from a U.S. Department of Agriculture program; and authorizing the mayor to enter into a contract for additional grant funding to fund a water system improvement project. Whitehall, ¶ 6. Subsequently, the town passed an ordinance requiring a water meter to be installed for each water user, and providing that water use would be billed based on actual use rather than by flat rate. Whitehall, ¶ 7. Citizens attempted to place a referendum on the ballot to repeal the ordinance requiring water meters and use billing, and the town council filed suit challenging the proposed referendum. Whitehall, ¶¶ 8-9. We found the first guideline to be inconclusive because, while previous enactments set out the overall purpose of pursuing a water improvement project, the requirement for installing a water meter was added for the first time in the challenged ordinance. Whitehall, ¶¶ 30-31. Nonetheless, we determined the challenged ordinance was administrative because it only dealt with a portion of the overall policy question as to how to improve the town’s water system to provide water to consumers. Whitehall, ¶¶ 32-33. See also Vagneur v. City of Aspen, 295 P.3d 493, ¶ 47 (Colo. 2013) (“executive acts typically are not based on broad policy grounds, but rather, on individualized, case-specific considerations” (quotation omitted)). Likewise, here, the few 2010 amendments dealt with only a portion of the 2005 IA, and with a portion of the overall question of zoning in the donut, an issue with many other complexities.
¶45 The third guideline considers specialized knowledge necessary for the municipal action. “[Ljocal enactments have been held nonreferable where they involve questions upon which the governing body of the local government has far better background, information, and access to the facts than the general electorate.” Sandra M. Stevenson, Antieau on Local Government Law vol. 6, § 89.06, at 89-18 (2d ed., Matthew Bender & Co. 2009). Other jurisdictions have recognized that the decision to settle a lawsuit requires investigation and analysis, and appropriately lies within the discretion and business judgment of the local government. See Oakman, 203 N.W. at 516; Okerson v. Com. Council of City of Hot Springs, 767 N.W.2d 531, 534-35 (S.D. 2009); Vagneur, ¶ 47 (“administrative decisions often concern matters involving specific data, facts and information necessary to arrive at a fair and accurate judgment upon the subject. Thus, decisions that require careful study and specialized expertise, as well as discretionary judgment, generally are administrative in nature.” (quotation omitted)).
¶46 The potential costs to the City of continuing the 2008 lawsuit, the assessment of the outcome of that litigation, including the potential that the County’s primary statutory authority to zone in the donut would ultimately prevail, the cost/benefit analysis of seeking a cooperative relationship with the County, and the posture the City would maintain under the 2010 IA in order to pursue its future goals were factors that made the decision to enter the agreement a technical one requiring intimate knowledge of the City’s affairs, financing, and long-term goals. The decision required specialized knowledge in many areas and required the technical expertise and discretionary judgment of City officials and their advisors.
¶47 The last guideline primarily provides direction about how the guidelines should be weighed. “[C]ourts must determine when [a local government action’s] administrative characteristics predominate enough to exclude it from the initiative and referendum process.” McAlister, 212 P.3d at 194. While we carefully consider the legislative aspects of all local government decisions in a dispute such as this in order to preserve the maximum power of the people, Whitehall, ¶ 18, the power of referendum does not extend to all acts of local governments that bear legislative implications. As noted above, if the action of the local government is principally administrative, it will be considered administrative for this purpose, despite having legislative characteristics.
¶48 The Dissent would abandon application of the Whitehall factors as “vague, confusing, and awkward to apply,” Dissent,¶ 52, thereby overruling our precedent and charting a new course — a proposition that none of the parties have advocated. As support for the theory that we no longer need to engage in troublesome balancing, the Dissent offers the characteristics of numerous enactments of the Legislature, Dissent, ¶¶ 53-44, but fails to recognize that all actions of a state legislature are inherently legislative by their very nature. Except for certain appropriation measures, all actions of the Legislature are subject to challenge by citizen initiative. Mont. Const, art. Ill, § 5(1) (“The people may approve or reject by referendum any act of the legislature except an appropriation of money.” (emphasis added)). In contrast, local governing bodies act with multiple powers, not merely legislative, and the multi-faceted nature of their actions thus requires an analysis to determine if the purpose of a challenged action is fully or primarily legislative in nature. Otherwise — and this would inevitably be the net result of the Dissent’s theory — without an analytical balancing, virtually all actions with policy implications would be subject to challenge. For example, in Whitehall, the ordinance requiring water meters, being inherently an act of legislation, albeit a small part of a larger issue, would necessarily be subject to challenge, and we therefore should have upheld the citizen’s initiative there that sought to overturn the City’s ordinance. However, we disagree that “[t]here can be no argument that adoption of an interlocal agreement is a legislative act,” Dissent ¶ 59 (see § 7-11-104, MCA (authorizing interlocal agreements for “any administrative service, activity, or undertaking or to participate in the provision or maintenance of any public infrastructure facility, project, or service”)), or that all “significant policy changes” are legislative actions subject to challenge by initiative, Dissent, ¶ 60.
¶49 Applying the Whitehall factors here, the 2010 IA was an amendment to the previous interlocal agreement between the City and the County. By its terms, it provided a limited duration. The agreement was driven by a desire of neighboring and concurrent local governments to settle contentious issues and pursue a course of cooperation. Fundamentally concerning the settlement of litigation, the decision to enter the 2010 IA and resolve the 2008 lawsuit, with limited assurances about the ultimate duration and outcome of the agreement, was a decision that required specialized knowledge and experience of the City’s fiscal and other affairs. These factors weigh in favor of being considered an administrative action. We acknowledge that the 2010 IA and Resolution 10-46 also held legislative implications, including the addition of unspecified County oversight over the City’s authority and the possibility that the City’s authority, though contingent in nature, could be impacted in the future. However, no zoning was enacted or affected by the action, and the City’s zoning authority was initially retained. Balanced together, we conclude that the City’s action had significant administrative characteristics that made it principally administrative in nature, and that the legislative function did not predominate.
CONCLUSION
¶50 We affirm the District Court’s determination that Resolution 10-46 was not subject to the power of referendum. As we have determined that the Referendum did not validly rescind the City’s authoriiy to enter into the 2010 IA, we do not address whether the 2005 IA has been reinstated.
JUSTICES McKINNON, BAKER and DISTRICT JUDGE HAYNES concur.
The record reflects that the joint Planning Board still exists, although its function remains unclear. The Planning Board’s status is not raised as an issue herein.
The parties disagree about whether the changes were merely amendments to the existing 2005 IA or constituted a new and distinct agreement. Because we do not find this issue to be determinative, and only select provisions of the agreement contained any changes, we refer herein to the changes as amendments. However, for ease of understanding, we refer to the amended agreement, entered into in 2010, as the 2010 IA
The 2010 IA. did not provide a mechanism for County oversight of City zoning in the donut, or specify the County’s powers in the event of an objectionable action by the City, except for the process of terminating the agreement entirely.
The 2005 IA did not contain a duration term, which was an issue in the 2008 litigation. While inclusion of a duration term represented a change from the 2005 IA, the ultimate legality of the 2005 IA was an unknown that was settled by adopting the new agreement.
|
[
29,
61,
-19,
-47,
-58,
-1,
28,
22,
-35,
54,
-46,
32,
21,
17,
-27,
-46,
-33,
3,
8,
19,
-55,
-3,
-28,
19,
-32,
-44,
-5,
-4,
-17,
-34,
19,
-18,
-15,
14,
-59,
29,
-8,
81,
-1,
1,
37,
23,
-35,
-71,
-16,
59,
-23,
-27,
28,
-17,
-4,
19,
-5,
9,
-14,
-13,
-18,
-20,
-32,
10,
-76,
28,
17,
35,
69,
-25,
55,
-3,
51,
-33,
-30,
-101,
-28,
-54,
54,
14,
33,
-30,
-20,
34,
5,
73,
11,
-16,
-38,
0,
-24,
-52,
33,
-19,
-15,
0,
21,
-12,
25,
16,
47,
-48,
-9,
-50,
17,
-11,
13,
15,
6,
4,
-57,
8,
88,
-13,
-16,
-22,
-20,
-52,
3,
43,
57,
54,
41,
-7,
-15,
-12,
-33,
62,
-27,
12,
0,
17,
0,
-58,
-5,
23,
64,
-12,
108,
49,
-19,
-22,
54,
54,
66,
-10,
35,
-18,
-2,
1,
0,
-9,
-38,
-10,
-1,
24,
-21,
5,
-46,
-14,
-11,
12,
22,
23,
49,
7,
-81,
-8,
-66,
-13,
-6,
46,
-52,
14,
60,
-24,
-3,
-29,
30,
13,
-52,
-17,
-47,
-18,
-5,
60,
-32,
14,
9,
12,
-9,
-17,
-28,
23,
59,
-37,
-13,
-18,
33,
15,
30,
75,
-26,
63,
35,
43,
50,
-15,
-35,
1,
-16,
12,
20,
47,
14,
-86,
-48,
32,
52,
27,
-24,
-19,
20,
3,
23,
-5,
-17,
16,
-66,
-9,
-20,
-20,
33,
-3,
-35,
-1,
-11,
-10,
27,
-1,
-39,
30,
-11,
13,
22,
-9,
-35,
6,
12,
-21,
-2,
-33,
-52,
8,
-34,
-64,
54,
32,
-2,
-27,
-24,
13,
-23,
-23,
82,
-5,
6,
9,
-42,
-14,
-14,
-45,
-9,
28,
-64,
55,
-6,
-7,
-12,
13,
-6,
-27,
32,
39,
-28,
-42,
25,
6,
-7,
43,
-5,
23,
22,
-20,
-17,
36,
-23,
32,
18,
-23,
-48,
-26,
40,
-28,
-6,
36,
10,
73,
10,
-60,
-27,
22,
15,
-5,
15,
6,
-87,
22,
-8,
-30,
39,
-1,
1,
-29,
-15,
25,
31,
-15,
-61,
7,
18,
35,
-29,
-32,
-22,
-3,
-10,
25,
64,
-8,
-4,
-22,
-35,
-9,
-2,
-60,
44,
19,
1,
10,
-26,
-1,
45,
-51,
-6,
4,
-35,
-20,
-59,
4,
-23,
4,
-48,
-55,
-9,
-11,
-18,
-30,
-73,
9,
65,
28,
-10,
28,
-74,
26,
3,
19,
72,
-32,
16,
31,
-17,
22,
2,
-22,
16,
-33,
86,
-2,
10,
-63,
-48,
-29,
-46,
-52,
-63,
15,
1,
15,
-20,
-33,
9,
-20,
-18,
30,
13,
-36,
-42,
46,
3,
-51,
0,
45,
7,
-12,
26,
-90,
-21,
18,
-22,
-19,
36,
25,
-25,
51,
-28,
-57,
-17,
-5,
15,
39,
15,
17,
-41,
14,
-20,
-34,
39,
-42,
-3,
-29,
-25,
14,
-28,
-3,
42,
-120,
-37,
-50,
-16,
75,
-41,
39,
7,
73,
-61,
-16,
-57,
29,
23,
-41,
32,
-66,
-50,
43,
-5,
28,
11,
-11,
-49,
-6,
9,
-14,
-40,
57,
-22,
-17,
12,
10,
-29,
23,
0,
-15,
2,
-23,
32,
35,
-22,
-10,
52,
32,
-23,
30,
0,
-3,
56,
-33,
-19,
13,
79,
34,
35,
-1,
9,
48,
-30,
-45,
-57,
8,
-13,
65,
20,
32,
38,
-51,
51,
39,
-12,
-14,
-39,
-1,
-11,
40,
-8,
-2,
-18,
-61,
-16,
0,
1,
10,
-3,
-22,
-54,
37,
-13,
0,
1,
11,
13,
16,
43,
-4,
45,
-12,
-3,
-42,
1,
17,
15,
-37,
9,
-18,
8,
-9,
-48,
-29,
13,
8,
-29,
42,
2,
33,
26,
19,
4,
16,
8,
40,
22,
-56,
14,
-4,
-24,
-40,
1,
-42,
36,
-51,
9,
-41,
32,
11,
12,
4,
-50,
-25,
-8,
-20,
53,
-35,
52,
-12,
34,
32,
-49,
13,
-10,
41,
51,
2,
6,
-14,
14,
-6,
-4,
-42,
-20,
-41,
-4,
-5,
-14,
18,
-5,
20,
18,
54,
88,
-5,
33,
-23,
-4,
-5,
-33,
3,
24,
-52,
-68,
-24,
-10,
-8,
14,
13,
23,
-38,
-18,
-39,
46,
2,
-30,
54,
27,
-34,
-2,
-9,
1,
5,
17,
23,
24,
14,
-34,
9,
-20,
48,
9,
-27,
38,
16,
-8,
2,
21,
-8,
47,
51,
58,
-40,
-45,
-8,
13,
-18,
18,
18,
47,
-11,
37,
27,
-4,
-10,
7,
22,
-13,
70,
0,
-31,
-45,
-37,
7,
-48,
13,
24,
17,
91,
17,
-56,
17,
-14,
-6,
-8,
6,
10,
20,
20,
-3,
41,
23,
-50,
-80,
39,
34,
6,
0,
-51,
0,
-50,
0,
3,
-51,
8,
16,
45,
13,
17,
8,
-8,
-79,
-30,
19,
5,
-22,
-15,
-9,
34,
-35,
38,
12,
1,
3,
35,
30,
43,
67,
-41,
11,
-3,
49,
50,
-9,
44,
39,
4,
-19,
-31,
-41,
-13,
-36,
-10,
-55,
-49,
-13,
90,
-17,
73,
24,
-53,
-57,
83,
-12,
-53,
55,
-3,
1,
3,
50,
-10,
-24,
-32,
6,
-20,
-4,
28,
-33,
-27,
-44,
17,
51,
-22,
-12,
-32,
7,
0,
12,
66,
-47,
9,
63,
9,
-13,
46,
6,
-20,
12,
15,
-39,
2,
-1,
15,
29,
27,
-51,
15,
7,
-7,
-61,
-23,
7,
2,
39,
-7,
-7,
41,
-29,
-40,
28,
-35,
6,
14,
48,
30,
55,
-18,
46,
-11,
8,
17,
12,
-12,
-28,
-47,
-14,
40,
29,
-5,
15,
8,
4,
-52,
-12,
15,
4,
21,
18,
-14,
-29,
21,
51,
-12,
48,
37,
18,
-4,
-11,
67,
5,
32,
-31,
21,
-20,
-37,
6,
-27,
17,
44,
-12,
-31,
43,
30,
21,
-8,
-75,
14,
-49,
-91,
10,
50,
-29,
7,
1,
-12,
23,
78,
34,
-18,
45,
15,
15,
46,
-27,
21,
-26,
-15,
-15,
-40,
-31,
13,
32,
-13,
12,
-19,
-28,
65,
-23,
20,
10,
8,
29,
-30,
-18,
-33,
-64,
-48,
-36,
71,
44,
28,
-58,
-13,
-44,
22,
-60,
52,
26,
41,
-28,
19,
-3,
32,
-30,
11,
-1,
32,
-50,
-13,
-70,
-31,
46,
-33,
-1,
1,
-12,
-27,
-42,
-12,
3,
21,
-21,
22,
22,
-31,
0,
31,
-2,
0,
-19,
34,
16,
33,
7,
-47,
16,
17,
10,
9,
-48,
-8,
64,
20,
-4,
14,
-29,
24,
57,
73,
-20,
23,
50,
-5,
-26,
27,
14,
-47,
-17,
7,
22,
-58,
16,
-27,
-3,
-40,
0,
-78,
-67,
-52,
61,
81,
17,
-55,
-22,
-16,
33,
-48,
4,
44,
-17,
23,
10,
-32,
31,
2,
-21,
1,
-6,
-20,
-14,
-28,
-23,
-9
] |
JUSTICE McKINNON
delivered the Opinion of the Court.
¶1 Deborah Dulaney appeals from an order of the Second Judicial District Court, Silver Bow County, granting summary judgment in favor of defendants State Farm Casualty Insurance Co. and insurance agent Shawn Ori. We affirm. Dulaney’s sole argument on appeal is that the District Court erred in granting summary judgment in favor of State Farm and Ori.
BACKGROUND
¶2 Dulaney operated a floral shop in Whitehall from 2001 to 2006. During these years, her business was insured by a State Farm insurance policy, which she purchased from Ori. In November of2007, after reopening her business in a new location, Dulaney met with Ori to discuss purchasing a policy for her new business. During this meeting, Dulaney told Ori that she needed insurance coverage for a new “huge” building she was renting, that her landlord required $1,000,000 in liability insurance, and that she needed to be adequately insured.
¶3 Dulaney claims that she told Ori that she had “absolutely no idea” of the value of the property she wanted insured, and that she wanted Ori to come out and see the business for himself. Dulaney maintains that she never asked for a specific amount of coverage, or told Ori to use the same coverage limit that she had for her former business. Ori, on the other hand, contends that during their meeting Dulaney “informed him that her former business property limit was sufficient for the business.”
¶4 Dulaney’s 2007 tax return valued her business property at$9,825. Dulaney maintains, however, that the value of her business greatly exceeded this amount. Ori had no knowledge of any valuation or inventory of Dulaney’s business at the time Dulaney purchased the policy. When Dulaney and Ori met in November of2007, an insurance application was prepared that indicated on its face a $20,000 coverage limit for business personal property and a $1,000,000 coverage limit for business liability. The record does not establish whether Dulaney signed the application. Dulaney maintains she has no recall of whether she assisted in or was present while the application was being filled out. It is undisputed that Ori never inspected the premises of Dulaney’s business, or agreed to do so. The application was finalized, and Dulaney’s coverage began.
¶5 After obtaining the policy, Dulaney made significant purchases for her business, including a $10,000 walk-in cooler, a $2,000 espresso machine, and a $7,000 business software system. She did not contact Ori to inform him of these purchases, or any other added inventory or equipment. In2008, Dulaney received a renewal notice from Ori, which again disclosed the limits of coverage under the policy. Dulaney never requested any additional business property coverage after her November 2007 meeting with Ori.
¶6 In 2009, Dulaney’s floral shop was destroyed by a fire that started in a neighboring business. Dulaney sued the neighboring business, and the case was settled before it went to trial. State Farm paid Dulaney the maximum amount available under her policy, which was approximately $21,105. Dulaney maintains that Ori’s professional negligence caused her over $190,000 in damages to her business. She filed a complaint against Ori with the State of Montana Insurance Commissioner, which was dismissed. Next, Dulaney filed suit against State Farm and Ori, arguing that Ori, acting as State Farm’s agent, had a professional duty to ascertain or advise her of the adequate amount of coverage for her business, and his failure to do so constituted professional negligence. State Farm and Ori disclosed multiple expert witnesses that were to testify as to the standard of care required of an insurance agent. At no time did Dulaney disclose an expert witness, although she did disclose multiple lay witnesses. State Farm and Ori then filed a motion in limine to preclude Dulaney from calling an expert to testify on her behalf, arguing that she had missed the disclosure deadline imposed by the District Court’s scheduling order. Dulaney responded that she did not fail to disclose an expert witness, but that she “intentionally did not disclose an expert witness as she does not intend to use one.” Dulaney did include her current insurance agent Leo McCarthy on her witness list, but she did not identify that he would be testifying as an expert pursuant to the requirements of M. R. Civ. P. 26(b)(4).
¶7 On April 1,2013, State Farm and Ori jointly moved for summary judgment, citing Dulaney’s failure to name an expert witness to establish the standard of care applicable to an insurance agent. On July 1,2013, the District Court granted summary judgment in favor of State Farm and Ori. The District Court held that expert testimony was required to establish the standard of care to which Ori was required to conform. The court explained that the “ordinary lay juror has little or no experience regarding the factors a professional insurance agent must consider when obtaining general business insurance at the request of a client, or concerning the adequacy of the amount of coverage at the time of its procurement.” The District Court then distinguished the present case from prior precedent, including Fillinger v. Northwestern Insurance Agency, Inc., of Great Falls, 283 Mont. 71, 938 P.2d 1347 (1997). The District Court determined that Dulaney could not meet her burden of establishing a prima facie case of professional negligence against Ori. Dulaney now appeals from that order.
STANDARD OF REVIEW
¶8 We review a district court’s ruling on a motion for summary judgment de novo, applying the criteria set forth in M. R. Civ. P. 56. Yorlum Props. v. Lincoln Co., 2013 MT 298, ¶ 12, 372 Mont. 159, 311 P.3d 748. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).
DISCUSSION
¶9 Whether the District Court erred in granting summary judgment to State Farm and Ori.
¶ 10 Dulaney asserts a claim of professional negligence against Ori and State Farm. Four elements are required to prove a claim for negligence: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Dubiel v. Mont. Dept. of Transp., 2012 MT 35, ¶ 12, 364 Mont. 175, 272 P.3d 66; W. Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 22, 359 Mont. 34, 249 P.3d 35. “It is well established that if a plaintiff fails to offer proof of any one of the elements of a negligence claim, the negligence action fails and summary judgment in favor of the defendant is proper.” Dubiel, ¶ 12 (citing Peterson v. Eichhorn, 2008 MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615; Hinkle ex rel. Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1239). As a general rule, negligence claims are not susceptible to summary judgment determinations because they are fact driven. Willden v. Neumann, 2008 MT 236, ¶ 14, 344 Mont. 407, 189 P.3d 610. However, an exception to this rule exists where a plaintiff fails to offer proof of any one of the elements of a negligence claim. Dubiel, ¶ 12 (citing Peterson, ¶ 24; Hinkle, ¶ 23).
¶11 In this case, Dulaney claims that Ori had a duty to ascertain the value of Dulaney’s business property and inventory in order to make sure that her insurance policy would adequately cover her business assets. She asserts that Ori breached this duty, and that had Ori inspected her business, he would have advised her to purchase an insurance policy with a higher coverage limit.
¶12 “To determine if a defendant breached a duty of care, a plaintiff must establish the standard of care by which to measure the defendant’s actions; in other words, she must establish the degree of prudence, attention, and caution the defendant must exercise in fulfilling that duty of care.” Dubiel, ¶ 14 (citing Dalton v. Kalispell Regl. Hosp., 256 Mont. 243, 247, 846 P.2d 960, 962 (1993)). M. R. Evid. 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” We have previously held that:
It is the rule in Montana that expert testimony is required as to the standard of care, and as to the professional’s violation of that standard of care, before a trier of fact may find such professional negligent... . The rationale for requiring expert testimony to establish a standard of care for professionals acting in their professional capacity is that such professionals are required to possess a minimum standard of special knowledge and ability, and as a result juries which are composed of laypersons are normally incompetent to pass judgment on such questions without the assistance of expert testimony.
Newville v. Dept. of Family Servs., 267 Mont. 237, 257, 883 P.2d 793, 805 (1994) (citing Carlson v. Morton, 229 Mont. 234, 239-40, 745 P.2d 1133, 1137 (1987)).
¶13 Dulaney argues that the standard of care of an insurance agent procuring coverage is a matter of common knowledge, and does not involve overly technical, scientific, or specialized knowledge. She maintains that her case is “the mirror image” of Fillinger, in which we held “in the context of an insurance agent’s alleged failure to procure requested coverage, expert testimony is not required as the issue is not one which involves technical insurance issues outside the common experience and knowledge of lay jurors.” Fillinger, 283 Mont. at 84, 938 P.2d at 1356; see also Gay v. Lavina State Bank, 61 Mont. 449, 458, 202 P. 753, 755 (1921). Ori and State Farm counter that Fillinger is factually distinguishable, because Dulaney does not argue that Ori failed to procure requested coverage, but rather, that Ori should have done more to make sure Dulaney’s coverage was adequate.
¶14 We conclude that Dulaney’s reliance on Fillinger is misplaced, because Dulaney did not make a request for specific coverage. In Fillinger, the issue was whether or not the insurance agent provided the insureds with the coverage they requested. It was undisputed that the insureds had requested a specific policy, and that they did not receive that policy. We held “the determination of whether an insurance agent reasonably fulfilled his or her duty and procured the coverage requested is easily within the common experience and knowledge of lay jurors” and thus, the testimony of an expert witness was not required. Fillinger, 283 Mont. at 83-84, 938 P.2d at 1355. Here, unlike in Fillinger, Dulaney’s damages allegedly resulted from Ori’s failure to procure a policy that adequately covered her business assets — not from Ori’s failure to procure a specific type of policy that Dulaney indisputably requested. Thus, the question of duty here goes beyond that articulated in Fillinger, and requires the testimony of an expert witness to establish the relevant factors that an insurance agent should consider when procuring insurance coverage in these circumstances.
¶15 Dulaney’s case is instead controlled by our holding in Dubiel. In Dubiel, a wife brought a negligence and wrongful death action against the Department of Transportation (the Department) after her husband died when a tree fell on his vehicle while he was stopped on the highway awaiting road clearance during a wind storm. Dubiel, ¶ 1. While the wife retained an economic expert to establish her husband’s lost earnings, she did not retain an expert to establish the Department’s standard of care regarding highway safety under the circumstances leading to her husband’s death. Dubiel, ¶ 4. The district court granted the Department’s motion for summary judgment because of the wife’s failure to retain an expert to testify regarding the standard of care. We affirmed, stating that there were “numerous interrelated factors that must be considered by [the Department] in making a decision to close a road, many of which are not readily apparent to a layman.” Dubiel, ¶ 18. Our holding in Dubiel is echoed by a number of cases in which we have determined that expert testimony is required to determine the standard of care for a wide variety of professions whose duties are not obvious to a layperson. See Dayberry v. City of E. Helena, 2003 MT 321, ¶ 21, 318 Mont. 301, 80 P.3d 1218 (in a suit against a swimming pool operator, whether the depth of a swimming pool was unreasonably dangerous for the diving board length required expert testimony); Carlson, 229 Mont. at 241, 745 P.2d at 1138 (whether a lawyer breached the applicable standard of care in a legal malpractice suit required expert testimony); Mont. Deaconess Hosp. v. Gratton, 169 Mont. 185, 189-90, 545 P.2d 670, 672-73 (1976) (whether doctors breached the applicable standard of care in a medical malpractice suit required expert testimony); Hill v. Squibb & Sons, 181 Mont. 199, 207, 592 P.2d 1383, 1388 (1979) (whether a warning on package inserts from pharmaceutical manufacturers and distributors was adequate required expert testimony); Doble v. Lincoln Co. Title Co., 215 Mont. 1, 5, 692 P.2d 1267, 1270 (1985) (whether a title insurance company breached a standard of care required expert testimony); May v. Era Landmark Real Estate, 2000 MT 299, ¶ 70, 302 Mont. 326, 15 P.3d 1179 (plaintiffs claim for professional negligence required the submission of expert testimony to prove the standard of care of a real estate broker).
¶16 As in Dubiel, there are in this case multiple factors in play that “sure sufficiently beyond the common experiences of jurors.” Dubiel, ¶ 15. Dulaney alleged in her complaint that her agent had “the legal duty” to ascertain the amount of insurance coverage she needed. She argued that it was incumbent upon Qri to view the contents of her store and determine the value of her personal property, inventory, and supplies. She argues on appeal that he should have looked at her business property, given her advice on coverage options, “maybe even looking at her depreciation schedules, and sitting down with her and assisting her in creating a plan to make sure her business needs are covered.” She thus ascribes to her agent expansive legal duties and obligations for which her agent denies responsibility. It also bears noting that in denying her complaint, the Insurance Commissioner concluded that “it is the responsibility of the insured to determine the amount of coverage they [sic] need.”
¶17 The only way for a jury to resolve whether an insurance agent placing a business policy had the legal duty to perform the foregoing tasks would be to receive expert testimony on the duties of an insurance agent under these circumstances. Among the questions that would be squarely before the jury are whether it is the obligation of the insured or the agent to place a value on an owner’s property and inventory, and whether it is incumbent on the insured or the agent to monitor the insured’s ongoing property acquisitions and periodically suggest an upgrade in coverage amounts. Because the answers to these questions would not be readily apparent to a layperson, expert testimony on the nature and extent of an agent’s duties was required.
¶18 As Fillinger illustrates, not every claim against an insurance agent will require the testimony of an expert. For the foregoing reasons, however, we conclude that it was incumbent on Dulaney to provide expert testimony to support her allegation that her agent carried certain legal duties which he breached to her detriment.
¶19 Dulaney also argues that summary judgment was improper because even if an expert witness was necessary, the fact that insurance agent Leo McCarthy was on her witness list, and that Ori himself was on the defense’s witness list, satisfied that requirement. She cites to Fillinger to support this conclusion, claiming that the defendant insurance agent’s testimony in that case satisfied any requirement that the plaintiffs provide their own expert. However, neither Ori nor McCarthy were listed as expert witnesses for Dulaney. Instead, Dulaney “intentionally did not disclose an expert witness, as she [did] not intend to use one.” Thus, the fact that Dulaney disclosed McCarthy as a lay witness and that State Farm and Ori disclosed Ori as an expert witness was insufficient to satisfy Dulaney’s obligation to designate an expert pursuant to the requirements of M. R. Civ. P. 26(b)(4) and Dubiel.
¶20 Dulaney additionally argues that material facts are in dispute — namely, whether Dulaney requested a specific policy, and whether Ori provided that policy — and thus summary judgment was improper. However, Dulaney did not raise this issue before the District Court, and she repeatedly testified that she did not request a specific policy from Ori. Regardless of whether material disputed facts exist, Dulaney’s failure to retain an expert witness as to the standard of care prevents her from establishing a prima facie case of professional negligence. “A complete failure of proof concerning an essential element of a claim makes judgment appropriate as a matter of law.” Monroe v. Cogswell Agency, 2010 MT 134, ¶ 34, 356 Mont. 417, 234 P.3d 79; see also Dubiel, ¶ 12. As such, no further review of the facts is necessary.
CONCLUSION
¶21 We conclude that Dulaney’s failure to obtain an expert witness necessarily results in an insufficiency of proof regarding duty, and prevents Dulaney from establishing a prima facie claim of negligence. We affirm.
JUSTICES COTTER, WHEAT, BAKER and RICE concur.
|
[
12,
2,
-15,
-28,
-4,
-41,
-17,
12,
10,
9,
12,
8,
6,
45,
3,
19,
-16,
11,
32,
30,
15,
-6,
-33,
24,
-55,
-14,
-2,
-47,
24,
35,
12,
-20,
-48,
-21,
-20,
22,
-8,
11,
-65,
-6,
16,
-8,
6,
-50,
-1,
43,
34,
-20,
27,
42,
27,
-25,
-30,
-15,
-26,
-23,
18,
53,
-23,
4,
-19,
-7,
60,
15,
45,
-22,
16,
-1,
44,
46,
18,
-5,
-11,
-31,
-12,
-10,
-86,
-17,
-21,
3,
0,
-13,
39,
-25,
-29,
23,
-8,
-42,
15,
17,
-33,
-10,
27,
-27,
4,
50,
33,
-26,
-27,
40,
-24,
-3,
75,
4,
-79,
39,
38,
-19,
42,
23,
4,
-11,
19,
11,
16,
0,
13,
17,
-6,
26,
-16,
46,
26,
-18,
31,
10,
57,
5,
-31,
-24,
-43,
-10,
7,
14,
10,
-2,
-9,
1,
57,
37,
27,
-38,
18,
-39,
39,
50,
-12,
-54,
-28,
-4,
9,
32,
1,
-22,
28,
-39,
-12,
10,
4,
-53,
-1,
-55,
46,
39,
-50,
7,
-21,
5,
3,
66,
49,
-35,
10,
-4,
22,
-2,
34,
-46,
-1,
18,
-28,
23,
-23,
30,
-13,
18,
32,
-44,
4,
-40,
23,
-57,
-26,
-49,
21,
-16,
29,
41,
32,
-9,
26,
-9,
56,
-6,
82,
-38,
-74,
-51,
-32,
-58,
-32,
-17,
-13,
-53,
21,
39,
4,
-32,
-35,
-44,
-8,
1,
-18,
-10,
-49,
-77,
-32,
-50,
-19,
-47,
-4,
-14,
-12,
54,
-52,
33,
-16,
-64,
14,
8,
-30,
29,
48,
-13,
21,
30,
-15,
35,
-2,
5,
-3,
4,
62,
40,
27,
45,
-15,
-4,
-16,
-10,
20,
42,
-22,
13,
53,
-13,
-2,
-28,
13,
31,
10,
-8,
16,
-45,
30,
-38,
62,
-28,
1,
14,
10,
21,
-5,
2,
4,
30,
26,
44,
9,
-18,
-4,
-35,
-18,
20,
32,
-33,
61,
-21,
-42,
2,
25,
10,
50,
38,
25,
-55,
2,
-23,
-48,
35,
23,
28,
0,
9,
-18,
-31,
-2,
-15,
37,
32,
4,
-33,
13,
29,
32,
-85,
21,
-72,
-2,
-10,
-21,
18,
12,
-14,
33,
-22,
-7,
19,
20,
23,
-14,
4,
19,
1,
-21,
33,
16,
43,
-18,
-9,
-11,
39,
-28,
-22,
-24,
-38,
88,
18,
-24,
-70,
36,
53,
9,
-16,
-21,
38,
1,
41,
-86,
21,
17,
-24,
9,
31,
37,
-54,
-37,
9,
-54,
-2,
61,
-44,
6,
17,
16,
22,
33,
-16,
-32,
-8,
8,
0,
18,
40,
0,
-97,
-55,
-6,
-22,
-37,
14,
0,
-30,
17,
-25,
-26,
-9,
-50,
-34,
-14,
-59,
-16,
-23,
-18,
-8,
42,
16,
-61,
-24,
3,
4,
-19,
4,
-11,
11,
17,
-15,
57,
-19,
-7,
-36,
-5,
-99,
-37,
0,
-7,
18,
-15,
30,
34,
28,
74,
-81,
-17,
-1,
42,
19,
-22,
21,
-26,
35,
-7,
44,
-35,
28,
5,
24,
-10,
-9,
-25,
63,
-11,
-26,
8,
-8,
10,
-20,
3,
54,
-8,
-16,
21,
-20,
-17,
69,
33,
-12,
-51,
8,
11,
13,
8,
7,
14,
-9,
-44,
0,
43,
-55,
-36,
12,
-18,
-46,
-58,
-25,
-38,
37,
24,
14,
-33,
-25,
-10,
15,
53,
-5,
-22,
-31,
-44,
19,
16,
46,
16,
33,
72,
19,
-13,
-3,
78,
48,
-22,
-7,
-14,
-24,
-4,
56,
-32,
-21,
39,
19,
25,
-30,
42,
23,
-29,
33,
52,
32,
-32,
-50,
-28,
7,
47,
-43,
-41,
9,
8,
79,
-33,
57,
19,
18,
-28,
11,
23,
14,
-10,
-35,
-36,
44,
24,
-31,
30,
9,
19,
38,
-30,
31,
-51,
32,
-47,
-75,
-38,
-21,
-35,
-4,
-28,
-52,
-37,
4,
15,
-29,
4,
26,
-49,
-49,
2,
51,
-6,
49,
23,
20,
-27,
4,
42,
-14,
-23,
-30,
-73,
-36,
14,
-27,
-5,
-65,
1,
-26,
14,
23,
-30,
15,
45,
-43,
14,
-54,
-9,
16,
-24,
28,
-7,
39,
-79,
26,
25,
39,
4,
1,
16,
13,
24,
-60,
6,
62,
-74,
17,
-28,
7,
-51,
-21,
34,
-49,
6,
-3,
-3,
15,
36,
26,
20,
27,
3,
-23,
-70,
-61,
32,
20,
-7,
16,
24,
0,
35,
21,
-31,
-15,
-19,
33,
15,
-36,
-34,
32,
-33,
-29,
39,
47,
-12,
32,
53,
47,
38,
3,
21,
-17,
58,
29,
-15,
32,
-1,
-43,
-64,
-36,
-26,
16,
-77,
-24,
-52,
4,
-33,
4,
-35,
-22,
63,
-27,
-25,
39,
39,
-22,
0,
-1,
75,
18,
-57,
4,
42,
-1,
-31,
-30,
-5,
-43,
-8,
9,
17,
-6,
-17,
29,
-37,
12,
21,
-61,
9,
-3,
-17,
64,
70,
-4,
53,
7,
19,
-47,
38,
5,
-16,
20,
10,
14,
78,
42,
5,
-52,
19,
-37,
31,
17,
-18,
-2,
34,
6,
-18,
-18,
-25,
-10,
-6,
11,
-59,
-16,
32,
1,
17,
71,
-14,
41,
-23,
-26,
-20,
6,
49,
-37,
45,
8,
0,
58,
-28,
-6,
-27,
34,
23,
28,
-79,
-8,
24,
-18,
57,
10,
0,
-31,
102,
5,
-35,
-82,
12,
15,
22,
20,
4,
-18,
28,
4,
-6,
44,
50,
-34,
6,
59,
-21,
15,
-19,
23,
-12,
-10,
-32,
-28,
-22,
-48,
-5,
-36,
-36,
-39,
-10,
9,
-13,
-59,
17,
-1,
-4,
-7,
-15,
-62,
34,
-71,
8,
37,
33,
-20,
-27,
45,
19,
-56,
33,
15,
23,
-6,
0,
1,
-11,
-75,
-11,
59,
-14,
22,
-45,
35,
-4,
31,
5,
45,
3,
-43,
65,
-10,
-20,
5,
6,
14,
-32,
-31,
62,
13,
-7,
-25,
-26,
-51,
-42,
11,
-12,
-43,
17,
-53,
61,
-16,
-38,
-22,
22,
-23,
-2,
24,
18,
24,
0,
-6,
15,
-37,
-13,
25,
-69,
-18,
9,
-30,
3,
2,
72,
13,
-19,
-59,
-40,
-1,
-1,
25,
-20,
-35,
35,
-61,
-10,
-37,
29,
11,
-43,
-14,
45,
36,
-6,
2,
-15,
-14,
22,
-8,
9,
25,
97,
9,
-52,
-26,
-8,
-22,
-7,
-26,
20,
14,
-5,
-26,
-30,
8,
-39,
18,
-3,
10,
54,
-9,
50,
-34,
-9,
-22,
30,
19,
0,
-23,
22,
-30,
0,
-32,
-24,
13,
41,
9,
0,
0,
-15,
26,
34,
-55,
-8,
78,
19,
2,
0,
3,
32,
-6,
56,
-19,
7,
-34,
-75,
-40,
-9,
-13,
-20,
16,
2,
33,
2,
-49,
35,
17,
-13,
26,
-8,
14,
5,
-49,
-12,
44,
5,
84,
29,
-22,
17,
46,
-34,
-1,
-7,
29,
1,
-71,
-54,
-4,
16,
12,
-16
] |
PER CURIAM.
Respondents’ motion to dismiss the appeal herein is granted and the appeal is accordingly dismissed.
|
[
-49,
-37,
10,
11,
32,
0,
2,
9,
2,
-19,
-31,
19,
-70,
-24,
-44,
41,
17,
-55,
46,
-46,
-5,
95,
53,
-48,
-29,
-43,
-34,
42,
59,
17,
2,
-21,
-26,
25,
0,
-103,
12,
20,
6,
-6,
-11,
4,
27,
14,
1,
0,
20,
20,
-2,
15,
27,
59,
-71,
-76,
-75,
-23,
-4,
-43,
9,
-45,
-4,
78,
-28,
-29,
3,
0,
16,
-23,
23,
27,
8,
27,
53,
0,
40,
-17,
-23,
11,
-20,
77,
16,
34,
15,
30,
52,
16,
83,
57,
-6,
42,
11,
-18,
26,
-88,
-49,
52,
69,
6,
21,
-5,
-27,
25,
18,
-42,
22,
-58,
17,
45,
3,
-6,
21,
0,
-53,
-2,
-3,
56,
31,
42,
64,
17,
-33,
28,
2,
16,
-20,
30,
-19,
27,
8,
19,
39,
54,
-12,
5,
70,
-3,
29,
12,
-1,
-13,
-26,
-12,
-9,
-3,
-53,
-2,
-70,
17,
30,
-34,
39,
8,
-88,
33,
43,
32,
-32,
-19,
63,
62,
-3,
-30,
-14,
16,
15,
-8,
-26,
-13,
44,
56,
0,
1,
61,
-15,
-36,
-11,
-35,
64,
35,
32,
32,
37,
-6,
4,
-35,
-18,
-38,
61,
24,
-22,
-44,
14,
-4,
3,
10,
18,
69,
17,
-33,
-3,
-88,
-21,
-6,
-30,
-3,
26,
-43,
-77,
52,
-24,
-22,
-4,
-2,
-66,
34,
-1,
38,
3,
23,
67,
45,
-39,
-14,
1,
17,
-5,
-60,
19,
21,
34,
-50,
16,
-54,
-7,
26,
1,
25,
10,
13,
-85,
-58,
0,
73,
-42,
-53,
29,
29,
88,
58,
-17,
35,
22,
56,
7,
-5,
-12,
-19,
35,
3,
-76,
31,
-9,
2,
-29,
-50,
45,
42,
37,
32,
-5,
13,
33,
-2,
18,
64,
-46,
-3,
-46,
40,
59,
-61,
-34,
2,
-29,
-11,
24,
-12,
-39,
28,
-20,
-9,
30,
27,
-1,
7,
30,
-66,
55,
-65,
-19,
8,
13,
-42,
-33,
46,
29,
0,
-4,
25,
-37,
-1,
69,
58,
-19,
-11,
70,
-36,
-52,
15,
-13,
23,
-5,
-69,
8,
-56,
-26,
-39,
-2,
61,
2,
-5,
21,
-12,
8,
-68,
103,
-39,
11,
13,
17,
0,
3,
-54,
8,
-23,
-23,
-6,
-32,
54,
6,
-77,
14,
0,
-73,
88,
-44,
14,
-60,
-22,
27,
-35,
19,
71,
24,
94,
-4,
7,
0,
-67,
-13,
-73,
-14,
19,
-18,
2,
12,
-9,
-13,
11,
-27,
-50,
-52,
53,
13,
-4,
33,
40,
35,
4,
-13,
-24,
-14,
-22,
-42,
-60,
42,
36,
0,
11,
68,
31,
-27,
-35,
32,
-13,
-20,
41,
19,
9,
17,
-58,
42,
19,
43,
64,
-43,
-31,
57,
59,
10,
50,
-6,
-18,
74,
-52,
63,
3,
-60,
10,
-43,
1,
-18,
2,
8,
-27,
74,
74,
-5,
-6,
58,
-17,
-18,
-28,
-9,
-78,
45,
-55,
-26,
-21,
-26,
-29,
-20,
0,
-38,
-16,
-3,
-11,
24,
-14,
55,
7,
-1,
-10,
-38,
-34,
-15,
54,
12,
29,
39,
-15,
-37,
-51,
-12,
-19,
30,
-14,
5,
-54,
-10,
9,
-25,
0,
7,
-80,
0,
22,
18,
3,
-27,
-36,
-40,
1,
22,
-52,
-49,
-14,
-23,
-90,
-22,
32,
-26,
-36,
4,
53,
-65,
-25,
10,
-3,
-61,
16,
-33,
-5,
28,
-7,
34,
21,
15,
7,
20,
-51,
-59,
-22,
-58,
29,
-22,
-33,
-2,
57,
37,
-23,
-14,
14,
-23,
42,
-31,
-19,
-2,
39,
-26,
38,
-2,
15,
35,
23,
64,
-16,
58,
40,
30,
9,
14,
-58,
62,
3,
6,
-60,
-48,
37,
-86,
-8,
-57,
-38,
25,
-31,
7,
28,
-8,
-5,
23,
21,
-38,
62,
9,
-2,
-4,
41,
8,
-43,
-50,
-1,
32,
-53,
27,
-64,
-13,
-1,
3,
27,
-11,
-48,
-54,
84,
-75,
52,
-41,
-19,
5,
2,
50,
-45,
-21,
2,
35,
-22,
55,
-36,
33,
17,
-3,
62,
49,
-58,
4,
-56,
-73,
-42,
57,
20,
23,
30,
28,
-17,
10,
-14,
19,
-45,
-25,
14,
66,
55,
50,
-22,
-69,
-34,
37,
-20,
31,
-17,
-46,
-54,
24,
9,
-12,
36,
-5,
55,
-50,
35,
31,
51,
63,
-9,
-43,
25,
-40,
-3,
-94,
35,
-57,
-71,
-17,
31,
-38,
-47,
12,
-22,
42,
-15,
8,
-22,
35,
9,
-10,
21,
-8,
63,
40,
-67,
-19,
17,
-18,
41,
22,
-15,
-9,
37,
13,
-52,
62,
-4,
39,
-8,
-21,
-57,
-15,
-11,
7,
40,
0,
30,
4,
32,
28,
-46,
-21,
-19,
-4,
-29,
-20,
-45,
2,
-30,
8,
25,
-23,
-12,
-10,
17,
-61,
30,
65,
24,
25,
-14,
0,
25,
-34,
28,
2,
-19,
-8,
58,
39,
-63,
-73,
-27,
-34,
2,
-75,
-38,
-3,
11,
-12,
59,
26,
-15,
67,
-1,
-15,
44,
-83,
-9,
54,
44,
-31,
45,
-25,
18,
20,
39,
-25,
-34,
-9,
45,
38,
-31,
10,
-28,
21,
-72,
-26,
85,
-6,
-89,
21,
-40,
-16,
71,
26,
-29,
-79,
-43,
61,
27,
51,
-3,
-62,
7,
-56,
0,
37,
-6,
40,
62,
-5,
17,
-70,
23,
-30,
-16,
-30,
26,
25,
14,
48,
-35,
-19,
-25,
-23,
15,
-11,
-64,
-23,
-30,
39,
19,
-45,
-14,
-102,
37,
54,
-2,
97,
-9,
-31,
11,
3,
37,
-6,
31,
-52,
9,
68,
-38,
1,
33,
3,
24,
22,
-41,
15,
1,
39,
28,
16,
-44,
-2,
1,
0,
-19,
-12,
51,
85,
-9,
-14,
-13,
-21,
60,
-46,
68,
71,
29,
-31,
-20,
-13,
13,
-8,
46,
-5,
14,
-24,
51,
37,
-13,
-43,
28,
-28,
-3,
21,
13,
-6,
-34,
-36,
30,
3,
17,
-57,
-68,
-30,
24,
-15,
-3,
61,
77,
42,
9,
-18,
31,
56,
-5,
31,
60,
0,
32,
14,
-7,
13,
16,
31,
7,
73,
57,
14,
16,
-31,
12,
1,
52,
-34,
26,
26,
12,
4,
-6,
-13,
55,
-22,
-52,
-78,
35,
-16,
1,
-23,
-63,
-70,
-35,
-25,
-32,
77,
0,
13,
-11,
26,
6,
-70,
-18,
-12,
-7,
-6,
54,
-56,
17,
-32,
-36,
-37,
18,
34,
31,
-41,
-23,
-62,
-44,
10,
-75,
6,
-11,
12,
44,
53,
-3,
40,
27,
-20,
5,
-73,
-8,
-3,
-25,
64,
1,
-16,
48,
-80,
-53,
-15,
-15,
28,
-11,
-38,
52,
28,
-8,
-90,
-25,
-54,
10,
0,
-6,
2,
-27,
41,
21,
-54,
5,
47,
20,
-30,
-18,
9,
4,
23,
41,
-30,
39,
-99,
-29,
-23,
-21,
4,
1,
1,
25,
-42
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Plaintiff, as administratrix of the estate of William Mayger, deceased, brought this action to recover from the defendant the sum of $19,639.50, balance alleged to be due upon an account stated, with interest. Judgment in her favor resulted, from which defendant appeals.
The action is upon an account stated. Defendant alleges that the complaint does not state a cause of action. In this it is wrong. (See McFarland v. Cutter, 1 Mont. 383; Voight v. Brooks, 19 Mont. 374, 48 Pac. 549; Martin v. Heinze, 31 Mont. 68, 77 Pac. 427; and Noyes, Admx., v. Young, 32 Mont. 226, 79 Pac. 1063.) The answer is a general denial.
The agreement resulting in the account stated having the force of a contract the plaintiff must recover upon it, or fail in the action. Upon its answer, the defendant, in order to prevail must show that there was not any account stated, or that it has paid the amount alleged to be due. Further the defendant may not go in the absence of a pleading alleging fraud, error or mistake in the ascertainment of the balance, or in reaching the agreement resulting in the account stated. (Martin v. Heinze, supra, and cases cited.)
The administrative capacity of plaintiff was admitted, also the corporate capacity of defendant, and that the defendant, during all the times in controversy, was the owner of large mining properties and mills for the reduction of ores in Lewis and Clark county.
The evidence showed, or tended to show, the following facts without substantial contradiction: The plaintiff, Frances Mayger, had been secretary and director of the defendant company ever since September 25, 1913. Her husband, William Mayger, had been connected with the company for many years, was elected president on September 25, 1913, and held that office continuously thereafter until the date of his death, January 19, 1918. For a number of years Charles F. Mayger had been vice-president of the company and was such when William Mayger died. On April 13, 1918, he was vice-president and acting manager of the company.
At a meeting of the stockholders held July 8, 1887, at which William Mayger was president, by-laws were .adopted. Article II, thereof, so far as material here, reads as follows:
“Section 1. The president shall be the chief executive officer of the company in the management of its affairs, but subject to the control and direction of the board of trustees. He shall, when present, preside at all meetings of the board of trustees, and of the executive committee, and shall report his official acts to the board at regular meetings for approval, and shall perform such other duties as may be required of him by the laws of Montana and by the by-laws of this company and by the board of trustees. He shall sign all documents, deeds, contracts, certificates of stock, drafts, acceptances, notes and cheeks, and approve all vouchers for the payment of money as may be necessary in the principal office of the company. He shall be ex-officio- a member of all committees, but shall not vote on matters involving his own acts.
“Sec. 2. He shall receive such salary as the board of trustees may fix and allow. * * * ”
By Article III it was provided that in case of the president’s inability or refusal to act, “the vice-president shall possess all the powers and perform all the duties of the president, and may receive such compensation for his services as the board of trustees may fix and allow.”
During the period inquired about in this controversy, covering a number of years, the president transacted the business of the company without respect to the board of directors, “to the fullest extent.” As acting manager and head of the company he made its contracts for supplies, employed the miners, directed them where to work, made contracts with reference to improvements that were done on the mine, com-, promised and settled claims against the company on behalf of the company, managed the business of the company when the board of directors was not meeting. This course of conduct by the president had existed during his connection with the company, and seemingly the same course was pursued after the president’s death by the acting president.
On April 13, 1918, there was an open account existing between the plaintiff in her capacity as administratrix of the estate of William Mayger, deceased, and the defendant as a result of the relationship which had existed between William Mayger and the company. Plaintiff had caused an audit of the company’s books to be made, of which Charles F. Mayger,' the vice-president and acting president, had knowledge. He had seen the audit. On April 13, plaintiff presented to him two papers, duplicates, which he signed as vice-president and which she attested as secretary and upon which she placed the corporate seal. The one in evidence reads as follows:
“Helena, Montana, April 13, 1918.
“•St. Louis Mining & Milling Company to Frances Mayger, Administratrix of the Estate of William Mayger, Deceased.
“To balance due William Mayger on account as shown by the boobs' of the St. Louis Mining & Milling Company, $19,639.59. .
“Approved:
“St. Louis Mining & Milling Company,
“By Chas. F. Mayger, Yice-President.
“Attest: Frances Mayger, Secretary.
“[Corporate Seal.]”
Plaintiff retained one paper; some time later, probably four or six weeks afterward, she gave the other one to Charles F. Mayger. Plaintiff made demand on the company for payment of the amount due, but no payment was ever made thereon. Strenuous objection was made to the admission in evidence of the foregoing document, which we shall refer to as Exhibit “A.” In fact, its admission is the main error assigned.
Counsel insist that the president of a corporation as such has no inherent power to bind it by assenting to an account stated, and they say that, since plaintiff was a director and officer of the defendant company when Exhibit “A” was executed it discloses upon its face its own illegality, and before plaintiff can recover she must show the transaction to have been fair in all respects, and that the defendant, in acting with respect to it did so with full knowledge of all the circumstances.
Here it may be observed that defendant’s counsel have taken a wide range in their brief, carrying their contentions beyond the issues made up by the pleadings. It is unnecessary to refer to these contentions further than to reiterate that in the absence of a pleading on behalf of the defendant alleging fraud, error or mistake, it is not permissible to inquire into the items which made up the account stated, nor into the bona fides of the transaction.
This court never followed the ancient rule that the president of a corporation has no greater power than any other director. On the contrary, long ago it adopted the more modern, and what Mr. Fletcher (3 Fletcher’s Cyclopedia Private Corporations, sec. 2011) calls “the sensible rule, in accordance with the well-recognized ideas of the people at large, that a president of a corporation is the head of the corporation subject to the control of the board of directors as to matters out of the ordinary, but with power to bind the corporation in regard to contracts involved in the every-day business of the corporation.”
In Trent v. Sherlock, 24 Mont. 255, 61 Pac. 650, Mr. Chief Justice Brantly said: “No principle of law is more clearly settled than that an agent to whom is intrusted by a corporation the management of its local affairs, whether such agent be designated as president, general manager, or superintendent, may bind his principal by contracts which are necessary, proper, or usual to be made in the ordinary prosecution of its business [citing cases]. The fact that he occupies, by the consent of the board of directors, the position of such an agent, implies, without further proof, the authority to do anything which the corporation itself may do, so long as the act done pertains to the ordinary business of the company. (Mathias v. White Sulphur Springs Assn., 19 Mont. 359, 48 Pac. 624; Ceeder v. Lumber Co., 86 Mich. 541, 49 N. W. 575; Adams Mining Co. v. Senter, 26 Mich. 76; Marlatt v. Levee Steam Cotton Press Co., 10 La. 583; Siebe v. J. Hendy Machine Works, 86 Cal. 391, 25 Pac. 14.) Even where the contract in question pertains to matters without the ordinary course of business, but within the power of the corporation — that is, such as is not prohibited by its charter or by express provision of law — the authority of the agent may be established by proof of the ‘course of business between the parties themselves; by the usages and practice which the company may have permitted to grow up in its business; and by the knowledge which the board, charged with the duty of controlling and conducting the transactions and property of the corporation, had, or must be presumed to have had, of the acts and doings of its subordinates in and about the affairs of the corporation.’ (Mahoney Mining Co. v. Anglo-Californian Bank, 104 U. S. 192, 26 L. Ed. 707; see, also, Martin v. Webb, 110 U. S. 7, 28 L. Ed. 49, 3 Sup. Ct. Rep. 428 [see, also, Rose’s U. S. Notes]; Sparks v. Transfer Co., 104 Mo. 531, 12 L. R. A. 714, 15 S. W. 417.) ” And see Edwards v. Plains Light & Power Co., 49 Mont. 535, 143 Pac. 962.)
Upon the evidence narrated above and upon the foregoing authorities, prima facie at least Charles F. Mayger, vice-president and acting president, when he executed Exhibit “A,” did not exceed the powers which the company had for so long confided to the office of president.
The instrument is fair upon its face. It does not warrant the inference of illegality because signed by the plaintiff as secretary of the company. The mere fact that the plaintiff as secretary attested the document and placed thereon the company’s seal did not invalidate it. Her signature as secretary was not necessary to give the instrument validity, if the acting head of the company was authorized to execute it, and this he was, prima facie at least. The fact that she was administratrix of the estate of William Mayger, deceased, must not be overlooked. The law imposed upon her the duty of collecting all debts due to the decedent or to his estate. (See. 10257, Rev. Codes 1921.) She was chargeable with the decedent’s estate coming into her hands (sec. 10282) and would be held accountable for debts due the decedent uncollected through her fault (sec. 10284). If she neglected the estate, or neglected to perform her duties properly, she became subject to suspension, and even to having her letters revoked (sees. 10124, 10125, Rev. Codes 1921). So acting as she was, under the watchful eye of the court, she would have been held to a strict accountability if by reason of any negligence on her part a valid account belonging to the estate had been lost. As administratrix she'presented the document now known as Exhibit “A” to the head .of the, corporation who was charged with knowledge of the condition of the books, who knew there were unadjusted accounts between the estate of "William Mayger, deceased, and the corporation, and who must be presumed to have acted understanding^ in the matter.
To overcome plaintiff’s case, defendant’s counsel seem to take the position that, as plaintiff was a director and officer of the company when as administratrix she dealt with the company, a presumption of bad faith on her part attaches. This is based upon the principle that a director, a trustee, occupying a fiduciary relation to the stockholders as he does, may not enrich himself at their expense. He bears the obligation of serving his trust with fidelity and is forbidden to do any act by which the assets of the corporation are diverted from their proper channels. And when a director “has been dealing with the corporation, the burden is at once upon him to show that his dealings have been fair and honest.” Such is the language of this court in Hanson Sheep Co. v. Farmers & Traders’ State Bank, 53 Mont. 324, 163 Pac. 1151, citing Gerry v. Bismarck Bank, 19 Mont. 191, 47 Pac. 810; McConnell v. Combination M. & M. Co., 31 Mont. 563, 79 Pac. 248; Coombs v. Barker, 31 Mont. 526, 79 Pac. 1; Kleinschmidt v. American Mining Co., 49 Mont. 7, 139 Pac. 785. But this does not carry the implication that one may not demand payment of an honest debt due him from a corporation of which he is a director. Nor is there any implication that one who deals with a corporation of which he is a director deals in bad faith, — unless he gains an advantage thereby. We are mindful of the rules declared by sections 7888 and 7889, Eevised Codes of 1921, wherein it is laid down that “a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind,” and that a trustee “may not use or deal with the trust company for Ms own benefit.” There is nothing in the record to indicate that there was the slightest misrepresentation, concealment, threat or adverse pressure on the part of the plaintiff; neither any dealing with trust property for her own benefit. As administratrix she was simply a creditor of the corporation. If it be assumed, as it must be here, that the debt was bona fide, she, as a creditor of the corporation, was entitled to enforce her claim by the same method as might any other creditor. (Coombs v. Barker, supra; Tatem v. Eglanol Min. Co., 42 Mont. 475, 113 Pac. 295.)
The provisions of section 7895, Revised Codes of 1921, that “all transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence,” are not applicable to the instant case. The transaction here, so far as the record discloses, is of no greater moment than if the plaintiff had obtained from the president as acting head of the company a voucher directing payment of a just debt owing by the corporation to plaintiff’s decedent. There is not the slightest evidence that in obtaining the written instrument plaintiff gained any advantage over the corporation, or obtained from it anything which in good conscience she should not have obtained. Although she was an heir of "William Mayger, she was also administratrix acting under the direction of the law. Certain other presumptions apply to the conditions apparent here. The law presumes that private transactions have been fair and regular. (Sec. 10606, subd. 19, Rev. Codes 1921.) As the record does not contain any evidence of fraud on plaintiff’s part we will not assume that she acted with any fraudulent intent. (Floyd-Jones v. Anderson, 30 Mont. 351, 76 Pac. 751.) The law presumes that there was a good and sufficient consideration for the written contract. (See. 10606, subd. 39, Rev. Codes 1921.)
The defendant failed to introduce any substantial evidence to combat the showing made by the plaintiff. On the contrary, apparently fearing their inability to defeat the plaintiff’s case upon the answer, defendant’s counsel sought permission to file an amended answer, in which they undertook to set up error and mistake made by Charles Mayger in signing the instrument, fraud perpetrated in making entries in the book upon which the account stated was based, and in general to surcharge the account. The court denied the motion. Its reasons for so doing are so cogent we quote them in part: “The complaint in this ease was filed on the twenty-ninth day of June, 1918. It appears that it was not served until the twenty-fourth day of May, 1919. The complaint sets up the fact, or alleged fact, of an accounting, and of a balance claimed to be due to plaintiff. The answer was not filed until February 14, 1921 — nearly two years after service of the complaint, stating these facts or alleged facts. To change the issue after this time, after plaintiff has given her testimony and closed her case would simply mean a retrial of the whole issue. I do not know of any reason why the defendant could not in this time have investigated these books and found out something about it. There is a statement made there, there was an account, giving the date. "Well, they knew who the directors were; they knew the books; they knew whether there was this amount due plaintiff. * ® * To wait now until plaintiff has introduced her case and closed, and then introduce this other issue of fraud or mistake, would, it seems to me, be doing an injustice to this plaintiff. * * * It was an easy matter for the company to find out whether the directors or any of them acted upon it; it could certainly have been found out between the filing of the complaint and the filing of the answer, what the books show, as to the statement of account. The application of the defendant to file amended answer is denied.”
The court did not abuse its discretion in denying the application to amend. (Marcellus v. Wright, 65 Mont. 580, 212 Pac. 299; Cullen v. Western Mortgage & Warranty Title Co., 47 Mont. 513, 134 Pac. 302.)
The judgment is affirmed.
'Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-40,
-25,
6,
23,
31,
-13,
36,
-27,
7,
-10,
29,
6,
17,
2,
-12,
-4,
17,
-20,
58,
-32,
8,
-63,
-13,
-25,
10,
19,
23,
3,
3,
-33,
-9,
-22,
-33,
19,
-29,
19,
0,
-3,
-40,
-28,
17,
5,
92,
-5,
5,
40,
-26,
-79,
63,
-13,
89,
-39,
-12,
12,
-10,
-34,
5,
-1,
-42,
-6,
12,
-46,
80,
-15,
33,
-22,
14,
-33,
-17,
14,
4,
8,
39,
-9,
3,
-47,
-29,
-28,
-33,
-12,
-33,
-9,
18,
5,
7,
28,
-45,
34,
-1,
32,
26,
29,
8,
0,
30,
41,
-31,
43,
-44,
12,
70,
-31,
-60,
-4,
11,
2,
-1,
11,
49,
16,
-14,
18,
-29,
-46,
-61,
21,
-16,
-53,
-46,
-53,
4,
2,
14,
9,
-12,
49,
-25,
-11,
1,
16,
8,
29,
-14,
39,
-3,
-33,
-7,
13,
-40,
20,
-8,
-39,
-65,
-43,
-9,
42,
9,
14,
1,
-67,
-3,
9,
-1,
54,
-4,
-17,
2,
-23,
13,
-67,
46,
3,
47,
-49,
-44,
24,
-12,
-48,
-35,
-63,
-15,
-12,
-51,
-49,
-26,
43,
20,
-7,
-17,
-4,
5,
-3,
4,
-17,
-42,
-13,
37,
49,
32,
28,
36,
-44,
26,
4,
-39,
34,
-8,
21,
85,
-48,
41,
-53,
-15,
-1,
-3,
25,
-12,
-17,
-14,
-20,
1,
0,
35,
-17,
-40,
0,
-4,
-58,
-7,
3,
42,
9,
-27,
38,
10,
-47,
56,
-65,
-25,
4,
-13,
-21,
4,
9,
-38,
-10,
23,
-25,
-6,
17,
-43,
-39,
-47,
-56,
-14,
-5,
-35,
0,
-8,
25,
-28,
-34,
22,
23,
-16,
17,
-28,
-6,
-66,
-67,
-16,
35,
6,
45,
8,
-9,
-33,
-3,
-20,
-35,
34,
-34,
59,
15,
-24,
-47,
43,
-3,
-29,
-23,
-36,
9,
-4,
29,
16,
0,
-3,
0,
-35,
-30,
27,
-7,
15,
-29,
87,
9,
-32,
33,
-20,
13,
-79,
-59,
44,
29,
39,
25,
-34,
-12,
-2,
-46,
-53,
62,
24,
-46,
49,
31,
-4,
8,
3,
5,
3,
-17,
-10,
29,
38,
26,
1,
-20,
29,
27,
24,
15,
11,
49,
-29,
-41,
30,
33,
-6,
-3,
33,
32,
14,
-9,
-55,
28,
-20,
-45,
-41,
-18,
-10,
-75,
-36,
26,
2,
43,
46,
-33,
-44,
19,
17,
55,
-22,
-41,
-17,
10,
-39,
-15,
30,
13,
-25,
36,
-24,
-53,
37,
-9,
-5,
6,
-22,
43,
41,
14,
0,
-28,
57,
-4,
-4,
3,
0,
-24,
-7,
-22,
1,
66,
-54,
17,
25,
-32,
-25,
8,
-33,
-37,
10,
-32,
-44,
-52,
-7,
-4,
-41,
4,
31,
7,
-4,
4,
38,
-32,
41,
55,
47,
53,
80,
-15,
5,
0,
24,
-82,
-8,
-14,
-15,
12,
29,
14,
-26,
-22,
10,
-18,
-3,
-16,
-16,
25,
39,
23,
52,
52,
0,
-12,
-17,
-12,
68,
37,
-19,
2,
12,
40,
-32,
48,
29,
-29,
-1,
-5,
16,
32,
28,
34,
35,
-24,
64,
-11,
20,
81,
-15,
48,
9,
13,
-2,
18,
12,
-45,
-6,
-34,
-41,
19,
27,
-14,
-31,
17,
-24,
-34,
40,
-9,
15,
5,
-22,
-48,
-17,
-9,
-51,
16,
11,
-30,
-40,
-5,
70,
-18,
-11,
12,
56,
-49,
25,
87,
-41,
-4,
19,
32,
45,
-24,
-8,
7,
-9,
35,
-4,
-4,
-70,
68,
-32,
-43,
5,
-40,
78,
-15,
-22,
18,
-41,
-27,
-44,
-7,
29,
20,
7,
-51,
23,
-22,
15,
16,
-36,
23,
9,
0,
-3,
-19,
-3,
-15,
49,
20,
24,
19,
18,
-3,
17,
-14,
-15,
21,
-51,
-31,
39,
1,
-14,
-52,
-32,
11,
-13,
6,
0,
2,
2,
-22,
15,
-3,
72,
-22,
-19,
-72,
10,
-48,
-38,
57,
7,
16,
17,
2,
20,
-23,
-42,
19,
20,
-15,
-9,
-10,
-14,
29,
-22,
-37,
-25,
21,
-49,
4,
-15,
22,
-14,
10,
35,
25,
11,
-3,
39,
8,
-16,
-52,
49,
28,
28,
5,
-9,
-3,
38,
46,
-44,
-2,
-15,
14,
11,
-16,
-17,
12,
-15,
27,
-1,
53,
-57,
-25,
48,
34,
56,
21,
-44,
-33,
28,
2,
72,
-15,
14,
22,
-14,
2,
-41,
28,
9,
-36,
9,
-51,
-13,
-19,
12,
-12,
6,
45,
23,
59,
27,
-38,
35,
-61,
16,
0,
33,
-27,
30,
38,
23,
-29,
-8,
-14,
17,
26,
-12,
7,
44,
69,
-16,
-13,
42,
-32,
-44,
10,
-42,
34,
7,
19,
-35,
-78,
-2,
-48,
-10,
41,
15,
-19,
-54,
-43,
-8,
7,
9,
-42,
-36,
-43,
-7,
-8,
32,
-4,
-50,
-32,
-23,
-43,
-23,
-52,
-38,
-7,
34,
5,
-8,
-6,
34,
36,
-21,
18,
-1,
16,
-7,
0,
-15,
-13,
-4,
15,
-2,
39,
-4,
21,
-22,
-37,
53,
19,
50,
-8,
-13,
21,
16,
3,
-40,
52,
27,
-38,
-24,
-4,
-33,
0,
-46,
55,
-64,
-9,
-9,
2,
-35,
-45,
-11,
26,
11,
44,
27,
13,
22,
54,
50,
-3,
-62,
56,
18,
-14,
47,
43,
27,
84,
-11,
-25,
-9,
-41,
-30,
2,
-24,
-11,
6,
-41,
28,
6,
53,
40,
6,
-35,
28,
21,
21,
2,
-46,
-59,
13,
-62,
-4,
48,
-51,
19,
-3,
-41,
-62,
-38,
-17,
9,
0,
41,
-17,
45,
-23,
39,
21,
-44,
-43,
28,
5,
-3,
20,
8,
-57,
-46,
0,
0,
-7,
31,
38,
12,
-68,
42,
33,
47,
19,
-11,
-16,
37,
-82,
-38,
-6,
-10,
21,
37,
-3,
13,
-73,
17,
37,
0,
-3,
-22,
16,
-30,
16,
25,
8,
-7,
21,
32,
8,
-57,
48,
-5,
-44,
46,
39,
-6,
-11,
28,
51,
5,
-4,
41,
-22,
-26,
2,
4,
16,
-87,
-20,
-51,
24,
-2,
3,
-7,
21,
-11,
-8,
52,
39,
35,
-48,
66,
34,
-30,
6,
33,
-32,
86,
56,
3,
15,
31,
66,
3,
-25,
-27,
2,
-6,
3,
26,
-17,
28,
-5,
5,
49,
-2,
13,
31,
-22,
-33,
-13,
12,
32,
3,
55,
-5,
-7,
-2,
52,
-62,
18,
42,
11,
-4,
35,
53,
24,
-58,
17,
-35,
-34,
4,
-24,
29,
-24,
30,
6,
0,
-25,
-5,
7,
-41,
11,
-16,
22,
-48,
-24,
-32,
40,
-12,
-7,
12,
74,
-20,
-75,
77,
-17,
-12,
-73,
-8,
48,
20,
-6,
26,
9,
35,
54,
24,
11,
-8,
9,
-30,
-22,
-44,
3,
-7,
-8,
-34,
-4,
15,
33,
-3,
16,
13,
2,
28,
11,
24,
-5,
15,
-5,
6,
-28,
-6,
-67,
-26
] |
ME. JUSTICE' STAEK
delivered the opinion of the court.
The complaint herein sets forth one cause of action in two separate counts. In the first count it is alleged: (1) That defendants, at all the times mentioned, were and still are the owners of the northwest quarter of section 19, township 1 south, range 26 east, M. P. M., and of forty-five shares of the capital stock of the Yellowstone & Canyon Creek Ditch Company, a corporation, which shares of stock represented and stood for the water rights appurtenant to said land and evidenced the defendants’ title to such water rights “and by reason thereof run with the title thereto.” (2) That on December 3, 1918, plaintiff and defendants entered into a written agreement whereby defendants agreed to sell to plaintiff, and plaintiff agreed to purchase said land and water rights for the sum of $27,500, of which amount $6,000 was paid at the time of the execution of the agreement, $2,000 was to be paid on January 1, 1919, and the balance of $19,500 on March 1, 1919, that the plaintiff made payment of the $2,000 due on January 1, 1919, and prior to the commencement of the action had tendered to defendants the final payment of $19,500 and demanded from them a conveyance of the land in the manner and form as required by the terms of their agreement, but that defendants had failed, neglected and refused to execute and deliver such conveyance to the plaintiff, and that the plaintiff was ready, able and willing to pay to defendants the balance due from him to them in accordance with the agreement.
The allegations of the second count are identical with those of the first, with the exception that after the description o'f the land and water right and the allegation “and by reason thereof run with the title thereto” as above quoted, the following appears: “ Or so much of the lands and premises above described as would be embodied in government lots numbered 1, 2 and 5, and the northeast quarter of the northwest quarter of said section, which lands last above described as this plaintiff is informed and believes, do not constitute or comprise the entire northwest quarter of said section 19 or one-fourth of the area contained within the confines of said section 19 as bounded by the section lines thereof, but on the contrary are deficient in quantity of lands embraced within and constituting the northwest quarter of said section.”
The prayer of the complaint is (1) that defendant's be required to execute and deliver to plaintiff deeds “for the lands covered by the description embodied in the contract upon which this action is based, to-wit, the northwest quarter of section 19, township 1 south, range 26 east, of Montana principal meridian, or so much thereof as the defendants aforesaid own, hold and possess; (2) that a just, proper and equitable deduction from the purchase price provided for by the terms and conditions of the contract set forth in plaintiff’s first and second cause of action herein may be made on account of any deficiency in the quantity of said lands, and that upon the payment of the residue of the said purchase price” the defendants be required to execute and deliver to plaintiff a conveyance “for so much of the lands as it may be found and determined that the defendants held and possessed at the time of the making and entering into of this contract”; (3) that defendants be required to convey the forty-five shares of stock in the ditch company to plaintiff in accordance with their agreement.
The second amended answer of the defendants admitted the ownership- of the land and shares of stock in the ditch company, the execution of the agreement set out in the complaint, that plaintiff paid defendants the sum of $6,000 at the time of the execution of the agreement and had made the payment of $2,000 due on January 1, 1919, and denied any knowledge or information sufficient to form a belief as to the number of acres contained in the tract of land owned by them, and which they sold and agreed to convey to plaintiff. The answer then alleges that the tract of land mentioned in the agreement as the northwest quarter of said section 19, consists of the northeast quarter of the northwest quarter and lots 1 and 2 and so much of lot 5 of said section as lies north of the extended south line of said lot 2; that because only a portion of said lot 5 was owned by defendants it was impossible to describe defendants’ tract of land by giving the government numbers or subdivision designations therefor for which reason the same was described as the northwest quarter of said section, which was the usual and customary way of describing similar tracts of land in Yellowstone county (which custom is set out more in detail), and that it was in accordance with such general custom that the land was designated as the northwest quarter, and not for the purpose of indicating that 160 acres of land were included in the tract sold.
It is further alleged that the land was sold as one entire tract — -being the farm belonging to the defendants; that the sale was made in gross and for a lump sum, not as any particular number of acres or on an acreage basis; that defendants never quoted or offered to sell the lands, improvements, and water stock to plaintiff on an acreage basis or any specified sum per acre; that they did not represent that the premises sold contained 160 acres or any particular number of acres. The prayer of the answer is that plaintiff take nothing and that defendants recover from plaintiff the sum of $19,500 with interest at eight per cent per annum from March 1, 1919.
All the affirmative allegations of the answer were put in issue by the plaintiff’s reply thereto.
The case was tried without a jury, and the court made findings of fact to the effect that the land was sold in an entire tract, for a lump sum of money, that it was not sold on an acreage basis, and that the purchase price was not based upon any agreed price per acre, and that no representations were made to plaintiff as to the number of acres contained in the farm which he purchased and which is the subject of the action. As conclusions of law the court found that defendants were entitled to recover from plaintiff the balance of the purchase price of the land, to-wit, $19,500, with interest from March 1, 1919, and that upon payment of that amount plaintiff was entitled to a conveyance of the property described in the complaint.
On January 10, 1921, a judgment was entered reciting the findings and conclusions of the court, and also the following: “It further appears to the court, from written stipulation of counsel filed herein, that the land in question has been conveyed by defendant to plaintiff; that plaintiff has paid the purchase price therefor, with the exception of that portion of the purchase price which was in dispute; that the amount of the unpaid purchase price was $3,583.59; that said sum of money was deposited by plaintiff in the Merchants’ National Bank of Billings on time certificate of deposit to be paid to such one of the parties to this action, or divided between them, as may be finally determined by the court”; and then adjudging the defendants recover from plaintiff the sum of $3,583.59, as evidenced by the certificate of deposit for that amount in the Merchants’ National Bank of Billings.
. Plaintiff made a motion for new trial which was overruled on December 30, 1921, and has appealed to this court from both the judgment and the order overruling his motion for new trial.
It is difficult to understand plaintiff's position on these appeals. Notwithstanding the fact that in his complaint he asks that defendants be required to specifically comply with the terms of the written instrument which he designates as a contract, by making a conveyance to him of the property which it describes, and the further fact that a recital in the decree shows that such a conveyance had been made during the pendency of the action, his entire brief is devoted to an effort to establish as a matter of law that the instrument which he designated as a contract was not such in fact, in the light of the testimony, because (1) the land which by its terms was to he conveyed was not described with sufficient certainty to enable it to be located, and (2) that the minds of the parties thereto never met upon the proposition of the amount of land to be conveyed under its terms. For these reasons only he argues that the judgment should be reversed and the cause remanded, with directions that it be dismissed.
In the view which we take of the record, whether the instrument referred to in the complaint was a valid contract, subject to enforcement as such in an action for its specific performance, has become a moot question, interesting perhaps from an academic point of view, hut its decision could not result in any practical relief to the parties to this suit, since, according to the solemn declaration of the judgment entered herein, they have by stipulation consummated the deal contemplated in the instrument, irrespective of any defects which may have existed therein.
“It is not within the province of appellate courts to decide abstract, hypothetical, or moot questions, disconnected from the granting of actual relief, or from the determination of which no practical relief can follow.” (3 C. J. 358.)
This court has on numerous occasions decided that when it is made to appear on appeal that there is no controversy left to be determined, the appeal will be dismissed. (State ex rel. Begeman v. Napton, 10 Mont. 369, 25 Pac. 1045; Snell v. Welch, 28 Mont. 482, 72 Pac. 988; In re Black’s Estate, 32 Mont. 51, 79 Pac. 554; State ex rel. Brass v. Horn, 36 Mont. 418, 93 Pac. 351; see, also, Carlson v. City of Helena, 38 Mont. 581, 101 Pac. 163.)
The rules above announced are applicable here. If appellant’s contention should be sustained, if this court should by its decision declare that the instrument set out in the complaint did not constitute a contract whose specific performance could be decreed, no useful purpose would be served, since, according to the recitals in the decree entered in the lower court, which recitals were inserted pursuant to stipulation of the parties, the land in question has been conveyed by defendants to plaintiff and “plaintiff has paid the purchase price therefor, with the exception of that portion of the purchase price which was in dispute.” Hnder these circumstances no practical result could follow from a determination of the points made by appellant.
It is true that the stipulation under which the foregoing recital was made in the court’s decree declares that the case shall proceed as though the land had not been conveyed and no part of the purchase money paid, and that no proceedings had thereunder should be referred to in the trial, but that the same “shall proceed the same as though this stipulation were not entered into.” But the stipulation further provides: “So far as necessary to protect the rights of the parties hereto, this stipulation, or the substance thereof, shall be incorporated in the final decree in this suit.”
"While the stipulations of counsel in the conduct of litigation are to be regarded upon all proper occasions, they may not, by such a stipulation as this one, deprive the court of the right to consider the whole of the judgment appealed from, and thereby present a moot question to this court as the basis of a judicial decision.
Rehearing denied December 17, 1923.
For the reasons indicated and upon the authorities aboYe cited, the appeals in this case are dismissed.
Dismissed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
[
-15,
34,
25,
11,
0,
-20,
27,
7,
33,
31,
0,
-5,
34,
25,
18,
28,
-30,
-11,
34,
5,
19,
-53,
-32,
-54,
-23,
8,
-15,
-35,
-3,
1,
51,
28,
-42,
-35,
8,
39,
14,
8,
-34,
-13,
12,
11,
28,
-46,
60,
42,
-4,
-63,
31,
-13,
49,
-18,
19,
-18,
-30,
-54,
-61,
-1,
-28,
39,
-20,
-52,
63,
20,
21,
-14,
43,
-15,
35,
19,
-33,
30,
10,
7,
53,
-14,
-20,
-44,
-8,
-19,
6,
-29,
34,
-8,
4,
0,
-31,
-7,
37,
-29,
6,
19,
18,
27,
6,
6,
14,
0,
-34,
33,
45,
-60,
8,
8,
45,
-42,
-74,
-12,
41,
29,
-27,
30,
9,
-46,
-21,
-22,
-3,
-25,
-34,
-55,
-8,
-16,
-12,
26,
-28,
36,
-20,
3,
9,
34,
-17,
0,
2,
3,
7,
-6,
-9,
-37,
23,
1,
-25,
-3,
-49,
-36,
-3,
41,
38,
38,
-11,
-50,
-34,
19,
45,
10,
-17,
-38,
34,
-15,
40,
-47,
36,
-15,
3,
-15,
-45,
88,
6,
-63,
-13,
7,
-13,
-28,
-59,
-51,
46,
-8,
48,
-34,
18,
9,
13,
40,
10,
-16,
-8,
-52,
-40,
8,
33,
20,
34,
-28,
3,
-12,
-47,
61,
-29,
2,
2,
13,
17,
-45,
-31,
15,
-54,
17,
11,
57,
31,
60,
10,
17,
46,
-41,
-15,
-3,
0,
10,
-20,
-28,
49,
-8,
-29,
44,
-10,
-30,
67,
-21,
18,
-13,
-30,
-20,
24,
26,
-53,
-7,
-3,
12,
-36,
-18,
-30,
-9,
-49,
-14,
26,
24,
-50,
-13,
9,
47,
-30,
-55,
-26,
7,
0,
-7,
-19,
25,
-39,
-65,
5,
4,
21,
-20,
-62,
-60,
-23,
-25,
-2,
18,
-6,
0,
23,
13,
-33,
-49,
4,
-19,
1,
44,
9,
-38,
7,
7,
-15,
-10,
17,
47,
-30,
33,
-24,
28,
2,
-36,
40,
17,
-9,
-6,
59,
-15,
-66,
-34,
19,
29,
3,
23,
-26,
18,
5,
-15,
-27,
0,
-33,
-1,
-5,
46,
0,
5,
35,
-3,
44,
46,
4,
31,
13,
10,
54,
-10,
-37,
13,
-10,
15,
-14,
20,
-17,
-44,
15,
-40,
-23,
4,
51,
10,
39,
13,
-34,
22,
15,
1,
-20,
0,
-18,
-16,
-59,
21,
-40,
5,
8,
-5,
15,
-1,
39,
11,
20,
-26,
-30,
17,
-33,
-59,
64,
21,
-32,
40,
-6,
25,
34,
-1,
17,
-1,
-68,
31,
-8,
-11,
17,
52,
39,
54,
19,
-18,
-45,
-26,
-32,
-6,
-3,
75,
17,
-27,
-23,
-23,
-41,
-29,
14,
27,
7,
0,
-5,
-21,
27,
-7,
-19,
19,
-7,
-60,
-28,
-70,
0,
-2,
-16,
31,
15,
29,
18,
-4,
13,
-22,
35,
-46,
23,
-4,
-39,
-9,
-8,
27,
-10,
18,
-7,
15,
-27,
-10,
-33,
55,
27,
38,
-21,
23,
-13,
5,
0,
41,
47,
31,
16,
30,
-53,
17,
-32,
43,
64,
-48,
54,
-3,
-32,
45,
28,
-11,
-15,
0,
52,
-41,
-16,
60,
15,
29,
-11,
21,
1,
15,
-38,
-9,
30,
-28,
-8,
-40,
9,
-8,
-59,
-24,
-44,
-11,
17,
16,
46,
40,
7,
-60,
-26,
-52,
-20,
-20,
33,
-6,
13,
-9,
27,
-39,
-13,
48,
24,
-16,
-18,
81,
12,
-12,
24,
-43,
-10,
40,
48,
-17,
-5,
19,
25,
19,
-30,
13,
-23,
-29,
35,
-5,
60,
-9,
-65,
-15,
-56,
27,
8,
-10,
40,
7,
6,
-51,
-10,
-22,
51,
-5,
-6,
12,
12,
-17,
36,
-16,
2,
-42,
11,
53,
2,
8,
17,
-58,
7,
25,
-6,
2,
-17,
-76,
32,
54,
0,
-23,
-39,
13,
-45,
27,
20,
-8,
24,
1,
-18,
8,
6,
18,
-10,
-55,
-25,
-20,
-30,
49,
37,
21,
-7,
0,
1,
-37,
-10,
-9,
37,
3,
69,
22,
-5,
58,
-17,
-25,
-23,
3,
3,
27,
-35,
14,
31,
-6,
-14,
14,
23,
14,
22,
27,
20,
-50,
46,
7,
42,
-45,
41,
11,
-10,
-10,
-49,
15,
-79,
31,
29,
3,
25,
-12,
49,
41,
13,
15,
-25,
25,
18,
-19,
-30,
-6,
-14,
-2,
-24,
61,
30,
-39,
-24,
34,
18,
-37,
9,
7,
9,
14,
26,
-44,
31,
-3,
-19,
-18,
-21,
-37,
14,
-4,
5,
6,
44,
-34,
38,
14,
3,
-35,
65,
38,
-1,
-10,
12,
14,
7,
15,
23,
-26,
43,
-18,
-15,
28,
12,
35,
-29,
25,
-37,
-5,
-4,
17,
-26,
-26,
5,
-15,
0,
-9,
0,
22,
-10,
-14,
-16,
1,
48,
-56,
6,
5,
-59,
-3,
-3,
11,
-47,
-1,
-12,
-4,
-8,
-16,
41,
-4,
-1,
-14,
-38,
26,
17,
62,
-7,
9,
-9,
54,
-56,
-16,
-18,
-36,
40,
-1,
-3,
29,
14,
-1,
19,
8,
16,
1,
17,
3,
54,
35,
11,
-13,
-78,
-2,
-19,
-12,
20,
12,
-42,
25,
-14,
-7,
21,
-42,
-33,
-23,
-18,
-10,
-42,
-14,
-3,
-1,
0,
24,
31,
-1,
-4,
-6,
-63,
-12,
6,
-22,
28,
43,
23,
16,
-33,
-56,
39,
-28,
-61,
38,
14,
1,
-38,
-29,
-9,
-14,
26,
50,
-1,
-7,
-14,
25,
13,
4,
-71,
-42,
1,
-40,
25,
7,
7,
18,
23,
-56,
-24,
-1,
-7,
31,
54,
0,
15,
-15,
-78,
17,
39,
-51,
-35,
66,
22,
11,
12,
-9,
-9,
13,
-18,
-40,
-40,
2,
11,
11,
-41,
12,
7,
-12,
-15,
22,
-36,
3,
-33,
-12,
-33,
-10,
46,
46,
44,
22,
-5,
9,
40,
-7,
7,
-10,
-23,
20,
-2,
52,
-19,
-28,
8,
-34,
-21,
-48,
52,
-14,
-16,
14,
6,
20,
-6,
68,
19,
19,
20,
64,
-13,
-30,
-55,
-7,
12,
-36,
0,
-1,
-12,
-3,
0,
10,
-3,
2,
-33,
30,
18,
23,
4,
44,
40,
-75,
-67,
-3,
-27,
-5,
-15,
-17,
3,
42,
22,
-18,
-46,
18,
-23,
2,
0,
55,
9,
33,
-20,
25,
-7,
0,
-15,
23,
-8,
-39,
-25,
-35,
-13,
-15,
68,
62,
12,
-13,
29,
-45,
11,
2,
2,
73,
20,
64,
5,
-28,
-71,
5,
-20,
-73,
-36,
-5,
-22,
0,
12,
-42,
29,
6,
37,
-3,
28,
-54,
-36,
-17,
14,
18,
-36,
10,
-4,
-5,
60,
-14,
-52,
9,
52,
51,
-16,
-47,
-33,
0,
19,
59,
21,
-5,
8,
-23,
26,
-12,
22,
-49,
0,
-34,
1,
12,
-36,
-13,
10,
17,
44,
-58,
-29,
11,
48,
-2,
-19,
47,
-4,
37,
-63,
-1,
-8,
11,
-12,
21
] |
HONORABLE A. C. SPENCER,
District Judge, sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court.
Sufficient statement of the issues as defined by the pleadings is contained in the two former opinions of this court and need not be repeated here. (Union Bank & Tr. Co. v. Himmelbauer, 56 Mont. 82, 181 Pac. 332; Id., 57 Mont. 438, 188 Pac. 940.) This appeal is from a judgment in favor of plaintiff and against defendant Mabel Himmelbauer.
The facts essential to a determination of the question here involved may be condensed to the following: May 17, 1917, Antone and Mabel Himmelbauer executed their promissory note to plaintiff in the sum of $9,600, due six months after date. The same day, without the knowledge or consent of Mabel Himmelbauer, Antone Himmelbauer executed and delivered to plaintiff a chattel mortgage to secure payment of the note. Prior to maturity of the debt plaintiff declared the obligation due and payable, took possession of and sold the property described in the mortgage, and credited the proceeds upon the note, all in accordance with the provisions of the mortgage. An insufficient amount was obtained from the sale to satisfy the note and plaintiff brought its action to recover the unpaid balance. Defendant Mabel Himmelbauer alone answered the complaint, setting up seven separate defenses, the only one of which necessary to a determination of this appeal being her denial of any liability under the terms of the mortgage, because as she alleged she was not a party to and had not signed the same, and that the note was not due at the time the suit was commenced. The reply admitted that she did not sign the mortgage. Confessedly, according to the pleadings, the action was commenced before the maturity of the note, unless the due date were accelerated by the terms of a mortgage binding upon Mabel Himmelbauer.
The complaint alleges a cause of action against the defendants as makers of both the note and mortgage, but plaintiff’s reply, admitting the allegations of the answer that Mabel Himmelbauer did not sign the mortgage, left but one theory open to plaintiff upon which it could prevail if at all, viz., that even though she did not sign the mortgage .she was nevertheless bound by its terms by reason of its being a part of the one transaction between the plaintiff bank, herself, and husband, the purpose and the details of which she knew and consented to. There is not any allegation in the complaint or reply as a basis for this theory, nor is there any evidence sufficient to sustain it.
Rehearing denied July 16, 1923.
It is elementary in pleading that all elements essential to make out a cause of action must be alleged. (Chealey v. Purdy, 54 Mont. 489, 171 Pac. 926; sec. 9129, Rev. Codes 1921). Plaintiff’s admission of the allegation of the answer that Mabel Himmelbauer did not sign the mortgage, and its failure to allege any other facts by reason of which the due date of the note became accelerated, disclose that it was without right to maintain the action against her at the time it was commenced, and under the pleadings it was not entitled to offer proof of the circumstances surrounding the execution of the mortgage.
The evidence of plaintiff not only fails to disclose that Mabel Himmelbauer had any knowledge of the mortgage in question or any of the facts and circumstances surrounding its execution, but it affirmatively appears from the uncontradieted testimony of the defendant that she had no knowledge of, gave no consent to, nor was present at the delivery of, the chattel mortgage at the time of its execution.
Under the only theory available to the plaintiff it not only commenced its action prematurely, but the proof is insufficient to sustain the judgment.
The judgment is reversed and the caused remanded to the district court, with directions to enter judgment dismissing the complaint and for defendant’s costs.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
-19,
0,
4,
-35,
-25,
12,
32,
-21,
41,
-28,
-16,
33,
0,
23,
10,
14,
-1,
-33,
34,
-39,
-21,
-68,
-25,
-53,
-55,
21,
13,
-1,
39,
28,
27,
-8,
-56,
51,
1,
-8,
27,
-4,
80,
-4,
13,
-7,
17,
-20,
2,
50,
11,
-81,
-15,
-27,
34,
-38,
9,
28,
-4,
-16,
-49,
27,
-30,
-18,
2,
-69,
60,
33,
1,
-33,
17,
-27,
20,
-12,
-4,
-24,
5,
-7,
-46,
-30,
-6,
-7,
-75,
-31,
-19,
-48,
26,
-10,
4,
-29,
-7,
33,
-43,
56,
29,
37,
42,
37,
16,
1,
-25,
11,
5,
41,
8,
-70,
-30,
55,
-11,
8,
-51,
19,
3,
33,
-22,
45,
29,
9,
-47,
31,
-59,
21,
-24,
-7,
-24,
9,
-21,
-23,
38,
55,
-61,
30,
-11,
2,
-46,
3,
-36,
33,
-38,
-15,
-19,
-40,
-2,
26,
-1,
-46,
-7,
-48,
10,
-16,
61,
-40,
-21,
-49,
-20,
20,
34,
30,
-5,
-57,
-3,
-68,
2,
-19,
-8,
-65,
29,
10,
-9,
-4,
21,
-9,
25,
-30,
22,
30,
3,
-50,
10,
12,
60,
-40,
47,
11,
4,
19,
17,
5,
28,
36,
-44,
27,
55,
21,
-5,
-17,
-36,
23,
0,
-16,
-74,
-11,
37,
11,
2,
-16,
-5,
6,
-42,
1,
-7,
-39,
-3,
-18,
28,
-23,
-11,
24,
-36,
37,
0,
-14,
0,
20,
-4,
-13,
-26,
-21,
-26,
-53,
32,
4,
31,
14,
-72,
-39,
22,
43,
33,
7,
29,
-51,
-5,
14,
7,
11,
58,
25,
-51,
-16,
-56,
16,
-6,
-21,
-69,
17,
3,
39,
-1,
45,
14,
-6,
-36,
-48,
28,
61,
-21,
25,
30,
-33,
4,
-8,
2,
35,
35,
-28,
25,
47,
20,
-3,
33,
2,
19,
18,
-16,
-25,
9,
69,
17,
51,
4,
24,
3,
14,
17,
-33,
3,
2,
20,
-24,
-84,
8,
-21,
17,
-1,
-21,
41,
5,
0,
-18,
-19,
20,
-16,
-27,
5,
30,
0,
-21,
32,
68,
-26,
24,
11,
31,
51,
-1,
-20,
9,
20,
-5,
8,
-27,
-43,
2,
37,
33,
2,
59,
-35,
1,
31,
4,
45,
-44,
7,
-3,
32,
-1,
-16,
0,
-27,
-38,
-3,
35,
-42,
-3,
-43,
-2,
0,
80,
22,
-6,
-16,
47,
26,
62,
16,
-54,
-32,
49,
-5,
-23,
5,
12,
0,
-2,
-11,
-25,
-52,
-10,
-30,
44,
-23,
62,
5,
29,
25,
71,
2,
34,
32,
-28,
-4,
-26,
-4,
34,
31,
63,
-59,
-32,
-31,
-2,
-70,
-60,
-38,
13,
-29,
1,
12,
37,
-3,
-29,
-70,
-9,
43,
-40,
-3,
-4,
36,
-25,
16,
43,
-13,
14,
6,
-28,
45,
19,
-15,
-30,
31,
-4,
-30,
20,
-13,
36,
-72,
-37,
-11,
25,
33,
-10,
8,
24,
40,
78,
0,
50,
14,
35,
-11,
-21,
42,
-2,
14,
-38,
55,
22,
46,
6,
38,
7,
1,
-13,
71,
21,
29,
55,
-5,
3,
-14,
11,
-32,
47,
7,
-6,
24,
-2,
13,
75,
13,
5,
-31,
9,
-76,
12,
15,
0,
-9,
-22,
-58,
-110,
1,
-3,
10,
-35,
-44,
15,
-34,
-18,
-62,
-66,
1,
-6,
-34,
15,
10,
-1,
-10,
-9,
55,
-66,
20,
-15,
14,
-6,
5,
67,
35,
-9,
8,
45,
-25,
46,
12,
-3,
-38,
60,
-20,
-14,
43,
21,
7,
2,
6,
66,
-38,
-6,
18,
24,
49,
72,
-1,
-15,
-47,
-2,
-10,
7,
-34,
16,
-28,
-1,
15,
-2,
18,
-44,
14,
42,
5,
-20,
-27,
-21,
-14,
-8,
26,
62,
0,
-37,
23,
-42,
40,
-32,
-32,
-15,
-42,
-7,
-33,
-29,
-46,
-59,
-31,
-17,
24,
-18,
-17,
-28,
-48,
-42,
-29,
40,
20,
29,
-44,
47,
60,
17,
1,
34,
6,
-41,
-20,
-3,
9,
55,
-15,
-8,
-20,
8,
-8,
-34,
-69,
53,
22,
45,
-6,
32,
0,
32,
-2,
-55,
-13,
-12,
17,
-41,
13,
67,
5,
19,
2,
-19,
-43,
37,
-20,
15,
13,
-7,
17,
8,
-15,
52,
-12,
-31,
-2,
-42,
14,
50,
0,
42,
-39,
-8,
-4,
-4,
61,
-26,
32,
17,
18,
-74,
29,
-65,
45,
-34,
-18,
-10,
34,
-25,
-24,
11,
57,
-22,
26,
33,
-4,
3,
36,
-37,
61,
-2,
2,
-9,
-9,
42,
27,
-15,
29,
-8,
2,
50,
-25,
-69,
19,
4,
-43,
8,
29,
-60,
4,
16,
3,
31,
-2,
36,
-21,
7,
55,
-43,
0,
13,
-22,
56,
-34,
-24,
-7,
-23,
16,
10,
-66,
-46,
-7,
-33,
44,
-36,
-15,
-10,
3,
-26,
22,
-19,
-55,
0,
11,
4,
1,
28,
27,
18,
-16,
14,
-22,
-1,
-5,
-10,
-18,
26,
-37,
-13,
13,
-7,
-41,
-21,
-20,
-3,
11,
28,
4,
-43,
-10,
-48,
16,
6,
-45,
23,
-15,
-10,
-30,
32,
11,
-45,
-7,
83,
-23,
-32,
-36,
-45,
-3,
-13,
-5,
-8,
35,
0,
9,
-13,
15,
-8,
3,
-37,
7,
-23,
66,
27,
45,
72,
49,
54,
-20,
4,
-61,
-29,
-31,
48,
8,
-55,
-15,
0,
-2,
-19,
-7,
19,
9,
25,
-7,
3,
30,
58,
-39,
-50,
27,
-54,
-8,
12,
40,
15,
9,
-27,
-89,
34,
44,
-12,
-6,
7,
-40,
22,
10,
17,
39,
-50,
-14,
12,
2,
5,
5,
71,
11,
-21,
-23,
-42,
-37,
1,
13,
14,
35,
50,
18,
-43,
13,
12,
0,
24,
-76,
-49,
-16,
26,
9,
-32,
-31,
25,
-35,
6,
24,
-23,
-46,
6,
22,
27,
-35,
1,
-43,
-3,
-15,
-38,
51,
-69,
17,
59,
-33,
14,
41,
8,
-17,
2,
13,
39,
-23,
40,
-37,
-1,
-28,
-6,
-57,
-35,
30,
-88,
10,
26,
0,
-39,
59,
-20,
1,
42,
-5,
38,
12,
46,
31,
-18,
-13,
-71,
-18,
52,
-7,
-87,
32,
26,
10,
-32,
-51,
-7,
-5,
-19,
-24,
24,
-54,
43,
-28,
46,
-5,
50,
26,
9,
-38,
-19,
-10,
11,
-1,
-14,
34,
4,
-10,
13,
31,
-45,
28,
26,
-10,
87,
33,
90,
28,
-21,
-15,
26,
-18,
-16,
-21,
-37,
41,
-24,
62,
-59,
-13,
-17,
62,
-51,
-32,
20,
-9,
2,
-64,
43,
44,
-11,
7,
9,
0,
2,
-34,
45,
21,
-89,
20,
0,
-4,
-35,
6,
-28,
15,
-1,
-35,
-36,
97,
-3,
40,
-14,
-21,
-10,
-4,
-8,
17,
-100,
-37,
6,
-39,
-9,
29,
7,
20,
37,
19,
-4,
-21,
-20,
18,
2,
-9,
35,
-24,
34
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
George E. Beach made entry upon 160 acres of land in Lewis and Clark county under the homestead laws of the United ■States, and on July 17, 1920, a patent was issued to him. In February, 1921, an execution was issued upon a judgment obtained by W. F. Karbel against Beach in an action upon a note executed by Beach in 1918, and the sheriff assumed to levy the execution upon the land embraced in Beach’s homestead entry and thereafter assumed to sell the land at public auction. The Rocky Mountain Security Company was the successful bidder, and to it the sheriff delivered a certificate of sale. About the same time the Flatow Mercantile Company commenced an action to recover upon a debt contracted by Beach during 1918, and caused a writ of attachment to issue, which the sheriff assumed to levy upon the same land. Later the Mercantile Company recovered a judgment for the amount of its claim. In December, 1921, Beach conveyed the land to F. W. Mettler, who conveyed it to Anna E. Mettler, and since then she has been and now is the owner. This action was instituted by Mrs. Mettler to quiet the title to the land and to secure an injunction restraining the sheriff from issuing a deed to the holder of the certificate of sale. The defendants answered jointly, and upon the complaint and that answer the trial court granted a motion for judgment in favor of the plaintiff, and the defendants appealed from the judgment entered in pursuance of the order.
It is conceded that the pleadings do not raise any material issue of fact; but defendants contend that the judgment should have been in their favor.
Each of the debts upon which Beach was sued was contracted prior to the time patent was issued to him, and the only property sought to be subjected to the payment of those debts is the land embraced in his homestead entry. Section 2296, United States Revised Statutes (U. S. Comp. Stats., sec. 4551), provides that land acquired under the homestead laws of the United States shall not in any event become liable to the satisfaction of any debt contracted prior to the issuing of patent therefor. In construing this statute in the light of its history and purpose, the courts have generally held that the words “any debt” refer to general contract debts, as to which a specific lien has not been voluntarily imposed upon the land by the homestead entryman himself. In other words, the statute has been construed to permit a homestead entryman to give a valid mortgage upon his claim before patent issues, if he acts in good faith and without design to evade the restrictions imposed by section 2291, United States Revised Statutes (U. S. Comp. Stats., sec. 4532).. These decisions proceed upon the theory that section 2296 was enacted in the interest of the entryman and that it was not intended to restrict his right to raise funds to complete his entry, by impressing a lien upon the land by his own voluntary act, but was intended to secure the land against seizure for the compulsory payment of his pre-existing debts, whether such debts resulted from his improvidence or misfortune. (Stark v. Morgan, 73 Kan. 453, 9 Ann. Cas. 930, 6 L. R. A. (n. s.) 934, 85 Pac. 567; Klempp v. Northrop, 137 Cal. 414, 70 Pac. 284; Weber v. Laidler, 26 Wash. 144, 90 Am. St. Rep. 726, 66 Pac. 400.) That particular construction aside, the courts have uniformly held that section 2296 means just what it says: That land acquired under the homestead laws of the United States shall not in any event become liable to the satisfaction of any debt contracted by the entryman prior to the issuing of patent therefor.
Counsel for defendants contend that section 2296 is an exemption statute, that the right or privilege granted by it may be waived, that in this instance Beach waived such right or privilege, and that neither he nor his successor in interest may now assert it. In some of the states, local exemption statutes are held to confer a right; in others, a bare personal privilege. In Mennell v. Wells, 51 Mont. 141, 149 Pac. 954, this court held that our exemption statutes confer a right, as distinguished from a personal privilege. But these decisions are entirely beside the question, for section 2296 is not an exemption statute within the ordinary meaning of those terms. It was not enacted in pursuance of the police power, as are exemption statutes, but by virtue of the power conferred upon the Congress to dispose of the public lands. Instead of conferring upon the entryman a mere personal right or privilege, it attaches a condition to the grant of the land itself, and everyone who receives a patent under its provisions takes the land subject to that condition in the grant (First State Bank v. Bottineau County Bank, 56 Mont. 363, 8 A. L. R. 631, 185 Pac. 162), or, stated somewhat more succinctly, section 2296 means that a creditor cannot by any possible means acquire an involuntary lien upon the land embraced in a homestead entry to secure satisfaction of a debt contracted before patent issues (Gilkerson-Sloss Co. v. Forbes, 54 Ark. 148, 26 Am. St. Rep. 29,15 S. W. 191; Ash v. Ericksson, 115 Minn. 478, 132 N. W. 997); and the reason is that by the terms of the grant the Congress has placed the land beyond the reach of any legal process which might be issued for such purpose. And this condition of nonliability follows the land at all times and without reference to the question of possession or ownership, so that a bona fide purchaser holds it as free from liability for the debts of the homestead entryman contracted before patent issued, as did the entryman himself. (Russell v. Lowth, 21 Minn. 167, 18 Am. Rep. 389; Baldwin v. Boyd, 18 Neb. 444, 25 N. W. 580; Miller v. Little, 47 Cal. 348.) Since section 2296 attaches a condition to the grant, and does not confer a mere personal right or privilege upon the homestead entryman, the doctrine of waiver has no application to a case of this character.
Counsel for defendants cite and rely upon Doran v. Kennedy, 122 Minn. 1, 141 N. W. 851; s. c., 237 U. S. 362, 59 L. Ed. 996, 35 Sup. Ct. Rep. 615 [see, also, Rose’s U. S. Notes]. The facts in that case were that Edward 0. Norton made final proof upon his homestead entry, but died before patent actually issued. An administrator of his estate was appointed, who in due course sold the land under an order of the probate court. Doran, one of the Norton heirs, then brought suit to quiet title against Kennedy, the purchaser at the administrator’s sale, and prevailed in the lower court. On appeal the judgment was reversed. The court considered and determined three questions only: (1) That the probate court had jurisdiction to appoint the administrator; (2) that the land became a part of the Norton estate, and subject to the jurisdiction of the probate court; and (3) that the order of the probate court (a court of general jurisdiction in Minnesota) directing a sale of the land was not open to the collateral attack which was made upon it, but that the remedy was by an appeal from the order directing the sale. In the course of the opinion the court said: “A person entitled to exemption under the federal law may waive it by his own voluntary act, such as by giving a mortgage. He may also waive his exemption by acquiescing in a sale of the land to pay debts from which it is in fact exempt.” Since there was not any question of waiver involved, the language quoted would appear to be dictum, but in any event the Minnesota court apparently treats section 2296 as an exemption statute merely, and with that theory we do not agree.
The defendants further undertook to plead an estoppel. They alleged, in substance, that on the date of the sale under the Karbel execution Beach made application to the court to set aside the judgment and stay the execution, but not upon the ground that the property was not liable to seizure in satisfaction of his pre-existing debt; that he stood by while the property was being offered for sale, and never notified the defendants or any of them that he claimed exemption; and that in May, 1921, he wrote a letter to the Flatow Mei’cantile Company, which is set forth in full. By reason of these facts it is claimed that Beach and his successors in interest are estopped to assert that the land is not liable to seizure and sale in satisfaction of debts contracted by Beach before patent issued to him.
To constitute an estoppel by silence or acquiescence, it must appear that the party to be estopped was bound in equity and good conscience to speak; that the party claiming the estoppel relied upon the acquiescence and was misled thereby to change his position to his prejudice. The land sought to be seized and sold in satisfaction of the Karbel judgment constituted Beach’s homestead entry. The record of his patent disclosed that fact, and the purchaser was bound to take notice. Since the land was beyond the reach of execution, Beach was not called upon to say or do anything respecting the proceedings which could not prejudice his rights or inure to the benefit of the purchaser. (Clark v. Bayley, 5 Or. 343.)
It is not alleged that the Rocky Mountain Security Company purchased upon the faith of Beach’s apparent acquiescence; hence there was not any estoppel in favor of that defendant. (Yellowstone County v. First Trust & Sav. Bank, 46 Mont. 439, 128 Pac. 596.)
The letter written by Beach was addressed to and affected the interests of the Flatow Mercantile Company only, and was not written until long after the pretended sale under the Karbel execution. Assuming for the purposes of this appeal only that by reason of the matters stated in that letter Beach should be estopped to claim that the land is not subject to the satisfaction of the Mercantile Company’s judgment, it is elementary that neither the Rocky Mountain Security Company nor the sheriff can take advantage of the defense. In Tatem v. Eglanol Mining Co., 45 Mont. 367, 123 Pac. 28, this court stated the general rule of law applicable: “It follows, from the very principle on which the whole doctrine of estoppels rests, that they operate neither in favor of nor against strangers, but affect only the parties thereto and their privies, either in blood, in estate, or in law, and hence a stranger can neither take advantage of, nor be bound by, an estoppel. This principle applies equally by deed, by record, and in pais.” The rule is equally well established that where several defendants join in pleading a special defense which is available to one of them only, the plea is bad as to all. (Whitcomb v. Hardy, 68 Minn. 265, 71 N. W. 263; McCreary v. Jones, 96 Ala. 592, 11 South. 600; Fairbanks v. Warrum, 56 Ind. App. 337, 104 N. E. 983, 1141; Clark v. Lathrop, 33 Vt. 1401; Shannon v. Comstock, 21 Wend. (N. Y.) 457, 34 Am. Dec. 262; Deitsch v. Wiggins, 1 Colo. 299; Pomeroy’s Code Remedies, 4th ed., sec. 497; 1 Ency. Pl. & Pr., 861; 31 Cyc. 138; 21 R. C. L., p. 472.)
Our Codes enumerate the property exempt from execution, including the homestead selected as therein provided, and fasten the lien of a duly docketed judgment upon all real property of the judgment debtor not exempt, and declare that upon a sale of real estate under execution the purchaser is substituted to and acquires the right, title and interest of the judgment debtor thereto; -but these statutes do not refer to lands acquired under the homestead laws of the United States, when such lands are sought to be subjected to the payment of the debts of the homestead entryman contracted prior to the issuing of patent, for it is beyond the power of our state legislature to change the rule of nonliability declared by the federal Act. (Seymour v. Sanders, Fed. Cas. No. 12,690.) If the sheriff had executed and delivered a deed to the Rocky Mountain Security Company, it would not have conveyed any right, title .or interest in the land. (Dickerson v. Bridges, 147 Mo. 235, 48 S. W. 825.)
The joint answer of the defendants does not state a defense, and the trial court properly granted the plaintiff’s motion for judgment on the pleadings.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-2,
57,
35,
-56,
-3,
5,
41,
5,
70,
16,
32,
7,
37,
21,
21,
-3,
-35,
-18,
23,
63,
1,
-45,
-22,
15,
17,
-33,
18,
24,
27,
35,
57,
50,
-27,
49,
6,
29,
-62,
-63,
44,
-23,
46,
77,
-20,
18,
40,
34,
9,
-81,
-10,
-24,
22,
-24,
21,
20,
-19,
9,
-34,
22,
-38,
-22,
-32,
-62,
-7,
1,
17,
1,
42,
0,
56,
6,
-13,
-36,
34,
-42,
11,
-38,
14,
9,
-44,
-38,
-32,
-27,
-23,
10,
-36,
-32,
2,
-31,
31,
6,
-65,
28,
31,
5,
-31,
17,
42,
-3,
-13,
8,
18,
-35,
-5,
48,
23,
0,
-61,
-7,
41,
0,
-20,
3,
-26,
-60,
-82,
0,
-19,
24,
-18,
-33,
-33,
40,
19,
-38,
-66,
-5,
-54,
-7,
-4,
-9,
-7,
13,
-15,
11,
-76,
5,
-15,
-11,
-13,
-42,
-12,
17,
18,
-35,
-2,
22,
44,
-35,
-4,
-49,
-48,
29,
60,
38,
53,
-12,
35,
5,
0,
-77,
20,
-40,
23,
-28,
19,
37,
31,
-23,
-52,
-10,
-6,
9,
-45,
13,
56,
-18,
55,
-16,
-16,
-30,
-30,
-20,
2,
40,
-14,
16,
0,
-1,
34,
5,
-42,
-14,
35,
-6,
-79,
-6,
-24,
-18,
-21,
0,
-13,
-2,
-2,
6,
3,
18,
45,
-6,
3,
8,
-16,
7,
14,
-50,
-35,
21,
-51,
-2,
-12,
20,
-9,
14,
-50,
38,
2,
-5,
59,
-43,
-18,
5,
-63,
-20,
10,
8,
-27,
14,
9,
-18,
-41,
-7,
-30,
-44,
7,
-62,
19,
-18,
21,
-32,
-9,
12,
-55,
-5,
-46,
3,
-18,
35,
-19,
-18,
-16,
-28,
4,
33,
-15,
8,
-45,
2,
-17,
-25,
0,
38,
-54,
14,
1,
36,
2,
0,
18,
34,
-18,
-36,
32,
-19,
42,
20,
-4,
5,
4,
26,
-41,
0,
1,
-13,
1,
9,
28,
41,
53,
-19,
34,
58,
-40,
-33,
13,
20,
37,
30,
-1,
-6,
3,
0,
9,
38,
6,
-58,
21,
49,
0,
-26,
53,
14,
0,
54,
8,
12,
3,
0,
-18,
-54,
-8,
58,
-28,
-52,
-6,
33,
21,
-35,
28,
21,
-13,
8,
-29,
3,
31,
23,
46,
42,
-22,
0,
-21,
36,
-25,
62,
-88,
7,
-10,
-7,
-9,
-16,
-54,
33,
12,
55,
-19,
2,
-17,
34,
-43,
-33,
-26,
3,
-14,
80,
2,
-8,
-7,
-25,
3,
26,
-34,
12,
13,
-3,
19,
47,
29,
54,
51,
-10,
-14,
-15,
-21,
-18,
-21,
37,
-48,
22,
-14,
-39,
-53,
-56,
-22,
45,
-41,
-56,
-20,
-20,
23,
-31,
-44,
-84,
22,
-65,
35,
-32,
48,
41,
17,
6,
28,
24,
-6,
-11,
-5,
19,
-26,
-60,
44,
-18,
-44,
-15,
7,
29,
22,
-36,
25,
-34,
-32,
40,
12,
65,
6,
55,
-32,
41,
17,
-37,
20,
1,
66,
-36,
24,
-23,
0,
49,
4,
28,
70,
6,
-9,
-36,
30,
31,
65,
-14,
-15,
-23,
3,
-7,
-6,
-10,
-17,
42,
75,
-25,
2,
31,
37,
34,
-52,
0,
-46,
-27,
-10,
19,
24,
-15,
-46,
21,
-22,
6,
39,
6,
20,
-7,
8,
-42,
-77,
-29,
21,
6,
10,
-32,
29,
23,
-13,
9,
34,
-5,
-16,
71,
32,
14,
-1,
22,
52,
-2,
35,
-25,
4,
47,
10,
3,
-62,
48,
-12,
-4,
3,
25,
54,
-19,
-50,
-8,
-21,
8,
-10,
1,
23,
30,
26,
-51,
-15,
2,
35,
48,
-7,
33,
0,
-24,
15,
-72,
-37,
22,
-1,
48,
0,
-8,
-47,
-7,
-4,
5,
38,
86,
-12,
-58,
22,
10,
-24,
-8,
-54,
29,
-28,
12,
-21,
-33,
5,
-29,
-46,
-25,
43,
0,
-37,
-16,
-19,
-41,
-17,
9,
-10,
54,
-11,
-1,
15,
10,
7,
-10,
-58,
-16,
4,
15,
-39,
-22,
-51,
-20,
-35,
17,
-9,
-56,
59,
-16,
20,
30,
-8,
24,
11,
29,
46,
-24,
54,
-39,
28,
-9,
-14,
21,
5,
41,
22,
12,
-95,
0,
-10,
50,
24,
-11,
-39,
26,
-26,
-18,
2,
-3,
2,
-26,
4,
1,
-56,
25,
-22,
9,
-9,
-56,
47,
-29,
-6,
59,
-26,
-16,
-5,
-8,
11,
-15,
55,
25,
38,
-38,
-7,
12,
-17,
-3,
4,
-9,
-7,
19,
39,
-45,
-1,
11,
2,
9,
54,
56,
64,
7,
34,
21,
56,
-22,
-10,
-22,
12,
-1,
0,
35,
21,
2,
-16,
20,
-9,
19,
12,
50,
-20,
-16,
40,
-20,
-27,
54,
-33,
54,
-55,
5,
5,
-6,
44,
-5,
-16,
-36,
-22,
2,
2,
-41,
-7,
-16,
-5,
-8,
-25,
-32,
16,
27,
35,
31,
-54,
29,
50,
60,
-25,
16,
-32,
5,
-19,
-16,
0,
-38,
-28,
3,
18,
60,
-25,
-19,
-2,
26,
-5,
-9,
30,
-30,
42,
19,
-15,
-24,
-64,
46,
-41,
-31,
0,
62,
11,
19,
7,
48,
-18,
-54,
-10,
-9,
-23,
15,
-1,
11,
60,
-41,
26,
-1,
33,
23,
15,
-19,
-54,
-31,
-31,
8,
1,
27,
30,
49,
-48,
-22,
-6,
7,
-40,
-19,
6,
9,
-30,
19,
4,
-47,
-22,
11,
45,
-24,
44,
15,
0,
9,
-11,
-39,
13,
-11,
16,
-11,
8,
-17,
12,
-22,
-34,
-16,
-3,
-15,
43,
49,
49,
16,
-70,
30,
12,
-27,
-56,
28,
32,
-35,
-14,
43,
39,
-23,
-51,
-37,
16,
-5,
19,
-20,
-45,
-38,
-25,
19,
9,
-10,
-11,
30,
-23,
-28,
-28,
-2,
-40,
4,
74,
9,
-9,
37,
30,
-15,
34,
19,
-26,
-9,
-13,
42,
59,
-7,
-28,
-2,
-2,
-22,
32,
58,
-20,
52,
-2,
23,
-38,
21,
19,
40,
27,
39,
-12,
-25,
-28,
36,
27,
-41,
39,
-75,
31,
-12,
-14,
21,
7,
24,
-30,
39,
46,
-1,
34,
-14,
37,
-49,
-10,
-2,
-27,
6,
-3,
-32,
-13,
29,
54,
2,
-47,
36,
-40,
-48,
-48,
-9,
0,
59,
-37,
28,
-63,
22,
-35,
5,
-31,
-7,
24,
-28,
-22,
-14,
32,
21,
-50,
-15,
29,
-8,
13,
16,
-44,
46,
43,
34,
-1,
-37,
-56,
-17,
17,
-14,
-59,
16,
-12,
-42,
13,
-4,
20,
-38,
-23,
-47,
37,
-6,
-11,
-5,
6,
-31,
22,
17,
2,
10,
9,
4,
-19,
30,
45,
52,
-10,
-57,
-11,
-33,
18,
26,
27,
43,
27,
-8,
-16,
33,
-23,
-32,
-6,
-39,
-39,
-12,
-12,
-30,
19,
-11,
12,
-95,
-41,
-61,
57,
-23,
-78,
35,
26,
49,
-19,
35,
11,
-4,
-39,
43
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
Rosemary A. Bosacker appeals from an order of the District Court of Yellowstone County wherein the Court decreed maintenance and a division of the marital property.
The parties to this action were married on October 15, 1955, in Great Falls, Montana. The marriage was dissolved by the District Court on September 26, 1977. One child of the marriage was then of legal age, and the custody of the other child was awarded to the wife with support to be paid by the husband. The issues of maintenance and division of marital property were reserved until trial. By the time of trial, the other child had reached majority.
Prior to the trial the parties had divided and distributed some of the marital property. Each party had received $6,647 from the sale of the family home. Also, each party had received $13,626 out of the proceeds from the sale of other real property. The wife received about $2,000 from a bank account, a 1973 Pontiac worth $2,400 and approximately $11,000 worth of other personal property. The District Court found that the wife had received $35,700 and the husband had received $33,824 in assets from the marriage. The husband was left the responsibility of paying for $37,571 worth of joint liabilities of the marriage.
At the time of trial the District Court held $18,500 of marital assets which had not been divided. The wife was awarded $4,500 of this and the husband was awarded the remainder plus interest accrued.
One of the daughters of the marriage received approximately $45,753 as a gift from the parties prior to the dissolution of marriage. At the trial she testified that she intended to use much of this money to provide a down payment for a house in which she and her mother could live.
The husband had worked for Greyhound Corporation fourteen and one-half years prior to the marriage and fifteen and one-half years during the marriage. At the time of trial he was receiving $389 per month from a retirement fund. At the time of trial the wife was employed by the State Liquor Store and grossed $693.33 per month. She was also awarded $ 100 per month to be paid by the husband out of his retirement money. The District Court found that with the above income and the wife’s skills as a bookkeeper, furniture finisher and store clerk that she could support herself in the community. The District Court also concluded that the property division would give over 50% of the assets minus the liabilities to the wife.
The wife presents two issues on appeal:
(1) Did the District Court err in determining the net worth of the parties?
(2) Were the findings of fact made by the District Court supported by the evidence?
The husband presents the following issue:
(1) Did the District Court err in granting maintenance to the wife?
The division of marital property pursuant to a dissolution of marriage is controlled by section 40-4-202, MCA. This Court has said on numerous occasions that the District Court is required to determine the net worth of the parties at the time of the divorce before dividing the property. Herring v. Herring (1979), 184 Mont. 353, 602 P.2d 1006; Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205, 207; Brown v. Brown (1978), 179 Mont. 417, 587 P.2d 361, 365; Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072, 1074; Martinez v. Martinez (1978), 175 Mont. 280, 573 P.2d 667.
In Martinez we said:
“Before dividing the marital property between a contesting husband and wife in a dissolution of marriage action, based on the above considerations, however, section 48-321 requires the trial judge to consider the \ . . estate, [and] liabilities ... of each of the parties . . .’ 573 P.2d at 669, 35 St.Rep. at 63-64.
In the instant case the District Court did not make a specific finding of fact as to the net worth of the marital property. It must be noted, however, that there were findings as to the value of assets which had been divided prior to trial, the value of the assets divided by the District Court following the trial and the joint liabilities of the marriage. The cumulative effect of these findings is equivalent to a finding of net worth of the parties at the time of the divorce.
The wife next contends that there are five findings of the District Court which are not supported by the evidence.
In considering the sufficiency of the evidence to support a District Court’s findings we are guided by the following language:
“We will not substitute our judgment for that of the trier of fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. Those findings will not be overturned by this Court unless there is a clear preponderance of evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings.” Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939, 945.
The wife contends that the finding of fact concerning the value of the marital estate is not supported by the evidence. In particular she disputes the value of $11,000 which pertains to certain items of personal property of the marriage which the wife received. The husband testified that he arrived at the $ 11,000 figure by adding together the prices paid for the items and deducting an amount for depreciation. The wife testified that she had several of the items appraised and that their value was “a little over $3,000.00.” The husband’s testimony constitutes sufficient evidence to support the District Court’s finding that these assets are worth $11,000. As a consequence, there was no abuse of discretion.
The wife next contends that there was not sufficient evidence to support the finding that the daughter, Kaye Bosacker, in tended to use the $45,753 gift to provide her mother with a place to live. During the trial, Kaye Bosacker testified as follows:
“Q. What do you intend to do with this $45,753.00, Kaye? A. I would like to use it as a down payment on a home, because my mother and I are now living in a duplex, and I want a home badly, and it would make us a nice down payment.
“Q. And would you let your mother live in your house with you? A. Yes, the house would be in my name, and then after she died then the house would still remain mine.”
Given this testimony, there was no abuse of discretion in making the above finding.
The wife next contends that there is insufficient evidence to support the finding concerning the total joint liabilities to be paid by the husband. In particular the wife objects to the inclusion of $10,000 worth of lumber used in building a house as a liability. The husband presented a list of liabilities to the District Court which detailed the debts of the parties. This list of liabilities totals $37,541.74. This is the amount found by the District Court to be the total liabilities of the parties. The only item on this list which refers to lumber is a debt of $773.16. There is no mention of a $10,000 liability for lumber. The $773.16 figure is supported by a check which the husband had written to a lumber company. Under such circumstances, there is substantial evidence to support the finding.
The wife next contends that the District Court erred in finding that the property division resulted in her receiving “over fifty percent (50%) of the assets minus the liabilities.” The District Court found that the wife received approximately $35,700 prior to the trial and the husband received approximately $33,824. In addition, there was $18,500 to be divided by the Court of which the wife received $4,500. There were liabilities of $37,571 resulting in a net estate of $50,453. Of this the wife received approximately $40,200. The District Court was justified in finding that the wife received over 50% of the net assets.
The wife next contends that the District Court erred in finding that the wife shall have “sufficient income ... to support herself.” We agree with the District Court. The wife is working and bringing home a salary. She is to receive $ 100 per month from the husband. She has no minor children to support and apparently her housing needs will be supplied by her daughter. Given these facts it was not an abuse of discretion for the District Court to find that the wife will be able to support herself.
The wife next contends that the District Court abused its discretion in awarding her only $4,500 out of the $18,500 cash on hand. Given the manner in which the other property was divided and the fact that the husband must pay the liabilities, the District Court did not abuse its discretion in so dividing this money.
Finally, the husband contends that the District Court erred in awarding the wife $ 100 maintenance per month. Pursuant to section 40-4-203, MCA, such an award is well within the District Court’s discretion. We find no error in the award of maintenance to the wife.
Affirmed.
MR. JUSTICES DALY, HARRISON, SHEA and SHEEHY concur.
|
[
-16,
16,
-21,
-3,
-27,
-33,
-5,
35,
27,
-38,
-39,
10,
47,
-2,
0,
-25,
-49,
-52,
20,
1,
-23,
-38,
-46,
15,
24,
54,
-5,
9,
2,
-7,
10,
4,
3,
-17,
-6,
41,
-13,
11,
-19,
-33,
14,
-17,
-18,
-1,
-18,
40,
50,
-41,
-37,
17,
-30,
-49,
38,
-41,
92,
-1,
-3,
11,
-46,
24,
35,
5,
5,
33,
39,
1,
57,
19,
0,
-58,
-16,
15,
-43,
-42,
18,
-23,
39,
7,
-26,
45,
19,
-44,
-11,
-1,
-31,
-33,
-13,
38,
-5,
5,
-72,
28,
20,
55,
-1,
0,
-9,
16,
1,
41,
-50,
-23,
5,
62,
-17,
-38,
9,
1,
51,
5,
14,
-2,
45,
1,
39,
60,
-23,
-16,
-19,
-16,
12,
43,
-14,
-5,
56,
-10,
-16,
39,
33,
-49,
-15,
7,
-27,
-30,
5,
-26,
0,
-22,
-18,
-18,
60,
-52,
40,
-30,
-8,
31,
-27,
-28,
6,
-33,
-6,
-19,
41,
55,
67,
-57,
-47,
-5,
37,
-50,
-21,
-47,
-34,
4,
-18,
9,
35,
38,
-4,
12,
41,
22,
-41,
0,
48,
11,
-3,
-39,
-22,
46,
12,
36,
-35,
-2,
-33,
-6,
13,
0,
-20,
-44,
-19,
-26,
0,
-30,
0,
19,
83,
43,
-33,
11,
38,
-12,
27,
69,
0,
18,
6,
8,
-5,
-21,
1,
-21,
45,
-12,
-29,
8,
-36,
-10,
-29,
-28,
57,
-12,
2,
5,
-34,
-6,
-2,
-21,
-17,
-26,
-41,
49,
28,
-9,
-7,
26,
-12,
-10,
-53,
12,
-15,
-68,
-41,
-5,
-10,
30,
-41,
2,
-19,
0,
-30,
-20,
-67,
100,
-6,
-6,
17,
29,
4,
-49,
-16,
22,
7,
0,
19,
-1,
33,
-8,
2,
3,
46,
41,
30,
-35,
-20,
-22,
1,
-12,
-25,
15,
5,
7,
-28,
34,
-26,
-15,
7,
-27,
16,
-6,
2,
-33,
16,
-11,
7,
2,
-35,
8,
0,
-29,
-35,
7,
43,
52,
13,
7,
-28,
-10,
7,
-7,
3,
-11,
-11,
-11,
22,
-7,
-64,
27,
-57,
42,
50,
7,
-9,
6,
-41,
59,
4,
-34,
-20,
2,
-32,
7,
-19,
11,
38,
-44,
22,
13,
-14,
-7,
-13,
-47,
47,
37,
-23,
-32,
19,
48,
0,
11,
-31,
55,
10,
49,
-24,
-6,
39,
1,
-38,
-21,
11,
41,
3,
-24,
-46,
25,
59,
-17,
23,
-32,
23,
17,
22,
53,
23,
20,
6,
17,
-6,
-19,
14,
-5,
10,
26,
-20,
42,
18,
-23,
-42,
-15,
25,
-26,
1,
-2,
-5,
0,
16,
-17,
-30,
5,
9,
46,
-19,
7,
-4,
-4,
6,
-51,
-79,
16,
-40,
-33,
-9,
-19,
33,
16,
8,
34,
-24,
16,
19,
30,
-19,
6,
0,
-26,
-14,
-14,
-5,
16,
2,
39,
3,
-18,
50,
-12,
-11,
36,
-57,
27,
15,
-10,
15,
40,
6,
10,
-9,
16,
21,
-4,
26,
-24,
-18,
21,
15,
-19,
21,
-38,
-25,
-11,
0,
22,
24,
-19,
27,
-8,
-9,
-6,
10,
21,
-31,
13,
29,
32,
1,
18,
-14,
-68,
12,
-40,
19,
-15,
-3,
11,
-38,
-4,
-27,
-26,
-18,
1,
49,
-3,
-47,
-10,
-6,
-30,
13,
3,
39,
-50,
-1,
-1,
43,
0,
3,
-27,
-38,
25,
-54,
57,
34,
-34,
50,
-8,
-15,
22,
27,
-13,
14,
4,
5,
39,
-17,
0,
21,
-6,
16,
0,
-4,
10,
-80,
67,
-37,
10,
-20,
-5,
36,
33,
45,
-44,
18,
-44,
-4,
-31,
0,
27,
-26,
-60,
-24,
26,
45,
-33,
-16,
43,
-3,
-5,
-7,
-6,
-21,
-23,
10,
14,
-42,
-29,
-19,
-31,
-62,
-36,
-25,
-22,
-10,
-18,
0,
6,
21,
-5,
-17,
-6,
-21,
11,
-10,
34,
-1,
-4,
-22,
-11,
36,
62,
-2,
18,
11,
6,
0,
14,
-46,
-66,
13,
22,
-89,
-9,
-60,
-17,
-5,
10,
32,
0,
20,
39,
-3,
-8,
29,
43,
49,
-27,
40,
55,
-21,
-65,
36,
-15,
11,
22,
25,
-53,
-21,
-6,
-30,
45,
22,
-31,
3,
-25,
54,
-17,
38,
35,
28,
13,
-31,
-45,
26,
21,
10,
35,
3,
-2,
-7,
-34,
7,
-33,
49,
28,
9,
-14,
46,
5,
-5,
-16,
9,
-12,
21,
12,
41,
40,
8,
8,
23,
26,
-6,
3,
-28,
-11,
-4,
35,
54,
-7,
2,
-23,
38,
-12,
-4,
1,
-35,
38,
-9,
3,
39,
-12,
25,
-16,
22,
26,
-33,
26,
-9,
11,
-18,
21,
-47,
30,
28,
22,
7,
-29,
-29,
35,
-77,
-8,
-33,
3,
-39,
16,
1,
-50,
-58,
-49,
15,
-49,
-65,
-17,
-31,
-11,
-43,
-22,
1,
-6,
23,
-19,
-18,
53,
-23,
55,
-17,
-32,
-10,
20,
-12,
30,
17,
-8,
19,
14,
16,
58,
1,
76,
35,
2,
-39,
1,
-10,
32,
22,
-42,
-8,
-20,
-11,
-13,
3,
-43,
27,
8,
-70,
42,
-3,
-37,
0,
-8,
-8,
-38,
-2,
25,
-35,
-2,
-13,
-62,
-20,
15,
-2,
-9,
19,
-9,
-14,
-9,
-8,
-34,
31,
44,
56,
50,
-19,
-16,
59,
-59,
-34,
34,
-41,
11,
0,
-51,
-24,
65,
15,
11,
17,
36,
-37,
6,
-21,
21,
-2,
5,
41,
-12,
2,
-3,
-29,
35,
-6,
-37,
13,
-34,
-5,
23,
5,
3,
-44,
9,
-33,
9,
7,
2,
41,
8,
-13,
-15,
17,
-8,
-19,
8,
10,
10,
-32,
-9,
21,
15,
40,
2,
47,
16,
42,
-12,
8,
53,
15,
31,
-25,
7,
41,
6,
0,
-18,
-29,
6,
-1,
-7,
25,
13,
7,
10,
31,
-20,
-6,
-2,
-1,
3,
39,
19,
1,
-15,
-21,
11,
-10,
-1,
-5,
25,
56,
10,
11,
-34,
-11,
-54,
-1,
-37,
-45,
18,
17,
-20,
-30,
-41,
18,
12,
-45,
-2,
39,
20,
22,
64,
48,
20,
21,
29,
-8,
3,
13,
1,
33,
-9,
-33,
1,
-10,
-35,
-21,
24,
-3,
-30,
-9,
-26,
-22,
57,
10,
40,
-35,
-12,
2,
25,
-34,
102,
-12,
-24,
3,
-21,
17,
37,
22,
36,
-5,
-38,
17,
-14,
26,
26,
-24,
60,
3,
33,
-21,
-17,
7,
-27,
-77,
12,
-14,
-55,
26,
-47,
11,
35,
-31,
-17,
44,
-78,
-19,
-35,
21,
-19,
49,
33,
2,
-12,
21,
23,
2,
2,
-4,
-17,
-30,
-21,
-60,
6,
14,
0,
24,
-11,
13,
-8,
62,
-58,
7,
-18,
15,
-62,
-24,
-36,
-17,
-28,
-26,
18,
23,
5,
8,
11,
-5,
-31,
-32,
9,
-58,
2,
9,
-34,
-5,
-23,
57,
-8
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Andrew C. Sunday appeals from convictions entered in the District Court, First Judicial District, Lewis and Clark County, on charges of deliberate homicide, burglary and theft, in violation of sections 45-5-102, 45-6-204 and 45-6-301, MCA, respectively.
Sunday came to Montana in early September 1977 with James Wilson, Donna Mitchell and Mitchell’s three year old daughter. On September 4, 1977, they stopped their car at a rest area on Highway 200, east of the continental divide near Lincoln, Montana. Desiring to “get away from all the hassles” and “live off the land”, they packed up supplies and walked into the wilderness along the continental divide.
It soon became apparent they could not go far on foot. So, in the early morning hours of September 5, 1977, Sunday and Wilson took three horses from the Evergreen resort owned and operated by Kenneth and Marion McLean. Additionally, they broke into a tack shed which was used for storing horse tack used in the McLeans’ horse-renting business. They took three saddles and three bridles. The tack shed was eight feet by twenty feet and was made out of rough lumber. It contained no living facilities.
Sunday, Wilson and the Mitchells spent the next two days riding the horses along the continental divide. On the afternoon of September 6, 1977, they saw a pickup truck rapidly approaching. They tried to escape into the trees but were cut off by the pickup. The pickup was driven by Kenneth McLean. His wife was also in the pickup. Kenneth McLean stopped the pickup about sixty-five feet from Sunday, Wilson and the Mitchells.
Kenneth McLean got out of the pickup carrying a .308 caliber bolt action revolver. His wife got out carrying a .38 caliber revolver. Sunday dismounted from his horse holding a 30.30 caliber rifle. Wilson testified Sunday asked Wilson if he wanted the privilege of shooting the McLeans. Wilson had a 22.250 caliber bolt action rifle, and Mitchell had a .410 gauge single shot shotgun.
As Kenneth McLean approached, he said, “What the God damn hell is going on? What kind of prank is this? Give us our horses, or we will shoot you.” Mrs. McLean added, “Your God damn right we will.” Immediately after his threat, McLean operated the bolt mechanism to his gun and inserted a cartridge. According to Sunday, Kenneth McLean pointed the gun directly at Sunday. Wilson and Mitchell testified the gun was pointed at the ground.
A shooting spree followed. Sunday shot Kenneth McLean in the leg. Then, Marion McLean began shooting at Sunday. Sunday returned the fire hitting Marion McLean in her abdomen and thoracic area. Sunday next approached Marion McLean. Noticing Kenneth McLean rise from the ground, Sunday turned and fired two fatal shots at Kenneth McLean. Meanwhile, Wilson who was approaching Kenneth McLean noticed Marion McLean rise. Wilson shot Marion McLean in the head killing her instantly.
Sunday then took $25 from Kenneth McLean’s wallet. Wilson took approximately $100 from Marion McLean. Sunday, Wilson and Mitchell picked up the McLeans’ weapons and left the area in the McLeans’ pickup. They were eventually arrested in Oregon.
On September 26, 1977, Sunday was charged in an amended information with two counts of deliberate homicide, two counts of felony theft and one count of burglary.
In October 1977, Sunday gave notice of his intent to rely on self-defense. On January 9, 1978, Sunday moved for a change of venue. The motion was denied on April 12, 1978, on the ground any possible prejudice was “speculation at this point.”
On July 6, 1978, Sunday moved for permission to conduct individual voir dire of the prospective jurors. The motion was denied, but the District Court said the motion might be renewed during voir dire if necessary. Sunday renewed the motion during voir dire with respect to one prospective juror, Mrs. Garrett. The District Court again denied the motion saying it would guide Mrs. Garrett. Sunday passed the panel without challenging Mrs. Garrett for cause. Later, both the State and Sunday exercised all eight of their preemptory challenges.
In July 1978, a jury verdict was rendered finding Sunday guilty of all the charges. Sunday was sentenced to a total of 240 years in the state penitentiary.
Sunday presents eleven issues for review. These issues may be grouped as follows:
1. Whether it was error to deny Sunday’s motions for change of venue and individual voir dire of jurors;
2. Whether the State failed to prove the crimes charged against Sunday;
3. Whether the District Court failed to properly instruct the jury; and
4. Whether the sentences imposed on Sunday were erroneous.
ISSUE NO. L Change of Venue and Individual Voir Dire.
Sunday contends it was error to deny his motions for change of venue and individual voir dire. The contention is without merit.
A denial of a motion for change of venue or a motion for individual voir dire will be reversed only upon a showing of an abuse of discretion. State v. Olson (1971), 156 Mont. 339, 480 P.2d 822. Sunday has not made such a showing.
A change of venue must be based on more than an affiant’s unsupported opinions and the mere fact of pretrial publicity. The published accounts must be so passionate as to excite undue prejudice, to the extent of rendering it impossible for the accused to have a jury free from prejudice. State v. Corliss (1967), 150 Mont. 40, 49, 430 P.2d 632, 637.
Sunday’s motion for change of venue was not adequately supported. The motion was supported by the single affidavit of defense counsel. The affidavit stated defense counsel believed Sunday could not receive a fair trial due to inflammatory county-wide publicity. The affidavit was unsupported by any evidence of the number or inflammatory nature of the publications. Also, Sunday never renewed his motion for a change of venue at any time during or after jury selection.
Sunday also did not adequately support his motion for individual voir dire. Sunday never demonstrated the extent of the pretrial publicity, its inflammatory nature or whether it had any prejudicial effect on the prospective jurors. Moreover, Sunday passed the jury panel, including Mrs. Garrett, the main object of Sunday’s concern, without challenging any potential juror for cause due to bias or prejudice. See, section 46-16-304(2)(j), MCA.
ISSUE NO. 2: Failure to Prove the Crimes Charged.
Sunday maintains the State failed to prove Sunday committed burglary since the tack shed is not an “occupied structure” as required by section 45-6-204, MCA.
A fundamental rule of statutory construction is the intent of the legislature controls. Dodd v. City of East Helena (1979), 180 Mont. 518, 591 P.2d 241, 243. In construing legislative intent, this Court construes criminal statutes according to the fair import of their terms with a view to effect their object and to promote justice. State v. Shannon (1976), 171 Mont. 25, 28, 554 P.2d 743, 744.
The intent of the burglary statute was to prohibit wrongful intrusions into those places where the threat to people was most alarming. State v. Shannon, supra. Thus, in defining “occupied structure”, the legislature included those places where the chance of human confrontation was most likely, in those places suitable “for human occupancy or night lodging” and “for carrying on business.” Section 45-2-101(34), MCA.
The McLeans’ tack shed was a structure suitable for carrying on business and was so used by the McLeans. The McLeans operated a horse rental business. Horse tack was an integral part of that business, and the horse tack was stored in the tack shed. Moreover, both the guests and employees of the Evergreen Resort would enter the shed frequently and at irregular hours.
Count V of the amended information charged Sunday with the felony theft of (1) a 1966 International pickup truck, (2) a .308 caliber rifle, (3) a .38 caliber Smith and Wesson pistol, (4) a gunbelt and holster, and, (5) $150 in cash. Sunday contends the State failed to prove the value of the personalty listed in count V exceeded $150 as is required by section 45-6-301, MCA, the theft statute. We agree.
Under our felony theft statute, the State must prove beyond a reasonable doubt that the value of the personalty allegedly taken exceeds $150. At trial, the only value testimony was given by Sunday and Mitchell and related to the amount of cash taken from the McLeans. Sunday testified he took $20 to $25 from Kenneth McLean’s wallet. Mitchell testified Wilson took about $100 from Marion McLean’s purse.
The State asserts Sunday waived any objection to the State’s failure to prove value by not raising the issue prior to the entry of the judgment of conviction. The State’s assertion is without merit. Under the facts here, value is an essential element of the crime charged, and such an error may be raised at any time.
The State next asks this Court to take judicial notice of the fact that the aggregate value of the personalty involved here is greater than $150. We will not do this.
Rule 201(b), M.R.Evid., sets forth the kinds of facts which may be judicially noticed. That provision reads as follows:
“. . . A fact to be judicially noticed must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”
We will not go beyond the scope of this provision and take judicial notice of a basic element of the crime charged not otherwise proved.
It is also noteworthy that the jury was not properly instructed as to value. None of the instructions concerning felony theft mentioned that a value greater than $ 150 is necessary for a felony theft conviction. Thus, the jury reached its decision on the felony theft charge without even considering a fundamental element of the crime charged. We will not presume the jury knew about this element of felony theft.
Sunday next contends the convictions for the deliberate homicides of Kenneth and Marion McLean are not supported by the evidence. More specifically, Sunday maintains the evidence estab lishes the homicides were justified, or at most, Sunday could be convicted of mitigated deliberate homicide.
Whether Sunday was justified in killing the McLeans and whether Sunday acted under extreme emotional distress were questions of fact for the jury. State v. Larson (1978), 175 Mont. 395, 574 P.2d 266, 269. Upon appeal, this Court will not substitute its judgment for that of the jury if the verdict is supported by substantial evidence. The evidence must be viewed in light most favorable to the State. McGuinn v. State (1978), 177 Mont. 215, 581 P.2d 417, 419.
The verdicts of deliberate homicide are supported by substantial evidence which if believed by the jury would result in convictions for deliberate homicide. Both Wilson and Mitchell testified Kenneth McLean did not point his rifle at Sunday. In addition, Wilson testified Sunday asked Wilson if he wanted the privilege of shooting the McLeans. Sunday’s own testimony corroborates the sequence of events as described by Wilson and Mitchell.
Sunday also contends the evidence clearly shows Wilson’s actions were the sole intervening cause of Marion McLean’s death. Therefore, according to Sunday, it was error to submit count II of the amended information, the deliberate homicide of Marion McLean, to the jury. We do not agree.
Sunday shot Marion McLean in her abdomen and thoracic area. Shorthly thereafter, Wilson shot Marion McLean in the head killing her instantly. A pathologist testified the wound inflicted by Sunday would have caused Marion McLean’s death within minutes had she not been shot by Wilson.
The principal end of the law of homicide is to protect human life by preventing behavior which can cause death. The evidence adduced at trial clearly shows Sunday engaged in conduct which was likely to cause the death of a human being. Moreover, Sunday’s situation would be no different if Marion McLean had been struck by a bolt of lightning rather than shot in the head by Wilson.
ISSUE NO. 3: Instructional Error.
Court’s instruction no. 16 reads as follows:
“You are instructed that a criminal homicide is deliberate homicide if:
“(1) It is committed purposely or knowingly; or
“(2) It is committed while the offender is engaged in flight after committing or attempting to commit burglary or any other felony which involves the use or threat of physical force or violence against any individual.”
Sunday contends it was error to give the second part of the instruction concerning the felony-murder rule. According to Sunday, he was not charged under the felony-murder rule, there are no facts supporting the application of the rule, and even assuming proof of a felonious act, there was no showing of a connection between it and the McLeans’ death.
Sunday’s contention is without merit. The evidence establishes that Sunday caused the McLeans’ death while in flight after committing a burglary. Court’s instruction no. 16 paraphrases section 45-5-102, MCA, the statute defining deliberate homicide. That statute specifically covers criminal homicides committed while in flight after committing a burglary. The connection between Sunday’s felonious act and the McLean’s death was decided by the jury. As was stated in Commonwealth v. Almeida (1949), 362 Pa. 596, 68 A.2d 595, 611-612:
“. . . There can be no doubt about the ‘justice’ of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defense forces against him, the activity of which forces result in the death of a human being.”
Additionally, at trial, Sunday did not require the State to specify which theory of deliberate homicide the State was following. Nor did Sunday object to the court’s instruction no. 16 on the grounds now asserted upon appeal. This Court will not reverse the District Court’s rulings on the instructions on grounds not raised at the time the instruction was proposed. State v. Campbell (1965), 146 Mont. 251. 263. 405 P.2d 978, 987.
Sunday next contends the jury was incorrectly and incompletely instructed on the affirmative defense of self-defense. In this regard, Sunday asserts the court’s instructions (1) failed to explain self-defense as a concept of fear to be judged in light of appearances and (2) failed to explain Sunday had no duty to retreat.
In considering this issue, we will first set out the relevant law applicable to the concept of self-defense. A person is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony. Section 45-3-102, MCA. Self-defense is to be judged in terms of the apparent danger which the defendant perceived, as a reasonable person, rather than in terms of the danger actually confronting him. The belief in the necessity of using force must be reasonable, but even a mistaken belief may be reasonable. State v. Reiner (1978), 179 Mont. 239, 587 P.2d 950, 956. A defendant may stand his ground even if he reasonably believes he is in imminent danger of great bodily harm. See State v. Porter (1964), 143 Mont. 528, 391 P.2d 704.
Sunday cannot complain if these concepts were conveyed to the jury by the District Court in the body of its instructions. If so, Sunday was given ample opportunity to present his theory of defense to the jury. State v. Collins (1978), 178 Mont. 36, 582 P.2d 1179. We find such is the case here.
The jury was instructed that self-defense was a concept of fear to be judged in light of appearances even if those appearances were false. Court’s instructions no. 27 and 31 directed the jury to consider whether Sunday “reasonably believed” that force by him was necessary. These instructions do not say that reasonable belief must be founded upon subjective appearances or the danger actually confronting Sunday. State v. Reiner, supra. Similarly, instructions, like court’s instructions no. 27 and 31, which state the general law of self-defense adequately cover Montana’s “no retreat” rule. State v. Porter, supra.
District Court’s instruction no. 28 instructed the jury that Sunday had the burden of producing sufficient evidence to raise a reasonable doubt of his guilt in order to avail himself of the affirmative defense of self-defense. Sunday maintains it was error to give this instruction. We do not agree.
Sunday contends the instruction is misleading and confusing when compared with court’s instruction no. 17 which instructed the jury that the State had the burden of proving lack of justification. Sunday is barred from asserting this upon appeal as a ground for reversible error. This was not a ground of his objection at trial. State v. Campbell, supra.
Sunday next asserts that court’s instruction no. 28 is an incorrect statement of the law. The assertion is without merit.
In Montana, the defendant must present some evidence of self-defense in order to raise it as an issue unless the State’s evidence puts self-defense in issue. State v. Cooper (1979), 180 Mont. 68, 589 P.2d 133.
At trial, Wilson and Mitchell, both witnesses for the State, testified Kenneth McLean did not point his gun at Sunday. Wilson also testified that Sunday asked Wilson if he wanted the privilege of shooting the McLeans. The State did not raise the issue of self-defense by showing the totality of the circumstances surrounding the homicides including evidence which negates the application of self-defense.
Finally, Sunday contends court’s instruction no. 28 unconstitutionally shifted the burden of proving self-defense to Sunday. It did not. The absence of justification is not an element of deliberate homicide, and proving lack of justification does not serve to negate any of the facts which the State must prove beyond a reasonable doubt in order to support a conviction of deliberate homicide. Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; State v. Cooper, supra.
Court’s instruction no. 22 reads:
“You are instructed that purpose or knowledge are manifested by circumstances connected with the offense. Purpose or know ledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence.”
Sunday maintains this instruction and court’s instruction no. 23, “You are instructed that the law presumes that a person intends the ordinary consequences of his voluntary acts”, are reversible error under Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. We do not agree.
Court’s instruction no. 22 is a permissive inference. It allows, but does not require, the jury to infer ultimate facts from basic facts adduced by the State. County Court of Ulster Cty. v. Allen (1979), 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792; State v. Coleman (1979), 180 Mont. 68, 605 P.2d 1000.
Since a permissive inference is involved, Sunday must show the invalidity of the inference as applied to him. Sunday must show there is no rational way under the facts of this cause for the jury to make the connection permitted by the inference. Only then is there a risk the presumptively rational jury will use the inference to make an erroneous factual determination. County Court of Ulster Cty. v. Allen, supra. Sunday has not carried his burden upon appeal.
Similarly, it was not prejudicial error to give court’s instruction no. 23. The homicide charges against Sunday were submitted to the jury in the disjunctive, as a deliberate homicide or as a felony-murder case. Under either theory, Sandstrom v. Montana, supra, is not controlling.
A person is guilty of deliberate homicide if it is committed “purposely” or “knowingly.” Section 45-5-102, MCA. A person acts “purposely” with regard to any offense if it is his conscious object (1) to engage in that conduct defined as the offense or (2) to cause a result which is the offense. Section 45-2-101(52), MCA. Applying this definition of purpose to this cause, if the jury found that Sunday consciously sought to kill or consciously conducted himself to cause a death as a result of his conduct, the elements of intent and act are merged in his conduct once purpose is shown. Thus, under the criminal code, proof that the defendant acted “purposely” is sufficient proof that he acted “knowingly”. Section 45-2-102, MCA.
A person is shown to have acted “knowingly” with respect to deliberate homicide upon proof of either of two mental elements: (1) when he is aware of his conduct which constitutes an offense; or, (2) when he is aware that it is highly probable that a death of a human being will be the result of his conduct. Section 45-2-101(27), MCA. As we noted in State v. Coleman, 605 P.2d 1000, 36 St.Rep. at 2242, it is his awareness either of his conduct or the highly probable result of his conduct that must be proved beyond a reasonable doubt to establish his “knowledge” as a mental element of the crime. But we repeat, if purpose is shown beyond a reasonable doubt, knowledge is thereby established under the code.
Therefore, in simplest terms, the burden of the State here under the charge of deliberate homicide was to prove Sunday by a voluntary act caused the death of a human being while having the mental state described as “purposely” or “knowingly”. Those are the material elements of a deliberate homicide under the Montana Criminal Code of 1973.
Here, the State proved beyond a reasonable doubt that Sunday purposely shot the McLeans. Sunday testified he fired the first shot at Kenneth McLean. In fact, it was not shown that Kenneth McLean even fired a shot. True, Sunday contends he acted purposely but that he was justified in defending himself. However, by Sunday’s own admission, it was Sunday’s conscious object to shoot the McLeans or to cause that result. Section 45-2-101(52), MCA. Therefore, the jury was never called upon to decide as an issue of fact whether Sunday acted purposely or knowingly to cause the death of a human being. Sunday’s own testimony admitted that. Rather, the issue became whether Sunday’s purposeful act was a justified use of force, self-defense. Section 45-3-102, MCA.
Court’s instruction no. 23 was therefore superfluous. Sunday intended by his conduct to do the McLeans grave bodily harm. That was the ordinary consequence of his voluntary acts. The objected to instruction did not relate to a material issue in the cause and, at most, was harmless error. Such error is not cause for reversal. Section 46-20-701, MCA.
We are aware of the apparently conflicting opinion of the Court where self-defense is an issue, and the Sandstrom instruction is involved, in Holloway v. McElroy (D.Ga.1979), 474 F.Supp. 1363, 1368. The rationale of that Court is not explained. We find in this case that self-defense admits a purposeful act, but claims the purposeful act was justified.
Likewise, court’s instruction no. 23 was not prejudicial error under the felony-murder theory submitted to the jury.
The felony-murder rule is embodied in the definition of deliberate homicide in the Montana Criminal Code of 1973. Section 45-5-102, MCA. Intent as such is not an element under the felony-murder rule.
The felony-murder statute requires proof of the following combination of elements:
1. The intent to commit a felony, burglary here;
2. An unintentional death caused by the attempt, perpetration or attempted escape of a felon; and
3. The death must be an outgrowth of the felony itself and related to the burglary by an unbroken chain of causation. Bassiouni, Substantive Criminal Law (1978), at 250, 251.
Earlier in this opinion, we affirmed the charge of burglary against Sunday. His intent to' commit the burglary was proven by direct evidence and by Sunday’s own admissions. Therefore, “purpose” as an element of that crime was established. Intent was no longer an issue under the felony-murder statute once it was shown by the evidence that Sunday committed a burglary and Sunday killed the McLeans while in flight after the commission of the burglary. It was the commission of the burglary which gave rise to the dangerous circumstances which invited the McLeans deaths. The intent to commit the burglary was a sufficiently supplied in tent for all the consequences including the homicides arising therefrom. Bassiouni, supra, at 247.
If the jury applied the felony-murder theory here, the court’s instruction no. 23 was superfluous because the jury had no issue of intent to decide. Intent was not an element of the deliberate homicides, and intent was not an issue before the jury. The instruction played no part in the jury’s deliberations as to the deliberate homicides.
ISSUE NO. 4: Sentences.
Upon his convictions, Sunday was sentenced to serve 100 years for each count of deliberate homicide, 10 years for each theft count and 20 years for burglary. The terms are to be served consecutively, 240 years total, and Sunday is ineligible for parole or participation in the work furlough program.
Wilson pleaded guilty to two counts of deliberate homicide and to two counts of theft. He received a sentence of 100 years for each deliberate homicide count and 10 years on each theft count. The sentences are to be served concurrently, and while the county attorney will not recommend parole, he will not fight Wilson’s parole.
Sunday contends the District Court did not have the authority to impose a 20 year sentence for burglary. As for the-other sentences, Sunday asserts they are unconscionable and unjustified when compared to the sentences received by Wilson who was equally guilty.
■ We agree the District Court did not have the authority to sentence Sunday to 20 years for burglary. By statute, the maximum possible sentence for burglary is 10 years in the state penitentiary. Section 45-6-204, MCA. Accordingly, under section 46-20-703, MCA, we reduce Sunday’s sentence for burglary to 10 years in the state penitentiary with the other provisions of the sentence to remain unchanged.
Likewise, also under section 46-20-703, MCA, we reverse the 10 year sentence Sunday received upon his conviction for felony theft as charged in count V of the amended information. The State failed to prove an essential element of felony theft in count V that the property taken exceeded $ 150 in value.
With regard to the terms of the other sentences imposed upon Sunday, we find the District Court did not abuse its discretion. All the other sentences are within the maximum allowed by law for each offense. Similarly, the other provisions of the sentence, no parole and no work furlough, are also proper under the applicable statute. Section 46-18-202, MCA. The District Court determined that the restrictions were necessary for the protection of society because of Sunday’s extensive criminal record, his uncaring attitude and the malevolent way in which he killed the McLeans.
This Court will not second guess the trial judge, who after observing the demeanor and attitude of the defendant, uses his discretion in fixing punishment. Matter of Jones (1978), 176 Mont. 412, 578 P.2d 1150, 1155.
Accordingly, Sunday’s conviction for felony theft as charged in count V of the amended information and the sentence imposed thereon are reversed. The count V felony theft charge is dismissed. The twenty year sentence for burglary is reduced to ten years in the state penitentiary to be served under the other conditions laid down by the District Court. The burglary conviction is otherwise affirmed. Sunday’s other convictions and the sentences imposed thereon are affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and HARRISON concur.
MR. JUSTICE SHEA dissents and will file a written dissent later.
|
[
35,
50,
17,
16,
0,
-15,
-24,
74,
0,
0,
30,
-14,
-33,
21,
-4,
-22,
-32,
-39,
-8,
19,
-44,
-44,
-59,
4,
22,
-38,
-34,
-22,
-71,
19,
89,
37,
37,
-68,
70,
5,
9,
31,
-17,
42,
-47,
20,
-28,
18,
39,
-58,
37,
-3,
-38,
27,
98,
-16,
32,
-6,
-14,
12,
-35,
-5,
-4,
-6,
23,
-54,
12,
-3,
-34,
-78,
-8,
-2,
10,
66,
49,
-27,
-14,
37,
-15,
-22,
5,
-8,
0,
31,
-1,
7,
3,
-8,
-20,
-57,
-5,
-4,
14,
-2,
17,
-3,
-41,
12,
22,
-50,
3,
-9,
-39,
-11,
-28,
-76,
-5,
-25,
-42,
3,
-45,
-28,
53,
3,
-13,
33,
75,
-23,
27,
-33,
-22,
23,
-1,
37,
0,
-62,
-3,
-17,
-12,
-69,
-2,
46,
9,
13,
0,
-13,
20,
-21,
-72,
-16,
-41,
-28,
0,
-63,
37,
29,
23,
-31,
-8,
42,
-38,
23,
7,
45,
-30,
-5,
-9,
23,
47,
-49,
-9,
22,
-8,
43,
3,
-9,
3,
-21,
-63,
8,
-27,
-52,
-47,
-4,
-18,
-37,
-29,
10,
78,
17,
-44,
36,
37,
-14,
-13,
42,
6,
-28,
21,
9,
-11,
70,
-39,
47,
-16,
-10,
29,
-40,
19,
-20,
-5,
-37,
-19,
21,
35,
26,
5,
15,
-22,
-19,
42,
43,
42,
-35,
-52,
-2,
-9,
16,
-21,
1,
-38,
-31,
15,
-70,
7,
11,
-14,
40,
-8,
-16,
-18,
10,
-36,
-24,
53,
18,
-6,
14,
6,
-75,
-26,
-49,
-64,
11,
7,
-93,
0,
-43,
63,
87,
23,
-26,
24,
8,
-18,
-39,
-9,
58,
-9,
41,
51,
-10,
18,
28,
-72,
-26,
19,
97,
19,
33,
-37,
-37,
-23,
4,
78,
2,
36,
16,
-6,
-28,
52,
22,
-9,
-33,
92,
35,
-22,
15,
1,
-29,
-19,
-14,
-37,
4,
8,
-48,
52,
18,
-11,
-62,
21,
-8,
22,
-65,
62,
62,
-3,
-27,
-12,
-3,
4,
-19,
-32,
-19,
-35,
47,
-23,
18,
19,
3,
25,
5,
41,
39,
-21,
-37,
48,
12,
-2,
54,
-29,
51,
-12,
38,
36,
0,
-8,
40,
-11,
-31,
-48,
-15,
-49,
44,
-67,
-3,
-4,
1,
-49,
22,
34,
35,
-49,
1,
-21,
-15,
-16,
-29,
29,
-30,
11,
-8,
3,
-100,
44,
1,
-69,
51,
23,
-20,
-3,
-33,
-17,
-15,
-2,
-8,
63,
9,
96,
0,
14,
20,
-17,
4,
27,
-23,
19,
20,
-7,
-25,
-32,
-41,
10,
64,
22,
11,
5,
-6,
70,
-96,
14,
-23,
18,
-27,
-56,
25,
11,
-15,
2,
-14,
-4,
40,
-5,
-75,
14,
-13,
0,
1,
13,
8,
-53,
27,
-70,
26,
78,
-4,
28,
-59,
29,
-35,
-47,
-6,
4,
-54,
57,
6,
-80,
3,
-1,
-6,
-30,
22,
-8,
5,
-14,
-84,
48,
56,
3,
30,
7,
-30,
20,
-21,
23,
-15,
-28,
-68,
-16,
17,
26,
0,
-9,
22,
28,
-16,
12,
-18,
66,
-27,
5,
-54,
15,
19,
65,
8,
2,
31,
-36,
-66,
-18,
2,
-22,
-17,
-49,
-46,
-24,
39,
10,
-80,
1,
-20,
69,
86,
31,
41,
-1,
-34,
-5,
33,
26,
2,
15,
-5,
-61,
-3,
48,
37,
21,
39,
32,
-1,
-38,
75,
58,
19,
-32,
-2,
-61,
27,
8,
-27,
24,
32,
27,
33,
22,
-7,
-13,
-17,
-1,
-29,
6,
3,
-38,
27,
28,
5,
34,
22,
24,
22,
49,
-28,
87,
-35,
5,
-51,
-7,
7,
41,
-46,
0,
-18,
52,
-28,
27,
-46,
-6,
24,
-44,
-21,
-70,
-33,
6,
6,
39,
-39,
34,
-4,
-8,
53,
26,
-49,
-4,
16,
-31,
29,
56,
-5,
-9,
14,
-61,
74,
89,
46,
-21,
79,
2,
-18,
30,
17,
-33,
44,
-34,
-40,
42,
43,
-52,
-21,
2,
1,
-10,
22,
-15,
-28,
9,
83,
47,
19,
-9,
-18,
-24,
26,
-15,
37,
18,
-6,
-36,
34,
-90,
4,
10,
-52,
-1,
-61,
-22,
23,
-1,
-12,
-1,
61,
62,
-18,
-90,
0,
-3,
35,
-11,
5,
28,
-29,
-52,
50,
-23,
-6,
-29,
-28,
0,
-11,
-60,
-19,
22,
-63,
-21,
-11,
-24,
-33,
-1,
19,
0,
18,
9,
18,
44,
58,
6,
-29,
-2,
0,
-16,
4,
-46,
62,
70,
11,
-29,
-41,
-16,
-5,
44,
-63,
-9,
-3,
70,
6,
39,
-4,
11,
58,
-34,
-42,
-9,
26,
-46,
-7,
48,
49,
-17,
-13,
-30,
-32,
-71,
-19,
42,
10,
26,
-1,
35,
39,
31,
-61,
-33,
-4,
-45,
42,
8,
10,
-9,
-31,
-2,
31,
-38,
12,
9,
19,
11,
23,
18,
11,
45,
-23,
19,
29,
50,
40,
-34,
-10,
7,
51,
-32,
49,
-15,
-18,
-39,
-44,
24,
61,
23,
-18,
-6,
-48,
45,
-46,
-1,
14,
20,
19,
-19,
-23,
2,
-18,
10,
-37,
63,
-21,
-42,
-11,
8,
-35,
20,
4,
43,
-59,
42,
6,
-63,
31,
-37,
-10,
-18,
-10,
17,
47,
31,
47,
-29,
-56,
-3,
-2,
-67,
33,
64,
-32,
45,
25,
-9,
-21,
-32,
-2,
0,
36,
-25,
65,
-46,
18,
-7,
29,
3,
-53,
27,
11,
-44,
35,
5,
20,
-11,
-33,
-14,
9,
16,
25,
5,
12,
-3,
54,
63,
-50,
54,
16,
-29,
-33,
-45,
14,
-66,
-15,
-12,
-10,
41,
-36,
9,
-32,
-28,
78,
-11,
-2,
42,
-11,
50,
-24,
51,
-32,
27,
26,
-29,
-7,
-32,
-8,
-23,
-34,
-20,
-12,
-26,
25,
-30,
-89,
8,
-20,
-17,
-68,
99,
27,
-5,
58,
34,
-53,
33,
56,
-36,
10,
-2,
-26,
-13,
-1,
40,
27,
-6,
66,
38,
-83,
-2,
9,
-2,
-11,
-31,
-59,
-12,
-5,
32,
0,
-17,
10,
17,
-21,
29,
28,
-42,
4,
78,
-68,
7,
52,
49,
-23,
0,
-42,
-24,
-10,
-1,
-4,
-51,
27,
-10,
3,
9,
8,
20,
33,
29,
-14,
-29,
-66,
33,
85,
-72,
42,
-45,
-90,
-51,
-10,
-30,
37,
65,
-28,
30,
40,
-18,
9,
68,
18,
13,
-79,
-20,
1,
26,
40,
1,
4,
34,
35,
-39,
-16,
44,
9,
-4,
-46,
19,
23,
-22,
-12,
-3,
32,
0,
-7,
-23,
-44,
-24,
-51,
52,
17,
39,
54,
93,
-21,
-7,
12,
6,
-19,
20,
-12,
45,
2,
-63,
-6,
-90,
3,
-16,
52,
55,
35,
-21,
-21,
-44,
-43,
-13,
-75,
16,
14,
-11,
29,
-6,
36,
16,
-27,
-34,
-48,
-8,
-47,
-12,
16,
41,
2,
-7,
-20,
-38,
-14,
20,
52
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This petition was filed seeking a writ of supervisory control and other appropriate relief in a cause where the District Court had issued an injunction pendente lite enjoining the relators from establishing a community residential home for developmentally disabled children. The District Court held that the community home violated restrictive covenants limiting the use of the property to single family dwellings.
This Court on December 20, 1979 ordered the parties to the cause to file briefs within twenty days, together with supporting memoranda, and stayed further proceedings pending the receipt of said briefs and memoranda. In addition, permission was granted for an amicus brief by the Developmental Disabilities/Montana Advocacy Program. All parties having filed briefs within the time specified, this Court accepts jurisdiction of the cause and considers the issues raised on briefs without oral argument.
The relator, Region II, purchased a home in the Sunrise Homes Subdivision of Great Falls, Montana. It was relator’s intention to use the home as a residence for five developmentally disabled children. The children were selected for placement in this home on the basis of their immediate need for a less restrictive environment, current inappropriate placement, and developmental retardation due to their current placement. Their individual circumstances were set forth in the application for the writ.
The children were to reside in the home with fulltime, paid houseparents and would be taught various personal hygiene and domestic skills in the home. The children were also to attend the Great Falls public schools in the daytime.
The landowners who are respondents herein objected both to the use of the home as a group home for the developmentally disabled and to a group of unrelated individuals residing in one house in the Subdivision. Their objections were premised on the Subdivision’s protective covenants.
In their petition, the relators noted that they had already incurred substantial costs in purchasing the property and paying for its upkeep and monthly financing. Relators also alleged that they stand to lose income and grants which are dependent upon the immediate use of the home as a group home.
Relators noted that the injunction not only has prevented Region II’s use of a home and the movement of five children to the home, but it has also prevented the movement of children in a more restrictive environment, such as Roulder River School, into the community placement which would be vacated by movement of the five children into the Subdivision group home.
Respondent landowners have neither alleged nor testified as to any specific damages that they might suffer if the home were used as a group home. They rely entirely upon the protective covenants of their deeds that state that the homes in the area shall be composed of “one unit single family dwellings.”
We find that the District Court improperly issued an injunction pendente lite on the basis of Montana’s Constitution, statutes, and caselaw.
Montana’s 1972 Constitution provides:
“The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or misfortune, may have need for the aid of society.” Article XII, section 3(3).
Pursuant to this constitutional mandate, the Montana Legislature passed legislation implementing care for the needs of its developmentally disabled citizens at a community level rather than in institutions. Section 53-20-301, MCA provides:
“PURPOSE. The legislature, in recognition of the widespread and various needs of developmentally disabled persons and of the desirability of meeting these needs on the community level to the fullest extent possible and in order to reduce the need for care in existing state institutions, establishes by this part a community developmentally disabled home program to provide facilities and services for training and treatment of the developmentally disabled in family-oriented residences and establishes a program to provide such homes through the local non-profit corporations.”
To insure the residential nature of the facility, and to protect the residential nature of the neighborhood, the legislature in section 53-20-302, MCA limited the size of the community homes.” That section provides:
“Definition of community home — limitation on number of residents. A community home for the developmentally disabled is a family-oriented residence or home designed to provide facilities for two to eight developmentally disabled persons, established as an alternative to existing state institutions. The number of developmentally disabled persons may not exceed eight in such a community home, except that the department of social and rehabilitation services may grant written approval for more than eight but not more than twelve persons.” Section 53-20-302, MCA.
Anticipating local opposition to the implementation of these statutes, the legislature amended Montana’s laws relating to zoning by mandating that all community homes be permitted use in residential neighborhoods, including neighborhoods zoned for single family residences. Sections 76-2-313, 76-2-314, MCA. It should be noted that subsection 2 of 76-2-314 states: “The homes are permitted use in all residential zones, including but not limited to residential zones for single-family dwellings.”
This Court in State ex rel. Thelen v. Missoula (1975), 168 Mont. 375, 543 P.2d 173 interpreted the above-cited sections to permit the operation of conforming group homes in residential areas in Montana! There we noted:
“Montana’s legislature having determined that the constitutional rights of the developmentally disabled to live and develop within our community structure as a family unit, rather than that they be segregated in isolated institutions, is paramount to the zoning regulations of any city it becomes our duty to recognize and implement such legislative action.
“. . . the Montana legislature adopted a new policy as applied to the developmentally disabled in an effort to implement a new constitutional mandate, and in so doing it was furthering a permissible state objective.” Thelen, supra, 168 Mont. 382-383, 543 P.2d at 177-178.
Thelen dealt with zoning restrictions rather than with restrictive covenants. We recognize that there is authority for the statement that zoning ordinances cannot destroy, impair, abrogate or enlarge the force and effect of an existing restrictive covenant. 82 Am.Jur.2d Zoning and Planning § 4 (1976). It could be argued here that the force of the constitutional rights of developmentally disabled persons to live in a community environment, and the strong legislative policy supporting the same (see the statement of purpose in the legislation authorizing community level homes, section 53-20-301, MCA), would overcome a conflicting restrictive covenant in a case like this. It is not necessary, however, for us to consider such an argument, because here we find a use entirely compatible with and in conformity with the spirit, intent and language of the restrictive covenant.
Moreover, restrictive covenants are to be strictly construed; ambiguities therein are to be construed to allow free use of the property. Courts should not construe the intent of the restrictive covenant when adopted so broadly as to cover the desires of owners confronted with situations developing thereafter. Higdem v. Whitham (1975), 167 Mont. 201, 209, 536 P.2d 1185, 1190.
Here the group home, by law, is structured as a single housekeeping unit, and to all outside appearances is a usual, stable and permanent family unit. City of White Plains v. Ferraioli (1974), 34 N.Y.2d 300, 313 N.E.2d 756, 758, 357 N.Y.S.2d 449, 452. Nothing in the language of the restrictive covenant here requires a construction that the “family” should be a biologically single unit. Accordingly, we hold the use allowed here is one within the ambit and intent of the restrictive covenant.
IT IS THEREFORE ORDERED that the injunction pendente lite issued by the District Court in this cause be quashed and that the complaint filed in the matter entitled Fishbough, et al. v. Region II Child Family Services, et al., no. BVD-79-944, filed October 31, 1979, in the District Court of the Eighth Judicial District be dismissed on the basis of constitutional, statutory and case authority of this State.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
-20,
21,
-19,
9,
-35,
-14,
20,
104,
-46,
31,
-80,
38,
-2,
22,
44,
-9,
-14,
-7,
12,
20,
-7,
40,
-62,
10,
37,
24,
34,
-43,
-10,
-19,
20,
-48,
22,
2,
-33,
-12,
10,
-14,
38,
-3,
83,
15,
13,
-29,
5,
-1,
62,
26,
-10,
-22,
-17,
38,
12,
13,
-17,
23,
0,
-14,
-16,
21,
-1,
28,
19,
5,
25,
9,
-9,
-19,
10,
-42,
19,
3,
12,
-38,
20,
14,
7,
-11,
22,
27,
-40,
-23,
3,
-8,
-42,
-44,
37,
-29,
19,
4,
-40,
-22,
-4,
39,
-35,
62,
15,
11,
-12,
6,
-54,
-21,
41,
23,
35,
-40,
26,
12,
53,
35,
-46,
17,
-64,
26,
-3,
37,
-43,
38,
-8,
-4,
-47,
21,
-17,
13,
8,
-22,
-19,
-31,
0,
-9,
-14,
-14,
48,
36,
-6,
30,
-7,
-36,
27,
-9,
-26,
-23,
60,
4,
-5,
-30,
-8,
-42,
0,
-35,
12,
-21,
7,
58,
27,
-42,
32,
-25,
7,
0,
34,
-33,
-8,
11,
-26,
-17,
-22,
79,
-12,
7,
48,
2,
-34,
-27,
-10,
-30,
1,
23,
-5,
51,
-14,
0,
21,
-19,
29,
-15,
11,
-12,
32,
-45,
-18,
-44,
-35,
-8,
-36,
0,
-2,
-5,
-78,
19,
-18,
47,
20,
12,
-22,
-8,
-58,
-34,
26,
36,
35,
-7,
-31,
-21,
12,
-37,
-23,
77,
-5,
20,
0,
31,
0,
26,
-54,
-27,
3,
-24,
16,
-36,
-1,
17,
21,
14,
13,
20,
-10,
67,
3,
0,
31,
-54,
18,
-27,
0,
33,
-35,
-49,
12,
-67,
-36,
-23,
-5,
-21,
13,
16,
26,
8,
36,
-39,
22,
-37,
-25,
-19,
-11,
3,
-14,
2,
43,
44,
-9,
60,
-21,
22,
-54,
-25,
23,
-3,
26,
26,
11,
-24,
45,
14,
39,
2,
71,
-8,
-59,
20,
25,
-19,
41,
-49,
-6,
-63,
-47,
-69,
1,
-11,
-45,
-19,
9,
-5,
-30,
27,
-28,
30,
10,
18,
45,
-26,
11,
-25,
9,
-34,
-32,
5,
12,
-39,
69,
37,
67,
29,
-37,
0,
44,
-10,
-26,
23,
-6,
20,
19,
73,
61,
57,
43,
-86,
19,
2,
34,
41,
6,
-4,
-12,
7,
5,
14,
-21,
41,
6,
61,
-5,
-17,
21,
33,
-90,
-23,
-30,
43,
7,
19,
-21,
-22,
-8,
4,
65,
-19,
-32,
3,
-10,
-2,
62,
12,
30,
-17,
12,
20,
-39,
-25,
-21,
23,
3,
27,
-18,
23,
-36,
32,
4,
-28,
-2,
-49,
19,
26,
9,
-39,
36,
-18,
10,
-51,
22,
-1,
-26,
8,
38,
20,
18,
0,
-11,
-9,
-2,
-2,
-19,
-24,
6,
32,
-1,
-23,
-8,
-23,
-11,
19,
6,
-28,
-32,
41,
0,
1,
-60,
44,
-40,
25,
-3,
9,
28,
-5,
9,
0,
-61,
10,
-20,
-11,
-10,
0,
20,
-56,
-29,
16,
29,
-79,
-20,
20,
-4,
6,
41,
26,
41,
-27,
-10,
-66,
1,
50,
60,
16,
28,
-39,
-22,
-30,
-27,
22,
-69,
19,
42,
26,
27,
5,
-68,
25,
-64,
21,
-27,
-30,
-34,
3,
44,
67,
-13,
-33,
-6,
65,
38,
-7,
35,
20,
-12,
-11,
3,
-19,
-3,
-5,
36,
-13,
35,
-3,
39,
-32,
-9,
28,
-28,
12,
41,
0,
-4,
26,
-56,
25,
38,
-73,
-25,
10,
3,
13,
14,
-56,
-16,
8,
9,
38,
-1,
-28,
-38,
26,
33,
-9,
-5,
15,
9,
69,
-3,
7,
39,
-43,
-70,
-27,
0,
20,
-31,
13,
-6,
-31,
38,
-40,
-15,
76,
13,
-26,
-43,
15,
-35,
-20,
19,
48,
42,
-9,
-33,
-9,
-47,
-33,
-22,
75,
16,
4,
-44,
-24,
-35,
-22,
4,
-7,
6,
-8,
17,
28,
10,
-24,
-48,
0,
25,
65,
-39,
51,
-41,
-11,
-27,
0,
-47,
-9,
-36,
5,
-76,
-12,
-57,
44,
88,
-6,
23,
13,
30,
-27,
19,
-50,
-22,
7,
-36,
9,
-48,
48,
29,
-6,
26,
25,
16,
-17,
18,
-26,
-30,
-14,
-16,
50,
47,
2,
-13,
13,
14,
-43,
56,
42,
-3,
-4,
9,
-8,
-66,
16,
-26,
36,
-50,
-23,
13,
0,
24,
11,
2,
8,
28,
-58,
36,
-51,
76,
-45,
6,
-9,
52,
-18,
21,
-3,
14,
-15,
26,
29,
43,
89,
-27,
9,
3,
74,
-9,
-66,
-11,
-14,
41,
-31,
-31,
-14,
-3,
-38,
9,
1,
6,
-33,
-59,
51,
41,
-3,
-4,
19,
-6,
15,
-28,
38,
-37,
114,
-41,
-2,
25,
-14,
-35,
49,
-43,
-16,
4,
-10,
-12,
-10,
47,
24,
-47,
13,
-35,
-35,
-29,
-46,
-14,
34,
-39,
2,
31,
-35,
60,
-43,
-4,
15,
-23,
26,
-18,
-9,
-15,
-3,
-13,
29,
40,
4,
18,
18,
-45,
3,
58,
31,
81,
4,
-71,
-12,
18,
-28,
-27,
-5,
16,
4,
-39,
13,
25,
59,
60,
-11,
-51,
16,
5,
-32,
-39,
-22,
5,
-42,
31,
78,
-52,
-44,
-11,
-60,
-11,
3,
-16,
-15,
-40,
-9,
-15,
-3,
-47,
-35,
60,
-1,
20,
0,
-1,
13,
33,
-48,
40,
26,
-24,
-20,
-26,
29,
-28,
28,
18,
51,
1,
32,
-46,
-20,
23,
25,
-21,
-26,
-22,
-19,
-18,
-36,
42,
20,
15,
12,
74,
-20,
-9,
-5,
71,
6,
24,
34,
36,
9,
-8,
8,
19,
41,
-23,
-65,
0,
-17,
84,
-25,
-52,
-2,
-41,
-62,
18,
20,
31,
-45,
45,
-15,
9,
26,
36,
11,
34,
-19,
-6,
10,
71,
25,
57,
26,
-21,
22,
3,
32,
25,
-33,
-2,
52,
1,
-73,
-1,
33,
-13,
-39,
-7,
-15,
12,
9,
47,
47,
-12,
16,
6,
38,
48,
3,
50,
-21,
-3,
-6,
-72,
-7,
15,
19,
-35,
-24,
-19,
-33,
-5,
46,
-89,
-13,
-19,
-27,
51,
2,
38,
-27,
-26,
23,
-24,
-3,
-62,
-23,
-26,
-35,
11,
52,
28,
-31,
-24,
-46,
-13,
-23,
-36,
22,
-14,
64,
-2,
-13,
-8,
10,
32,
-11,
25,
2,
16,
-64,
23,
24,
-4,
68,
8,
-25,
21,
-59,
6,
-31,
-52,
-6,
5,
-5,
19,
9,
3,
-4,
0,
-12,
-50,
18,
10,
0,
-36,
-28,
33,
23,
49,
-49,
-57,
17,
-43,
21,
-47,
28,
-40,
-22,
-26,
1,
-5,
-6,
19,
0,
-30,
-1,
-18,
14,
-35,
-55,
25,
0,
19,
-23,
53,
0,
-12,
-31,
11,
-16,
-26,
-10,
-39,
15,
29,
-7,
-48,
-22,
8,
-10,
-16,
15,
-19,
-22,
22,
-36,
-24,
31,
-24,
4,
32,
-27,
17,
-44
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Defendant William Stumpf appeals from a judgment of the District Court whereby he was sentenced to three years imprisonment for the crime of tampering with witnesses (section 45-7-206, MCA).
Defendant has two basic attacks on the statute itself. He claims that the substantive provisions of the statute are too broad, and fur thermore, that the penalty provision does not contain proper guidelines for sentencing. Defendant cites no authority and virtually makes no argument to support his contention that the substantive provision of the statute is too broad, and we are not inclined to do that for him. Accordingly, we reject this portion of his argument.
Section 45-7-206(2), provides that “[a] person convicted of tampering with witnesses or informants shall be imprisoned in thé state prison for any term not to exceed 10 years.” He claims that the statute itself contains inappropriate guidelines for sentencing, and furthermore, that the trial court abused its discretion by sentencing him to three years in prison. The statute itself does not have to contain the sentencing guidelines, and therefore we find no merit to this contention. We do find, however, that the failure of the trial court to specify the reasons why defendant was sentenced to three years in prison, is an abuse of discretion.
We do not deny the discretion of a trial court to sentence a defendant within the limits set by the statute. Indeed, it has always been the position of this Court that the extent of punishment is vested in the sound discretion of the trial court. But here, although the sentence imposed was well within the statutory limit of ten years, we are presented with no underlying reasons of why the trial court exercised its discretion in sentencing defendant to three years in prison. That a trial court has a right to exercise its discretion does not mean that a trial court should not disclose the reasons underlying a discretionary act. Absent these reasons, we as an appellate court, are left to guess as to why the trial court made a particular decision.
In Ballantyne v. Anaconda Co., (1978), 175 Mont. 406, 574 P.2d 582, set forth the underlying reasons why trial courts should set forth in the record the reasons for their decisions. Although that case involved the granting of a new trial without a specification of reasons, the same rationale applies to most of the decisions made by trial courts in both civil and criminal cases.
Although admittedly in a different context, this Court recently in the Matter of McFadden (1980), 185 Mont. 220, 605 P.2d 599, determined that a sentencing court must articulate its reasons underlying a determination that an offender was to be designated as a dangerous offender. Although McFadden turned on a statutory requirement, that reasoning also applies here.
In the context of this case, several jurisdictions require sentencing courts to state on the record the reasons for selecting a particular sentence. Some of these are controlled by statutes requiring the sentencing courts to disclose its reasons for sentencing (e. g., Pennsylvania, Louisiana, Illinois, Wisconsin, and Oregon). Others require it under the criminal procedure rules of the respective states (e. g., Pennsylvania, Iowa, and New Jersey). See, for example, State v. Ingenito (1979), 169 N.J.Super. 524, 405 A.2d 418; Com. v. Wareham (1978), 259 Pa.Super. 527, 393 A.2d 951. We also note that the American Bar Association Standards Relating to Appellate Review of Sentences, require the sentencing judge to state his reasons for selecting the particular sentence imposed. Standard 2.3(c).
Although a defendant is of course entitled to have a sentence reviewed by the Sentence Review Board, there can be no question that a statement in the record at the time sentence is imposed as to the reasons for the particular sentence, can give valuable aid to the Board when it is called upon to review the particular sentence involved. Otherwise it, too, is forced to guess as to why the particular sentence was involved. Undoubtedly, the Board could always contact the sentencing judge, but the chances that a faulty memory will become a factor in this process are avoided when the reasons for the sentence are stated for the record at the time of the sentencing.
We note, furthermore, that this requirement that the sentencing court state the specific reasons for imposing the particular sentence involved, is consistent with the first paragraph of Canon 19, Montana Canons of Judicial Ethics, 144 Mont. at XXVI-XXVII:
“In disposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law.”
We see no reason why a defendant sentenced to prison is not also entitled to know precisely why the sentencing judge chose the particular sentence involved. It is not enough that the sentence be within the statutory maximum. If that were the case, the sentence would simply not be an abuse of discretion, it would be plainly illegal. While illegal action must inevitably be an abuse of discretion, an abuse of discretion can occur and still not be tainted by illegality.
For the foregoing reasons the sentence imposed is vacated and this cause is remanded to the District Court for resentencing consistent with what we have said in this opinion. Other than as it applies to the defendant, this decision shall have prospective application only.
MR. JUSTICES DALY and SHEEHY concur.
|
[
37,
21,
53,
-38,
-31,
-32,
-40,
-51,
-71,
4,
33,
18,
-8,
-27,
65,
-38,
49,
8,
21,
6,
0,
18,
52,
19,
-16,
2,
80,
90,
6,
15,
69,
16,
36,
-21,
-8,
-32,
-16,
-3,
-8,
37,
-22,
-30,
-49,
-27,
34,
45,
45,
11,
63,
-34,
22,
29,
-12,
-31,
7,
25,
0,
16,
13,
10,
-19,
11,
-7,
-36,
-9,
-35,
56,
22,
-16,
-16,
-16,
-5,
-28,
-28,
13,
-49,
22,
67,
-3,
18,
-6,
10,
2,
7,
64,
-35,
45,
-57,
-15,
-24,
1,
-33,
-21,
-42,
-25,
-45,
24,
-26,
0,
20,
26,
26,
-19,
13,
0,
32,
-13,
44,
-37,
24,
-3,
31,
-27,
-13,
-22,
-29,
-40,
42,
4,
-9,
13,
26,
-4,
0,
42,
-10,
6,
-40,
67,
-44,
1,
12,
35,
8,
-42,
30,
-52,
16,
39,
49,
-53,
-63,
32,
-26,
21,
2,
-4,
-20,
32,
-25,
-19,
-28,
7,
-9,
18,
-85,
-26,
-9,
-39,
32,
91,
81,
-100,
34,
-13,
39,
-19,
-43,
0,
58,
-22,
40,
32,
-3,
10,
-21,
-34,
-5,
51,
6,
-15,
76,
-58,
24,
22,
-1,
-50,
25,
6,
-47,
2,
68,
-4,
-63,
53,
-26,
28,
63,
15,
2,
-34,
-37,
-3,
34,
17,
31,
7,
-31,
2,
45,
9,
-10,
-1,
19,
-19,
-35,
5,
-67,
6,
34,
-64,
-47,
0,
-93,
10,
-22,
13,
66,
9,
-13,
-19,
-18,
-11,
22,
9,
-12,
-1,
-51,
49,
39,
-30,
-1,
2,
29,
5,
28,
13,
41,
14,
-31,
-44,
19,
30,
44,
4,
-9,
-24,
-19,
-46,
-23,
-14,
24,
8,
-1,
-4,
-21,
24,
17,
-45,
-6,
-7,
-24,
-19,
31,
39,
-40,
-4,
-24,
-33,
-40,
-1,
41,
54,
-12,
0,
16,
-44,
29,
38,
10,
17,
-9,
-61,
55,
12,
13,
0,
-34,
-4,
18,
-5,
13,
-17,
43,
-26,
-12,
-11,
59,
-9,
-15,
8,
45,
-50,
49,
5,
40,
-36,
-40,
56,
-22,
-23,
21,
25,
-22,
-20,
-36,
69,
-16,
4,
-13,
10,
52,
20,
41,
35,
6,
-7,
-9,
12,
-3,
-33,
-48,
23,
-28,
-20,
39,
-21,
14,
-50,
-16,
39,
36,
-7,
0,
-75,
-35,
-56,
22,
-28,
-86,
48,
28,
-2,
-53,
-33,
33,
-13,
15,
18,
56,
10,
-46,
-18,
19,
16,
19,
37,
2,
35,
22,
27,
16,
50,
31,
-10,
-4,
-6,
-61,
-1,
50,
-46,
21,
-50,
-14,
-33,
22,
-7,
37,
32,
5,
-73,
-16,
-13,
-23,
26,
-5,
-16,
18,
-62,
34,
-38,
-8,
52,
61,
4,
26,
-36,
-15,
75,
-78,
41,
43,
73,
-5,
21,
2,
-52,
28,
-7,
-45,
29,
9,
-54,
-11,
0,
30,
-14,
-31,
27,
-32,
-19,
11,
17,
10,
28,
34,
24,
-54,
17,
-20,
-11,
-25,
14,
28,
2,
0,
60,
23,
-18,
3,
-2,
-2,
-60,
1,
41,
-11,
-53,
-23,
13,
-11,
25,
-17,
16,
32,
12,
37,
-31,
11,
61,
15,
0,
20,
-5,
8,
10,
-19,
-38,
-61,
5,
0,
-17,
3,
2,
-7,
-32,
0,
-3,
-5,
16,
38,
5,
2,
2,
9,
-17,
-33,
65,
-35,
58,
31,
24,
19,
63,
-8,
-49,
-57,
11,
-37,
45,
0,
33,
-46,
18,
3,
-92,
-18,
-54,
2,
-81,
-24,
60,
37,
-23,
-51,
54,
28,
-34,
-69,
-19,
-31,
10,
17,
18,
21,
18,
-13,
48,
8,
37,
-1,
22,
15,
36,
7,
-32,
-72,
-29,
11,
39,
-42,
0,
-14,
25,
38,
-10,
20,
0,
48,
12,
-10,
29,
4,
-31,
18,
0,
26,
49,
25,
16,
-4,
5,
50,
-66,
-7,
-2,
-26,
-9,
-13,
30,
-8,
12,
7,
28,
-18,
6,
-25,
-18,
-90,
53,
39,
-2,
69,
23,
28,
50,
40,
1,
-1,
-7,
61,
58,
-33,
-68,
-52,
12,
5,
-14,
-42,
-31,
21,
30,
-16,
40,
-7,
19,
-31,
-62,
-4,
-21,
-45,
-61,
1,
40,
-1,
33,
-57,
-36,
32,
-36,
15,
33,
2,
0,
-22,
75,
28,
13,
27,
31,
-52,
-21,
-31,
16,
-94,
15,
-4,
-50,
-10,
16,
17,
-41,
6,
-56,
25,
8,
59,
-51,
-13,
38,
-34,
68,
-37,
22,
4,
-25,
-29,
5,
-69,
0,
-9,
-13,
-38,
9,
-22,
3,
-38,
-68,
1,
14,
48,
5,
0,
-3,
45,
26,
2,
96,
3,
-47,
21,
-8,
-11,
-36,
-59,
1,
-25,
45,
-18,
-11,
18,
-27,
14,
-11,
-10,
-23,
-85,
-24,
0,
-33,
51,
4,
-21,
-9,
33,
-13,
-20,
43,
-10,
-7,
-9,
52,
-7,
-31,
18,
-5,
-7,
-51,
-42,
-20,
1,
-35,
0,
-20,
-6,
25,
6,
16,
-47,
17,
-7,
66,
22,
30,
-13,
-95,
50,
29,
-17,
-57,
-36,
24,
87,
1,
-18,
-26,
-55,
8,
-30,
9,
-11,
-14,
-23,
4,
87,
-19,
-10,
-63,
2,
-8,
1,
-6,
103,
-39,
-40,
31,
-20,
-34,
-50,
7,
27,
26,
10,
-45,
45,
23,
-1,
-45,
37,
12,
-4,
43,
7,
44,
-21,
-64,
17,
-6,
-73,
5,
23,
32,
69,
-6,
47,
0,
-63,
-11,
-57,
11,
-32,
20,
-32,
-4,
7,
43,
21,
10,
-85,
-11,
47,
11,
-6,
23,
10,
21,
2,
-40,
29,
-41,
-1,
72,
-31,
-4,
28,
43,
20,
3,
-32,
1,
24,
8,
41,
-29,
-32,
-7,
-3,
-12,
13,
8,
-10,
12,
66,
11,
-12,
-4,
10,
12,
-13,
-22,
4,
-11,
58,
34,
0,
-61,
-37,
-3,
18,
-18,
42,
28,
-41,
23,
-13,
21,
-14,
-59,
-20,
-40,
-12,
-5,
18,
21,
-30,
3,
17,
6,
-6,
74,
-71,
19,
8,
7,
15,
68,
46,
14,
-8,
-62,
74,
-13,
-24,
40,
10,
10,
5,
-60,
10,
-17,
-52,
-9,
31,
58,
51,
-8,
-48,
-10,
-35,
-46,
20,
-53,
12,
6,
-14,
-3,
-26,
12,
-66,
36,
-4,
-46,
-44,
-12,
-6,
-6,
28,
-59,
-37,
-32,
-33,
-28,
40,
-62,
34,
-24,
-32,
22,
-8,
19,
-21,
-46,
58,
-20,
-41,
15,
3,
41,
-46,
-28,
35,
0,
-58,
48,
-20,
1,
-46,
7,
12,
-56,
-17,
-27,
-8,
39,
-23,
-20,
-19,
53,
2,
19,
-9,
-48,
11,
44,
21,
3,
25,
25,
-41,
30,
10,
-46,
14,
16,
-33,
-8,
25,
-33,
-14,
-11,
4,
30,
-41,
30,
-31,
-36,
0,
-27,
-10,
-58,
37,
-9,
61,
0,
41
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The husband appeals from an order of the Yellowstone County District Court which modified his child support payments and awarded attorney fees to the wife for representation necessitated by the husband’s initiation of the original petition to modify the divorce decree in relation to visitation and to permit him to inspect the home of the parties for the purpose of making repairs. He also appeals from a subsequent order of the trial court which awarded $3,000 to the wife as attorney fees and costs anticipated for defending his appeal to this Court.
This dispute centers around a property settlement agreement entered into by the parties one month before their divorce. The agreement provided for child custody and child support and stated that the husband should have sole interest in the family home. The husband agreed to pay the wife $100 per month for the support of the parties’ minor daughter, with the proviso, however, that they were not to begin until the expiration of five years. He contends, however, that he made house payments as a substitute for child support.
The agreement provided for child custody in the wife, but it appears that child support was tied into the house payments. It permitted the wife to live in the house rent-free for a five year period. If, on the other hand, the wife moved out of the house before the expiration of the five year period, monthly child support payments in the amount of $ 100 would start immediately. The husband also informed the wife that he would assume responsibility for the house payments which amount to $ 162 per month. The husband was not represented by counsel. Four days after the wife filed her petition for dissolution of the marriage, the husband signed a document incorporating the terms previously mentioned. The husband was still not represented by counsel.
In dissolving the marriage, the trial court entered an order which incorporated the parties’ agreement and ordered the parties to comply with its terms.
A year and a half after the dissolution, the husband petitioned the court to provide a child visitation schedule, and also to obtain an order permitting him to inspect the parties’ home for the purpose of making repairs. The wife filed a reply and a counterpetition, and sought an order which would divide the property and order the sale of the parties’ home. The counterpetition, furthermore, alleged that the husband had not paid any child support since the dissolution, and asked that the husband not only pay back support but that he be required to pay $ 150 per month for the support of his minor daughter. The wife also requested reasonable attorney fees.
The trial court refused to make a property division. The end result is that the wife is to stay in the home and the husband continues to make the monthly $162 payments. However, the trial court, in addition to this, ordered the husband to commence monthly $150 payments to the wife for child support. Additionally, the order provided that the husband was to pay $2,250 for back child support. This figure represented the time period between the time the wife filed her counterpetition and the time that the order for child support was entered.
The trial court then filed an amended judgment. It set out a visitation schedule for the husband, but also provided that child support payments of $ 150 per month were in addition to payments provided for by the so-called property settlement agreement. The order also provided for an award of $750 attorney fees to be paid by the husband to the wife’s attorney. The husband appeals from both the child support order and the attorney fee order.
After the husband filed his notice of appeal, the wife filed a motion in District Court asking for attorney fees and costs anticipated to be incurred in defending her husband’s appeal. The trial court entered an order, ordering the husband to pay $3,000 in attorney fees and anticipated costs. The husband was ordered to make this payment on or before June 29, 1979. On June 28, 1979, the husband petitioned this Court for a writ of supervisory control. We issued an order staying the order of payment of $3,000 in fees so that the issue could be considered along with the other issues involved in this appeal.
The wife argues that by the terms of the agreement incorporated into the divorce decree the husband did not have to pay child support for the first five years. Thus she now contends that the trial court’s October 1978 order requiring child support payments, is not a modification of the original decree. The record on the whole, however, establishes that the wife’s rent-free rental of the parties’ house was agreed upon as a substitute for direct child support payments denominated as such. The wife did not dispute the husband’s testimony that he had informed her that he would make mortgage payments on their house and allow her to live in the house for five years rather than paying her directly for child support.
The husband’s testimony is further supported by the provision of the divorce decree that the husband would commence direct child support payments should the wife move out of the house. The husband has not had to do this, however, because since the divorce the wife has lived in the house and the husband has continued to make the mortgage payments. Thus we conclude that the trial court’s finding that no child support payments have been made since the parties’ divorce is not supported by substantial evidence. Clearly, therefore, the trial court’s order requiring the husband to pay $ 150 per month for child support, is a modification of the support payments incorporated in the divorce decree.
The trial court did not enter the appropriate findings and conclusions by which this Court can review an order modifying child support payments. Section 40-4-208(2)(b), MCA, authorizes a trial court to modify child support payments only “upon written consent of the parties”, or upon a showing that “substantial and continuing” circumstances make the child support provisions “unconscionable.” In her proposed findings the wife requested $150 per month as a reasonable sum for child support. The trial court adopted her finding in its order which stated: “$150.00 per month for the support and maintenance of the minor child is a reasonable sum . . .” This finding is clearly insufficient upon which to predicate a modification of the child support provisions in compliance with section 40-4-208(2)(b). This section requires formal findings that substantial and continuing circumstances make the terms of child support unconscionable. See, Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d 929; See also, Kronovich v. Kronovich (1978), 179 Mont. 335, 588 P.2d 510. Absent the necessary findings, this Court will not independently search the record to determine if there is nonetheless an evidentiary basis for the order modifying the child support provisions. It is clear, therefore, that this case must be remanded to the trial court for entry of the appropriate findings.
The husband contends next that the trial court erred in awarding $750 attorney fees to wife’s attorney for legal services rendered in seeking the increased child support payments. The evidence concerning each of the parties’ incomes presented at the hearing, supports the trial court’s decision allowing attorney fees. The husband does not dispute the amount of the fee and we conclude that the trial court did not abuse its discretion.
The last issue concerns the award of attorney fees and costs to the wife so that she could defend the present appeal filed by the husband. We conclude that the $3,000 attorney fee order is manifestly in error. The trial court’s authority, if such exists, to award attorney fees for purposes of appeal, arises from section 40-4-110, MCA. This section provides that the court may order one party to pay the other’s attorney fees “for legal services rendered and costs incurred . . . after entry of judgment.” (Emphasis added.) This section contemplates that under normal circumstances, an order for attorney fees will be permitted only after counsel for the benefited party has completed his services.
The order here requires payment for expenses that are purely speculative. At the time the trial court entered the order requiring the husband to pay $3,000 on or before June 29, 1979, the wife’s attorney had only completed preliminary work in relation to the appeal. His affidavit in support of the wife’s motion for attorney fees, indicated that he had completed only 20 percent of the work expected for this appeal. His anticipated time included hours spent for activities which in fact he was never required to perform. For example, the affidavit listed 5 hours time to prepare for and present oral argument before this Court. But, because of the nature of the case and the issues involved, this Court ordered the case submitted on briefs. Thus the need for oral argument is non-existent.
And there is another factor which this Court must address. In his affidavit, the wife’s counsel declared that he had spent over 60 hours in preparing for the hearing in support of the wife’s motion for an advance award of attorney fees. Although the order is silent, it appears that the court’s attorney fee award is at least in part to compensate counsel for the time spent in securing a court order for payment of his fee rather than for his time spent in responding to the husband’s appeal. We reject the notion that the court may require one party to pay opposing counsel for his time spent in seeking justification of the fees he desires. The practice of law has its burdens as well as benefits, and this is one burden that counsel must bear without an expectation of compensation.
We note with respect to the issue of attorney fees on appeal, the brief filed on behalf of the wife in this Court is silent. Counsel’s failure to respond to this issue raised by the husband, we believe, speaks for itself.
The trial court’s child support order is vacated, and this issue is remanded to the District Court for further proceedings consistent with this opinion. The order awarding $3,000 in attorney fees to be paid to the wife’s attorney, is reversed. The District Court’s award of $750 attorney fees for services rendered in District Court, is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, DALY and SHEEHY concur.
|
[
-23,
0,
-37,
-5,
-29,
-35,
-8,
18,
43,
-38,
9,
2,
19,
-9,
-9,
-15,
-7,
-52,
45,
-8,
-5,
-13,
11,
13,
65,
84,
1,
-1,
15,
-34,
17,
7,
-28,
13,
-12,
-8,
-27,
15,
-13,
3,
34,
-46,
-2,
26,
-47,
35,
42,
-32,
-32,
1,
-22,
-55,
24,
13,
70,
46,
4,
31,
-40,
-23,
-18,
10,
-28,
58,
19,
-5,
81,
4,
35,
-27,
-26,
-36,
19,
-4,
4,
-32,
-24,
12,
-48,
35,
8,
-10,
3,
-28,
0,
-26,
17,
42,
-9,
62,
-8,
76,
26,
35,
-25,
15,
-1,
7,
29,
59,
-28,
-41,
60,
26,
-18,
17,
15,
-7,
23,
29,
16,
-37,
21,
0,
-35,
29,
-29,
-40,
20,
-35,
19,
41,
0,
6,
24,
-10,
-14,
-4,
22,
-48,
-13,
8,
8,
-18,
-29,
-67,
7,
-16,
21,
-10,
0,
-45,
30,
4,
29,
-21,
25,
-77,
-70,
-48,
16,
-34,
47,
47,
96,
-57,
-15,
-13,
45,
-23,
65,
61,
-83,
0,
0,
-2,
-8,
52,
6,
0,
67,
11,
-61,
-59,
22,
12,
-8,
-3,
10,
3,
53,
89,
18,
-31,
49,
44,
20,
-15,
9,
-65,
-52,
-6,
0,
21,
18,
3,
45,
35,
14,
13,
-19,
-17,
9,
54,
-29,
-25,
24,
-11,
0,
-9,
11,
21,
-14,
-29,
-77,
8,
-18,
28,
-37,
4,
30,
-33,
-18,
-51,
-92,
-17,
18,
-14,
2,
-24,
-58,
26,
-9,
-2,
0,
5,
-14,
16,
-19,
0,
-13,
-25,
-44,
-8,
35,
27,
-47,
9,
-42,
3,
-26,
-7,
-2,
33,
34,
-9,
-11,
32,
32,
-31,
-32,
19,
23,
0,
4,
-40,
-2,
6,
33,
16,
-17,
23,
39,
6,
39,
-7,
-39,
12,
-54,
32,
-10,
19,
-17,
23,
0,
43,
17,
27,
53,
43,
-17,
-51,
61,
-41,
5,
19,
-33,
-33,
-24,
-23,
-36,
-63,
24,
79,
-34,
-25,
-15,
8,
9,
-1,
6,
5,
-32,
16,
26,
4,
-70,
-20,
-19,
-22,
81,
-23,
-10,
13,
-17,
11,
30,
-37,
-32,
5,
-58,
11,
-19,
-23,
59,
-45,
30,
-5,
-48,
-9,
-7,
-30,
38,
48,
13,
4,
31,
13,
-13,
36,
-68,
-10,
-28,
46,
-69,
-14,
0,
-41,
-19,
-53,
20,
2,
-26,
-102,
-41,
67,
54,
3,
0,
15,
-27,
24,
-24,
-7,
6,
-11,
-13,
9,
3,
6,
-31,
-28,
-8,
2,
10,
14,
-37,
-41,
-41,
-13,
3,
-4,
41,
6,
11,
27,
32,
-16,
-33,
-27,
41,
-21,
19,
-17,
13,
-5,
13,
-39,
-78,
0,
-10,
-60,
-34,
6,
64,
22,
30,
1,
2,
56,
-5,
7,
-12,
-27,
17,
40,
-28,
-55,
-20,
13,
-15,
64,
25,
3,
104,
-16,
21,
-3,
-42,
38,
5,
54,
21,
30,
41,
0,
-44,
-41,
32,
28,
6,
-54,
16,
64,
-2,
-72,
3,
8,
-60,
-58,
6,
56,
27,
-48,
45,
-51,
-32,
1,
5,
12,
-30,
41,
7,
59,
0,
15,
-42,
-10,
12,
-24,
-32,
0,
-37,
41,
6,
64,
-49,
-42,
-25,
-8,
21,
-33,
-3,
28,
-3,
-58,
15,
-1,
2,
-17,
-8,
9,
25,
28,
16,
-42,
-26,
11,
21,
18,
15,
16,
54,
-58,
-12,
-15,
18,
30,
72,
-2,
-19,
47,
-16,
-54,
56,
-25,
14,
59,
-45,
15,
-24,
105,
-8,
-29,
-31,
21,
-1,
10,
51,
-31,
9,
17,
-10,
-7,
27,
48,
-21,
10,
5,
32,
35,
-62,
-4,
9,
11,
8,
-17,
-9,
12,
-66,
73,
-10,
-54,
-21,
3,
-38,
-22,
-16,
-15,
19,
-32,
25,
-22,
40,
27,
4,
-30,
-37,
-37,
-26,
2,
6,
-48,
-18,
-13,
9,
19,
25,
28,
-12,
-42,
-14,
24,
7,
3,
-31,
-8,
-28,
-32,
8,
-36,
31,
-25,
-41,
-39,
-6,
-8,
60,
20,
-16,
-3,
49,
19,
-35,
44,
18,
31,
-55,
43,
18,
27,
11,
22,
-43,
5,
-57,
4,
34,
-50,
7,
11,
-15,
93,
-11,
46,
-2,
32,
-19,
-8,
-66,
38,
64,
-52,
29,
2,
-4,
0,
-21,
12,
-48,
10,
41,
-7,
-41,
59,
-8,
38,
-14,
7,
36,
9,
-69,
9,
56,
24,
9,
-25,
61,
-11,
3,
-21,
-19,
18,
14,
12,
-2,
6,
31,
38,
36,
12,
-27,
-53,
-23,
-56,
-40,
-8,
-55,
1,
20,
-25,
21,
-20,
-25,
-32,
15,
-22,
79,
-50,
23,
4,
6,
0,
-35,
13,
23,
-9,
8,
-13,
-6,
12,
23,
-35,
3,
-51,
-18,
-45,
20,
-43,
-6,
-39,
-3,
-50,
-40,
-4,
-35,
-20,
-5,
-16,
-30,
-14,
37,
-12,
28,
-83,
20,
0,
25,
-44,
52,
29,
-30,
28,
38,
24,
23,
5,
12,
-31,
4,
27,
-12,
13,
50,
-32,
-26,
15,
-43,
-13,
-1,
3,
64,
-30,
60,
4,
-12,
-8,
-15,
23,
-24,
-16,
-5,
29,
29,
2,
-16,
-34,
11,
9,
-85,
0,
10,
4,
-33,
-39,
-33,
51,
-59,
51,
55,
4,
-74,
80,
-33,
21,
-22,
-29,
12,
9,
-58,
44,
58,
43,
-35,
3,
29,
-56,
0,
0,
10,
-6,
-3,
42,
31,
-4,
-34,
-23,
-8,
10,
1,
60,
-29,
-9,
11,
20,
-16,
1,
20,
-62,
50,
56,
-16,
47,
4,
-31,
-7,
12,
-22,
-54,
27,
8,
-40,
-34,
-4,
66,
82,
19,
-13,
63,
7,
48,
-14,
28,
23,
-2,
-10,
-62,
15,
-7,
-19,
8,
15,
10,
5,
16,
-4,
30,
0,
-30,
-39,
46,
-48,
20,
18,
13,
-20,
61,
1,
1,
-44,
5,
5,
-13,
-25,
-32,
-10,
16,
37,
-40,
11,
-14,
-21,
9,
-8,
-5,
-29,
-26,
-44,
-36,
-32,
13,
25,
-31,
12,
61,
-29,
-41,
66,
21,
-5,
25,
9,
-30,
18,
-26,
-25,
-8,
-12,
-26,
46,
-26,
0,
-28,
1,
9,
4,
-45,
-12,
-34,
25,
5,
11,
-14,
12,
18,
-11,
7,
43,
-7,
-28,
-11,
8,
40,
-24,
-28,
46,
5,
-56,
-3,
-11,
-50,
30,
29,
55,
-4,
-14,
-37,
-11,
-2,
58,
-59,
29,
26,
-43,
-12,
-28,
88,
27,
-26,
-19,
42,
-19,
-42,
-39,
-11,
16,
73,
22,
47,
-25,
19,
8,
31,
-3,
-24,
42,
-19,
-48,
-25,
-7,
29,
-16,
19,
-24,
46,
-25,
57,
-43,
42,
9,
-14,
30,
9,
17,
-44,
-45,
-23,
59,
16,
-13,
4,
-15,
26,
-23,
-47,
31,
-44,
31,
-19,
1,
-13,
-13,
47,
31
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
This is an interlocutory appeal by the State of Montana from a judgment of the District Court of the Eleventh Judicial District, in and for Flathead County, suppressing certain evidence in the case of Joel Jon Ulrich, who is charged with the offense of deliberate homicide.
Testimony received at the preliminary hearing held on August 10, 1979, and at the suppression hearing held on January 4, 1980, indicates that Carolyn Wiley died in her Columbia Falls trailer house as a result of a gunshot wound inflicted in the late evening hours of July 14 or the early morning hours of July 15, 1979. Death was caused by a small caliber bullet entering the back of her head.
At approximately 8:00 a. m. on July 15, 1979, Officer Gregory Dawson of the Columbia Falls Police Department arrived at the trailer house occupied by defendant, Joel Jon Ulrich, and the deceased, Carolyn Wiley, and located the body of Ms. Wiley. During an investigation conducted that morning by Officer Dawson and other officers of the Columbia Falls Police Department, information received from interviews indicated that Carolyn Wiley and defendant had been living together for approximately three years; that they had been arguing the day preceding her death; and that defendant was the last person seen with her in the trailer.
At about 2:30 p. m. that same day, defendant Ulrich walked into the Columbia Falls police station and asked, “Will someone tell me what’s going on . . .?” He was taken to the office of the chief óf police and placed under arrest. He was then given his Miranda rights. At that time, defendant stated that he was not going to say anymore until he saw an attorney. Defendant was asked some questions and several times informed the officers that he wished to have an attorney present. During this time period, Officer Dawson entered the room, prepared his equipment, and performed a neutron activation test upon defendant.
The neutron activation test involves running cotton swabs over the fingers, palms, and top of the hands. The swabs are then placed in a special kit and mailed to a scientific laboratory for examination to determine the presence of barium and antimony, the residue of gunpowder.
At no time did the defendant consent to the taking of the neutron activation test. At no time up to and during the taking of the test was defendant’s counsel present or had he consulted with counsel. At no time up to and during the swabbing of defendant’s hands did he voice a refusal or offer any physical or verbal resistence to the administration of the neutron activation test. No force of any kind was used in the administration of the neutron activation test by Officer Dawson.
Ulrich was charged with the offense of deliberate homicide by complaint dated July 16, 1979. He has entered a plea of not guilty. On December 26, 1979, defendant filed a motion to suppress the results of the neutron activation test on the grounds that it was an unreasonable and illegal search and seizure under the Fourth Amendment. He also sought to suppress other evidence as being in violation of his rights against self-incrimination under the Fifth Amendment and Miranda, and in violation of his Sixth Amendment right to counsel.
A hearing on the motion to suppress was held on January 4, 1980, at which time the District Court made findings of fact and conclusions of law and ordered certain items of evidence suppressed. The District Court found as a matter of law that the arrest of defendant at the Columbia Falls police department was lawful and proper in that there was probable cause to arrest defendant at that time. The Court also determined as a matter of law that the taking of the neutron activation test without having afforded defendant his right to counsel and without obtaining his affirmative consent violated his constitutional rights. Such evidence obtained was thereby ordered suppressed. The District Court’s findings, however, are unclear as to the specific legal basis for suppressing the results of the neutron activation test.
Pursuant to section 46-20-103(2)(e), MCA, the State of Montana appeals only that part of the order suppressing the results of the neutron activation test and presents the following issues for review:
1. Whether defendant’s Fourth Amendment right to be secure against unreasonable searches and seizures was violated by the administration of a neutron activation test without a search warrant immediately after his arrest?
2. Whether defendant’s Fifth Amendment rights against self-incrimination were violated by administering the neutron activation test?
3. Whether defendant’s Sixth Amendment right to counsel applies to the administration of the neutron activation test?
The State contends that the administration of a neutron activation test by police officers upon defendant after a lawful and proper arrest is within the authority of the officer’s right to search the defendant’s person incident to a lawful arrest under the Fourth Amendment of the United States Constitution and under sections 46-5-102(4) and 46-5-101(1), MCA. The manner of search was reasonable under the standards set forth in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. The Fourth Amendment does not prohibit all searches and intrusions, only those “which are not justified in the circumstances, or which are made in an improper manner,” i. e., “unreasonable.” Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834.
Defendant contends that the State failed to meet its burden of proof at the suppression hearing to make an affirmative showing that the evidence seized by the neutron activation test could or would have been destroyed or lost had a search warrant been obtained, citing Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900; Schmerber, supra; and State v. Cripps (1979), 177 Mont. 410, 582 P.2d 312. Therefore, the District Court properly suppressed any evidence relating to the taking of or results from the neutron activation test. Furthermore, defendant argues that there could be no valid search incident to arrest because there was insufficient probable cause to allow a war-rantless arrest, and defendant’s arrest was therefore unlawful.
First, we take note that the trial court found probable cause and a legal arrest. This issue has not been appealed, and is not before this Court.
This appeal concerns the permissible scope of a warrantless search incident to arrest where the material seized from the person of the defendant constitutes evidence of the offense. “It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.” United States v. Robinson (1973), 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427. See also United States v. Edwards (1974), 415 U.S. 800, 802, 94 S.Ct. 1234, 39 L.Ed.2d 771. A search incident to a lawful arrest requires no additional justification if it is within the permissible scope, Robinson, 414 U.S. at 235, and there is no requirement that the State make a showing that the evidence is destructible.
“The constitutionality of a search incident to arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. United States v. Robinson . . .” Michigan v. Defillippo (1979), 443 U.S. 31, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343.
Additionally, although the fact that there was evidence upon defendant’s person that could be destroyed or lost over a period of time was a factor considered by the Court in Schmerber and in Cupp v. Murphy, supra, the evidence in this case was also destructible or subject to loss with the passage of time, as were the fingernail scrapings in Cupp and the blood sample in Schmerber.
We are of the opinion that the administration of a neutron activation test by police officers upon defendant following his arrest was within the permissible scope of a search incident to a lawful arrest under the Fourth Amendment. To begin with, the Fourth Amendment does not prohibit all searches and seizures, only those which are “unreasonable”; i. e., “which are not justified in the circumstances, or which are made in an improper manner.” Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834. Any intrusion involved in this case was minimal, and the search and the manner in which it was conducted were reasonable under the standards set forth by the United States Supreme Court in Schmerber and Cupp.
In affirming the defendant’s conviction for operating a motor vehicle while under the influence of intoxicating liquor, a majority of the Court in Schmerber held that the extraction from the defendant of a blood sample to test for alcohol as an incident to his arrest was not an unreasonable search. The Court compared searches of dwellings and “intrusions into the human body,” and went on to observe that the taking of a blood sample to prevent the destruction of evidence was justified by the emergency nature of the search; “We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” 384 U.S. at 770, 86 S.Ct. at 1836.
There is no doubt an affirmative showing was made in Schmer-ber, but it is highly questionable that this becomes part of the rule. In any event, we do not have an intrusion of the body in this case, so we view the matter in a softer light than the defendant and look to a more factually similar case for direction.
In Cupp v. Murphy, supra, the suspect voluntarily appeared at the police station for questioning concerning the strangulation death of his wife, at which time the police noticed what appeared to be dried blood on his finger. The suspect had not been formally placed under arrest, although the police had probable cause to arrest him at that time. He attempted to rub the evidence off his hands after refusing to consent to the taking of a fingernail sample. Against his will and without obtaining a search warrant, the police took scrapings from the defendant’s fingernails which produced incriminating evidence. The Supreme Court held that the search did not violate the defendant’s Fourth Amendment rights:
“We believe this search was constitutionally permissible under the principles of Chimel v. California, 395 U.S. 752 [89 S.Ct. 2034, 23 L.Ed.2d 685]. . . Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest . . . The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession . . . The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement.
“. . . The rationale of Chimel, in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails . . .
“On the facts of this case, considering the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence, we cannot say that this search violated the Fourth and Fourteenth Amendments.” Cupp, 412 U.S. at 295-96, 93 S.Ct. at 2003-2004.
The rationale of these holdings is that the permissible scope of a search incident to a lawful arrest, when the officers are searching for evidence of the offense, is restricted to where the evidence seized was of such a nature that it was likely to be lost or destroyed if not immediately seized. Contrary to defendant’s contentions, however, these cases do not impose upon the State a burden of making an affirmative showing that the evidence seized was of such a nature that it was likely to be lost or destroyed if not immediately seized. In any event, the State in its trial brief informed the District Court that after a period of time the presence of gunpowder residues on the defendant’s hand can change and finally be destroyed so that the evidence in fact disappears. Furthermore, this Court has upheld a full body search incident to a custodial arrest in State v. Cripps (1978), 177 Mont. 410, 582 P.2d 312, where the police had probable cause to arrest the defendants and found illegal drugs in one defendant’s pocket and on the other defendant during a jailhouse search. We said:
“It is well settled that law enforcement officers may make a full body search pursuant to a lawful arrest for purposes of protecting themselves or seizing evidence of the crime.” Cripps, 582 P.2d at 318.
In the same case, a search of the defendant’s car for illegal drugs conducted at the scene of the arrest was held improper “when there was no chance of defendant’s harming the police officers nor of their destroying their evidence.” 582 P.2d at 319.
From the uncertainty of the trial court’s order, we should comment beyond the Fourth Amendment to avoid any future delay in this matter.
The administration of a neutron activation test upon defendant did not violate his rights under the Fifth Amendment because the Fifth Amendment protects only against compelling “evidence of a testimonial or communicative nature.” Schmerber, 384 U.S. at 761, 86 S.Ct. at 1830. The gunpowder residues taken from defendant’s hands do not meet this criteria.
The Sixth Amendment right to counsel does not apply to these circumstances. An initial search of a defendant incident to arrest does not require the presence of counsel because the defendant’s right to counsel attaches only at the time adversary judicial proceedings have been initiated against him by way of a formal charge. See Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.
The judgment of the trial court is reversed on the one issue appealed from said judgment, suppression of the results of the neutron activation test. The cause is remanded for further proceedings.
MR. CHIEF JUSTICE HASWÉLL and JUSTICE HARRISON and SHEA concur.
|
[
-14,
-8,
-3,
22,
-12,
-58,
-20,
26,
-46,
59,
-7,
-14,
32,
-10,
-6,
-18,
12,
1,
29,
-34,
-16,
-41,
-59,
41,
-39,
-30,
-29,
-29,
-60,
41,
-15,
-61,
23,
-97,
43,
31,
38,
14,
4,
39,
14,
31,
28,
-35,
24,
-39,
-20,
24,
-44,
26,
30,
-5,
20,
-26,
-27,
-14,
32,
33,
38,
27,
-31,
2,
-11,
12,
36,
34,
-16,
32,
4,
-32,
46,
-6,
-36,
-6,
6,
-1,
-52,
-5,
-28,
20,
-30,
0,
16,
6,
20,
-65,
-118,
-24,
15,
16,
28,
22,
16,
-46,
-58,
-49,
18,
-44,
-7,
-7,
-11,
-35,
23,
17,
-15,
45,
-40,
50,
69,
0,
8,
1,
-12,
14,
23,
29,
5,
17,
33,
40,
-13,
14,
39,
19,
-2,
-95,
90,
-19,
32,
6,
-9,
12,
3,
-47,
-28,
-6,
-11,
-16,
-50,
16,
35,
1,
59,
8,
-9,
18,
33,
0,
20,
51,
-48,
-16,
25,
48,
-10,
-54,
27,
-39,
-9,
22,
27,
20,
34,
6,
9,
-4,
-2,
-21,
-3,
-39,
17,
18,
-8,
60,
54,
21,
6,
-30,
14,
57,
-6,
-38,
23,
-2,
-17,
-61,
7,
-22,
13,
38,
-47,
-60,
3,
-16,
11,
-3,
27,
29,
30,
-57,
51,
-3,
36,
-19,
-73,
28,
31,
41,
71,
11,
26,
-56,
-5,
19,
-24,
-58,
-33,
8,
6,
-9,
-18,
-53,
32,
-8,
13,
-20,
-63,
16,
-6,
-72,
32,
41,
16,
-22,
-15,
-50,
-30,
-1,
-7,
-25,
-8,
-22,
-13,
25,
12,
32,
-38,
-31,
-53,
-37,
4,
-35,
2,
30,
-14,
-21,
25,
11,
51,
5,
-3,
-12,
14,
20,
15,
-5,
1,
-28,
-28,
7,
45,
24,
9,
-68,
-34,
-37,
7,
0,
-19,
2,
10,
-28,
-36,
-13,
30,
-29,
-32,
38,
-42,
4,
27,
-4,
-22,
-32,
5,
6,
37,
-69,
11,
-6,
49,
53,
-8,
14,
-15,
-1,
-19,
35,
-41,
11,
36,
-14,
-51,
58,
28,
25,
-27,
-19,
68,
51,
16,
-1,
-38,
22,
-65,
-1,
-51,
14,
5,
11,
17,
42,
2,
8,
-21,
-30,
-67,
38,
-20,
-5,
-9,
-23,
-19,
47,
15,
37,
29,
54,
-45,
-65,
2,
-8,
34,
-1,
11,
-14,
-13,
-12,
39,
-59,
24,
42,
-18,
29,
-49,
-58,
4,
-43,
-19,
-11,
-44,
-58,
13,
-10,
63,
18,
41,
23,
30,
11,
16,
33,
0,
-13,
-47,
35,
24,
-4,
13,
-8,
-17,
-18,
4,
-12,
0,
-31,
26,
26,
21,
3,
21,
29,
50,
41,
26,
-7,
-1,
-36,
-35,
3,
-26,
28,
-35,
-27,
43,
-1,
10,
-7,
-27,
-21,
-16,
-10,
6,
-18,
45,
-8,
-10,
23,
19,
39,
36,
24,
-38,
-19,
-7,
-16,
-48,
21,
-5,
36,
-65,
-78,
-25,
-56,
-6,
31,
8,
-33,
-8,
-22,
26,
-11,
3,
-63,
0,
63,
11,
-38,
-34,
4,
0,
-3,
-2,
-10,
19,
33,
47,
-57,
5,
27,
81,
-12,
-50,
-25,
1,
-30,
-35,
24,
-4,
-71,
26,
-56,
-14,
13,
0,
3,
-5,
-30,
24,
36,
12,
-37,
-4,
35,
-63,
39,
-4,
-59,
21,
-45,
15,
-35,
3,
67,
-10,
7,
2,
39,
-55,
10,
-1,
0,
-63,
-63,
-40,
0,
56,
-40,
-20,
32,
36,
35,
11,
23,
10,
-12,
-3,
-44,
-20,
56,
-15,
32,
25,
-39,
74,
-21,
0,
18,
-2,
-28,
108,
-16,
59,
27,
-52,
-5,
6,
-34,
6,
-16,
45,
21,
-4,
-14,
37,
-24,
42,
0,
-47,
-26,
-34,
7,
-14,
52,
44,
-18,
-28,
-9,
18,
-12,
-42,
61,
-30,
-20,
8,
57,
-18,
58,
-21,
39,
13,
0,
36,
68,
-40,
-48,
39,
-14,
1,
-19,
-13,
-4,
-23,
20,
9,
-31,
-38,
-49,
-70,
-57,
-10,
21,
37,
31,
28,
-31,
10,
-59,
43,
-51,
39,
-21,
-18,
-7,
-59,
29,
-19,
-62,
21,
-30,
-16,
-51,
-30,
22,
-29,
10,
-43,
38,
30,
4,
-62,
-60,
-26,
19,
12,
26,
-26,
23,
-15,
-24,
12,
38,
55,
27,
-32,
-15,
51,
-22,
3,
-26,
40,
12,
16,
0,
-22,
8,
23,
-8,
28,
54,
21,
35,
-35,
-42,
-23,
23,
0,
-21,
1,
14,
25,
18,
-34,
-47,
2,
-15,
12,
-52,
-22,
12,
22,
-22,
30,
0,
22,
53,
1,
-11,
3,
26,
-15,
21,
13,
35,
-4,
25,
-14,
-6,
-17,
-34,
65,
-15,
-56,
-30,
-20,
9,
34,
-59,
-61,
14,
-90,
20,
-13,
-10,
-42,
-54,
-32,
17,
43,
-22,
-5,
-19,
-15,
12,
21,
-37,
45,
52,
1,
-16,
75,
-20,
24,
-9,
46,
-11,
-8,
60,
-22,
-19,
3,
29,
-5,
-9,
16,
-22,
20,
-56,
-38,
-15,
28,
57,
30,
-66,
-20,
23,
78,
7,
-7,
5,
85,
16,
-40,
-27,
-44,
-48,
-21,
22,
0,
-5,
6,
18,
-3,
-1,
0,
-18,
-54,
-13,
15,
-10,
19,
65,
-42,
-19,
9,
4,
-43,
-3,
19,
56,
1,
7,
3,
-9,
10,
13,
-12,
48,
-24,
47,
49,
17,
44,
38,
3,
8,
-2,
60,
-46,
64,
54,
23,
-5,
-11,
-3,
7,
-18,
-6,
-1,
-25,
44,
-10,
5,
-29,
13,
-1,
29,
-66,
-35,
-8,
-30,
-1,
32,
-23,
16,
-11,
30,
-15,
14,
-20,
5,
63,
30,
-13,
40,
0,
62,
-6,
41,
61,
3,
-11,
26,
-18,
3,
-6,
-33,
16,
5,
70,
-33,
-4,
-7,
-28,
-21,
41,
48,
15,
6,
63,
-3,
-23,
10,
66,
-41,
34,
-35,
-11,
-1,
21,
-8,
21,
8,
-40,
-5,
4,
-18,
0,
88,
-26,
-55,
-11,
-7,
-5,
10,
16,
13,
11,
-39,
-20,
30,
-33,
-22,
89,
43,
-42,
46,
56,
10,
-26,
-20,
-20,
5,
0,
21,
17,
-2,
-9,
10,
-1,
-3,
22,
16,
35,
5,
-28,
-21,
-37,
-76,
75,
-37,
43,
6,
-19,
-56,
-31,
-27,
-21,
17,
-49,
-7,
21,
-13,
86,
39,
38,
21,
-30,
-27,
17,
52,
-12,
-14,
42,
22,
18,
26,
-18,
8,
21,
-30,
-10,
24,
-2,
-34,
-10,
11,
4,
35,
14,
26,
-39,
21,
-48,
-15,
-57,
17,
26,
-42,
-3,
4,
-13,
13,
-32,
3,
17,
0,
-8,
-2,
-35,
-24,
-27,
-33,
25,
-4,
42,
-20,
-56,
-35,
5,
33,
47,
-17,
40,
31,
-3,
-22,
-61,
-9,
45,
-20,
13,
-13,
-45,
14,
13,
30,
55,
-8,
6,
-57,
2,
12,
-23
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Plaintiffs appeal from the order of the Yellowstone County District Court which granted judgment against the plaintiffs in their action to enforce the terms of a covenant not to compete against the defendants. The main issue in this appeal is whether the covenant against competition falls within a statutory exception to the code’s prohibition against restraints on trade.
The plaintiffs filed a complaint seeking enforcement of a covenant not to compete contained in a dissolution of partnership agreement made with defendant, Gary Sullivan. The defendants filed separate answers and a joint motion for partial summary judgment. The court granted the defendant’s motion and on March 23, 1979, the parties filed a stipulation that the partial summary judgment should act as a final judgment against the plaintiffs. On April 6, 1979, the court found that the stipulation was made with good cause and granted judgment to the defendants against the plaintiffs. The plaintiffs appeal this judgment.
Since this action never proceeded to trial, the following statement of facts is taken from undisputed facts stated in the appellate briefs and papers filed by the parties in District Court.
Plaintiff, Art Fredriksen, and defendant, Gary Sullivan, engaged in the sale of industrial chemicals in the State of Montana in 1975. On April 13, 1976, they formalized their relationship in a partnership agreement. Sullivan made sales for the partnership, which was called Treasure Chemical, until June 30, 1976 when a dissolution of partnership agreement was signed. The agreement provided that the business should belong to Fredriksen and that he should acquire all of Sullivan’s interest in the profits, assets, and goodwill of the partnership. Sullivan was to receive $27,500 for his entire interest in Treasure Chemical and he further agreed not to compete with Fredriksen in the sale of chemicals where the partnership business had been transacted. On the same date, Fredriksen incor porated Treasure Chemical and entered into a sales agreement with Sullivan whereby Sullivan would receive a commission for sales made for the newly formed corporation.
Sullivan made sales for Treasure Chemical, Inc., until the fall of 1977 when he terminated his sales representative agreement and acquired an interest in a North Dakota business called Team Laboratory Chemical Corporation.
David Leinwand, who also has been named as a defendant in this action, signed a sales representative agreement with Treasure Chemical, Inc., on August 18, 1976. The agreement made Lein-wand the exclusive salesman for Treasure Chemical in a large territory of Montana. Leinwand terminated this agreement on September 1, 1978, and thereafter began working with Team Lab.
Plaintiffs, Treasure Chemical, Inc., and Art Fredriksen, filed a complaint seeking to enforce the covenant against competition contained in the dissolution of partnership agreement. The complaint named Gary Sullivan, David Leinwand, and Team Laboratory Chemical Corporation as defendants, and sought damages, a temporary restraining order, and a permanent injunction against the sale of chemicals by the defendants in some thirty-two Montana counties named in the complaint. The defendants filed separate answers and a motion for partial summary judgment.
The court set a date for a hearing and the parties filed briefs on the motion. The court order filed February 1, 1979, dismissed Treasure Chemical, David Leinwand, and Team Lab from the action, denied the request for a temporary restraining order, and found the covenant not to compete void outside the Billings city limits. The court ordered further proceedings to determine whether Fredriksen was entitled to damages for breach of the covenant.
On March 23, 1979 the parties filed a stipulation stating that no significant sales were made in Billings and that the partial summary judgment should act as a final judgment against the plaintiffs. The court’s judgment of April 6, 1979 stated that the stipulation was made with good cause and granted judgment for the defendants against the plaintiffs. The plaintiffs appeal this judgment.
The plaintiffs contend the District Court’s determination that the code limits the operation of a covenant not to compete to the boundaries of a single city or town was an unduly narrow construction of sections 28-2-704 and 28-2-705, MCA and that these sections authorize the enforcement of any covenant which has reasonable geographic limitations.
We do not accept the plaintiff’s contention. The test of reasonableness provides a general guide to courts which do not have the benefit of a statute governing the scope of restrictive covenants. See Henderson v. Jacobs (1952), 73 Ariz. 195, 239 P.2d 1082, 1086. See also 17 C.J.S. Contracts, § 246, at 1122 and cases cited therein. Here, however, we are presented with a question of statutory interpretation.
Montana code contains provisions determining the geographical range of covenants not to compete. Section 28-2-703, MCA, prohibits restraints on trade:
“Any contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided for by 28-2-704 or 28-2-705, is to that extent void.”
Exceptions to this general prohibition are stated in the following sections:
“One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or part thereof so long as the buyer or any person deriving title to the goodwill from him carries on a like business therein.” Section 28-2-704, MCA.
“Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted or within a specified part thereof.” Section 28-2-705, MCA.
Sections 28-2-703, et seq., MCA, have been modeled after sections 1673, et seq., California Civ.Code. We have already determined that our interpretation of these sections will be guided by the construction given them by the Supreme Court of California. See J.T. Miller Co. v. Model (1978), 176 Mont. 49, 575 P.2d 1321. California decisions interpreting its civil code have concluded that its statutes should be construed literally to deny enforcement of covenants that exceed the boundaries of a single city or county. Edwards v. Mullin (1934), 220 Cal.Rptr. 379, 30 P.2d 997; Du Bois v. Padgham (1912), 18 Cal.App. 298, 123 P.207; Franz v. Bieler (1899), 126 Cal.Rptr. 176, 56 P. 249; City Carpet Beating, Etc., Works v. Jones (1894), 102 Cal.Rptr. 506, 36 P. 841. The decision in City Carpet supra, provides the reasoning for this interpretation:
“The Code . . . eliminates from the controversy arising upon such restriction the question as to what is a reasonable territorial limit, by specifically defining it, and thus preventing litigation; and in this the statute is wise and salutary, even though, in certain cases — possibility in this one, — it gives the purchaser less than he bought, and less than he might enjoy without violating the interests of the public.”
The covenant not to compete contained in the parties’ dissolution of partnership agreement was not limited to a single city. It stated:
“. . . Sullivan, hereby agrees ... that he, the retiring partner, will not, . . . compete with the continuing partner either directly or indirectly in the sale of chemicals within the same cities or towns within the State of Montana where the partnership business had been transacted for a period of three (3) years . . .”
The plaintiffs’ complaint named 32 Montana counties in which the partnership allegedly transacted business.
Section 28-2-705 governs the restrictive covenant contained in the parties’ dissolution of partnership agreement. This section explicitly limits such covenants to the boundaries of a single city or town. The parties do not seriously dispute the trial court’s determination that Billings is the location where the plaintiffs transact business. Therefore, the court’s order declaring the covenant “void to the extent that it purports to operate outside of the city limits of Billings” is affirmed.
The plaintiffs also assert that material questions of fact existed when the court granted the defendants’ motion for a summary judgment. They argue that the trial court should have determined whether the plaintiffs conducted business in all 32 counties alleged in their complaint and whether Gary Sullivan controlled Team Lab or merely had an interest in Team Lab. Neither of these questions are material here in light of the fact that the covenant is restricted to the city limits of Billings, and that the plaintiff’s sale of chemicals in Billings is insignificant.
We note in passing that the decision here might have been entirely different were there not a statute which so clearly limited the scope of covenants not to compete to a single city. Intercity and interstate businesses are common today and under some circumstances, it is reasonable to enforce covenants that cover the boundaries of an entire state. See Monogram Industries, Inc. v. Sar Industries (1976), 134 Cal.Rptr. 714, 64 Cal.App.3d 692; Esmark Inc. v. McKee (1978), 118 Ariz. 511, 578 P.2d 190. Sections 28-2-703, et seq., MCA, were enacted in 1895, and to the present day have not been amended. We recommend to the legislature that it consider whether changes are now appropriate.
Judgment is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
-35,
-8,
16,
41,
0,
11,
-14,
-1,
-34,
20,
-29,
37,
12,
10,
-15,
-12,
-8,
-21,
13,
12,
17,
-10,
-24,
-34,
26,
12,
-2,
-22,
24,
9,
13,
-16,
-12,
-53,
-67,
45,
-16,
40,
3,
-40,
13,
-13,
50,
17,
-16,
6,
74,
-60,
52,
-24,
25,
-15,
40,
-5,
-16,
6,
9,
7,
37,
39,
-14,
-40,
45,
42,
52,
-54,
25,
31,
45,
-4,
-27,
9,
-3,
-16,
17,
-69,
18,
-4,
-25,
-7,
23,
16,
52,
-15,
-82,
9,
-57,
22,
11,
-4,
-80,
-1,
6,
6,
-38,
-1,
33,
-29,
-61,
27,
51,
-13,
8,
13,
-37,
35,
3,
37,
58,
55,
-42,
2,
-29,
-68,
-1,
-9,
-45,
-4,
37,
33,
10,
14,
-21,
37,
31,
-15,
33,
-57,
12,
-31,
-1,
23,
-8,
12,
8,
20,
9,
2,
-19,
6,
30,
-7,
-6,
0,
-1,
6,
-24,
-6,
-13,
-22,
-71,
-16,
42,
61,
15,
-47,
11,
-12,
73,
-58,
21,
-7,
23,
31,
-34,
-10,
9,
-36,
-4,
12,
-16,
-12,
-47,
-22,
5,
-9,
39,
-30,
-25,
46,
21,
15,
-40,
8,
26,
20,
-32,
28,
-5,
-15,
32,
-16,
-27,
-6,
-76,
-54,
-5,
43,
-40,
31,
-27,
9,
-83,
41,
-11,
47,
-9,
32,
2,
29,
-3,
-22,
13,
-50,
-10,
4,
-13,
34,
2,
-24,
-1,
4,
-40,
32,
-48,
-48,
40,
-20,
-7,
-65,
-38,
74,
-1,
-8,
-10,
-5,
-12,
23,
24,
25,
-8,
-64,
-45,
9,
8,
-63,
-2,
-8,
1,
19,
-46,
-31,
43,
29,
-27,
-9,
-59,
26,
-46,
16,
7,
13,
-55,
-12,
-1,
-68,
-21,
-42,
-2,
-14,
-54,
-1,
37,
34,
11,
-46,
10,
5,
1,
-8,
-27,
5,
0,
-42,
0,
32,
4,
44,
-76,
4,
-16,
28,
40,
-77,
90,
-17,
10,
-78,
-29,
14,
-2,
-75,
-15,
-1,
-14,
11,
-37,
16,
2,
-20,
-84,
-23,
-41,
-12,
-53,
12,
3,
39,
59,
-47,
29,
60,
41,
45,
-41,
-13,
51,
8,
81,
13,
7,
29,
-12,
-47,
-33,
-18,
7,
-23,
19,
81,
-6,
-11,
46,
-1,
-21,
16,
69,
17,
15,
18,
-13,
0,
-32,
19,
25,
30,
16,
1,
-90,
14,
0,
-24,
-26,
-63,
-50,
22,
-10,
15,
0,
60,
-50,
29,
37,
13,
-11,
-10,
15,
-18,
-47,
11,
-42,
-41,
55,
-28,
24,
25,
23,
82,
-29,
-8,
-19,
-18,
10,
21,
36,
49,
38,
-8,
-23,
-39,
34,
37,
-42,
-30,
-13,
-18,
51,
-36,
-22,
-4,
-17,
-15,
-48,
-61,
22,
-48,
-18,
-43,
12,
0,
0,
-6,
-26,
-36,
28,
-54,
29,
-3,
-61,
48,
-40,
70,
-8,
-18,
-1,
6,
-14,
15,
-41,
37,
-21,
-20,
-21,
-29,
64,
0,
-17,
20,
36,
6,
35,
62,
-33,
52,
-1,
45,
14,
31,
15,
8,
4,
50,
-3,
-32,
-17,
-11,
68,
-41,
-24,
9,
-38,
35,
53,
59,
-25,
-14,
-41,
17,
-15,
13,
-21,
16,
32,
-10,
29,
-5,
-19,
15,
0,
-4,
-26,
25,
30,
33,
-72,
-10,
7,
-13,
2,
-5,
-60,
-79,
-7,
57,
0,
64,
55,
-29,
-8,
15,
31,
65,
34,
-6,
32,
-17,
-8,
71,
-76,
9,
15,
-11,
-42,
32,
-18,
-12,
-30,
22,
39,
2,
-43,
48,
23,
-48,
76,
35,
47,
0,
13,
-20,
6,
0,
-35,
14,
39,
-18,
17,
3,
59,
-51,
35,
31,
18,
10,
5,
37,
15,
79,
-10,
-13,
48,
41,
-33,
26,
69,
22,
18,
-3,
22,
96,
-50,
30,
30,
10,
31,
22,
0,
0,
-26,
-8,
24,
24,
13,
-51,
1,
-11,
22,
-14,
12,
-46,
-4,
-22,
-4,
-4,
-7,
-25,
24,
-19,
-20,
29,
-33,
15,
7,
-14,
-27,
-41,
-40,
7,
36,
-13,
-37,
0,
-18,
-41,
-41,
-8,
22,
-23,
37,
11,
-17,
17,
36,
-31,
9,
43,
-16,
31,
-13,
37,
5,
-43,
30,
-17,
35,
48,
-38,
95,
-53,
-36,
55,
-25,
-3,
-22,
8,
-36,
-1,
-3,
51,
32,
62,
47,
-1,
-50,
20,
19,
32,
-1,
-3,
-26,
23,
-10,
-7,
-12,
6,
-37,
-7,
14,
27,
20,
72,
3,
5,
5,
28,
-31,
49,
0,
7,
107,
17,
0,
0,
-74,
26,
-15,
-4,
-18,
7,
0,
-45,
74,
-42,
-41,
0,
-10,
-10,
18,
-25,
-29,
28,
-5,
73,
24,
-15,
14,
2,
3,
9,
68,
0,
-52,
-27,
-17,
0,
5,
-44,
75,
-68,
-51,
-6,
-81,
-4,
-3,
11,
-13,
0,
30,
0,
45,
44,
48,
-17,
25,
33,
28,
6,
-38,
-74,
5,
59,
2,
9,
48,
-4,
10,
-40,
1,
35,
-16,
-21,
16,
-34,
31,
22,
-10,
-39,
-2,
-70,
16,
13,
-5,
0,
-2,
-6,
-23,
53,
-41,
8,
-26,
39,
11,
-13,
7,
23,
-49,
-17,
32,
-26,
7,
13,
-30,
16,
-5,
-12,
-15,
11,
4,
32,
45,
-3,
1,
49,
-37,
56,
7,
-13,
93,
24,
-8,
7,
-12,
7,
56,
-43,
-24,
-1,
-12,
53,
22,
-27,
12,
6,
-27,
35,
18,
-86,
-52,
23,
10,
-3,
-45,
-90,
18,
20,
18,
-27,
-13,
-28,
-18,
7,
-3,
-25,
42,
-4,
6,
24,
-1,
3,
-44,
17,
-10,
-57,
16,
15,
-22,
-28,
-27,
-9,
-39,
-38,
15,
10,
19,
10,
34,
-46,
-59,
0,
63,
2,
-9,
-89,
23,
11,
6,
-37,
-23,
-23,
-11,
18,
7,
-15,
37,
0,
-27,
-52,
23,
0,
21,
0,
-29,
-35,
-24,
-9,
-19,
31,
32,
1,
8,
6,
-66,
-39,
-48,
-1,
-54,
83,
-43,
-8,
-4,
-10,
-42,
4,
54,
-3,
47,
-10,
16,
0,
24,
35,
21,
1,
15,
-4,
26,
-13,
21,
8,
57,
10,
-31,
-30,
-7,
-6,
27,
-37,
37,
38,
37,
-37,
8,
61,
-17,
-44,
-17,
-30,
36,
17,
-22,
-3,
52,
21,
2,
-15,
-76,
4,
-27,
-9,
7,
50,
49,
-69,
52,
-36,
10,
6,
2,
24,
-9,
9,
55,
10,
25,
-54,
-25,
35,
-3,
16,
8,
36,
-40,
-40,
-10,
-57,
-28,
-8,
-30,
31,
0,
3,
-12,
27,
-26,
-10,
-1,
-29,
22,
11,
-24,
22,
-44,
3,
-67,
32,
-21,
0,
-32,
12,
-71,
-5,
-1,
-51,
-29,
-20,
31,
39,
-21,
39,
-17,
-16,
-10,
-2,
-9,
-15,
28,
-30,
3,
-75,
17,
-23,
-27,
5,
7
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
This is an appeal from a judgment entered in the Rosebud County District Court, Sixteenth Judicial District, disposing of the marital property of the parties.
The parties herein were married on November 30, 1948. At the time of the marriage the husband owned a ranch near Ashland, Montana. This ranch was sold after the parties’ marriage and the proceeds used to acquire the parties’ current ranch property from the wife’s parents. The ranch was purchased in the joint names of the parties in 1949. During the marriage the parties worked together on this ranch. In 1952 an additional 172 acres were purchased as an addition to the ranch. A house was built on this property during the same year.
In March 1978 respondent husband petitioned for dissolution of the marriage. The dissolution was granted without consent, but the District Court in its decree reserved the property division for later adjudication. Trial was held on this matter on April 16, 1979. After making findings of fact and conclusions of law, the District Court entered judgment on May 25, 1979, effectively rendering a 60/40 percent split of the marital property, respectively between the husband and wife. From this judgment the wife appeals.
The issues presented to this Court for review are as follows:
1. Did the District Court err in its findings and conclusions that the husband had contributed 60 percent and the wife 40 percent to the accumulated marital assets?
2. Did the District Court err by not giving sufficient weight to the contributions of appellant?
3. Did the District Court err by abusing its discretion in concluding, as a matter of law, the method of purchase of the marital estate, or in failing to allow appellant the benefit of meeting a good faith party purchase offer?
4. Did the District Court err in failing to consider respondent’s dissipation of assets?
5. Did the District Court err in failing to award attorney fees to appellant?
The substance of this appeal is whether the District Court abused its discretion in the distribution of the marital estate.
“It is well settled in Montana that a district court has far reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of that discretion is shown . . . The criteria for reviewing the district court’s discretion is: Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances.” (Citations omitted.) Zell v. Zell (1977), 172 Mont. 496, 570 P.2d 33, 35.
Appellant contends that it was an abuse of discretion for the District Court to only award her 40 percent of the marital property instead of the one-half interest she sought. She contends that her contributions as a homemaker, as well as ranch hand and handy person, when coupled with respondent’s dissipation of marital assets, entitle her to a 50 percent share of the marital property.
“Although the District Court may equally divide the marital assets, such a distribution is not mandated by section 40-4-202, MCA . . . Section 40-4-202 is flexible and it vests a good deal of discretion in the District Court. . . We have stated, before and after the adoption of the statute, that each case must be looked at indi vidually, with an eye to its unique circumstances ...” (Citations omitted.) In re Marriage of Aanenson (1979), 183 Mont. 229, 598 P.2d 1123.
The duty of the District Court is to consider the statutory criteria and equitably apportion the marital assets. To accomplish this, it should consider the duration of the marriage and the age, occupation, amount and sources of income, vocational skills, employability, estate, and the liabilities and needs of each party. In re Marriage of Aanenson, supra, 598 P.2d at 1123.
We find that the District Court here properly followed the dictates of section 40-4-202, MCA. The findings of a trial judge will not be disturbed on appeal where they are based on substantial though conflicting evidence, unless there is a clear preponderance of evidence against such findings. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. Here, the findings of the District Court are based on substantial evidence and the evidence does not preponderate against them. The District Court, therefore, did not abuse its discretion in apportioning the marital estate.
Appellant’s next contention essentially questions the District Court’s valuation and method of purchase of the marital property. Appellant seeks to preserve and maintain the family ranch and submits that this Court has approved the desirability of allowing her to do so, most recently in In re Marriage of Jacobson (1979), 183 Mont. 517, 600 P.2d 1183. She argues that the District Court’s distribution of the marital property and valuation thereof prevent her from purchasing the ranch.
A court in distributing the property of the marriage is to consider the current value of all property acquired during the marriage. Kruse v. Kruse (1978), 179 Mont. 79, 586 P.2d 294, 298. The District Court did precisely that here. It accepted testimony, albeit conflicting, as to the current value of the property before concluding the property was worth $566,200. We find that this procedure was not unreasonable.
Appellant is correct that Montana cases have accepted the premise that a ranch or farm should be kept intact and operated as a unit. This policy is reflected in the following decisions involving the disposition of farming and ranching property: In re Marriage of Jacobson, supra; In re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361; Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d 987; Hunnewell v. Hunnewell (1972), 160 Mont. 125, 500 P.2d 1198.
“It must be remembered that the primary right to be considered in disposing of marital property is .the right of each party to an equitable apportionment of the marital assets. While it is the policy of the courts of this state to avoid splitting up a ranch or forcing its sale where there is any reasonable alternative, that policy, however commendable, cannot be used to override [a party’s] right to an equitable share of the marital property.” In re Marriage of Jacobson, supra, 600 P.2d at 1187-88.
In the present case both parties were given the option to buy the other’s respective share of the ranch provided that the right be exercised within six months of the judgment. Other than this condition, it was left up to the parties to reach their own terms on a purchase. We can find no abuse of discretion in the District Court’s methods.
The final contention of appellant is that the District Court erred in failing to award her attorney fees.
Section 40-4-110, MCA, provides:
“The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment ...”
Here the District Court, after considering the financial resources of both parties, determined that each should bear their own legal costs. It was not an abuse of discretion to do so.
The judgment of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, SHEA and SHEEHY concur.
|
[
-14,
36,
-8,
-17,
-45,
-40,
16,
70,
-7,
6,
-30,
15,
6,
16,
18,
-68,
-8,
-28,
31,
2,
-50,
-13,
-85,
54,
45,
26,
3,
-23,
-27,
-31,
20,
21,
-35,
-28,
26,
24,
-20,
45,
15,
11,
-28,
16,
-24,
-4,
-9,
10,
33,
-43,
-53,
13,
-9,
-74,
22,
11,
58,
-24,
-58,
36,
-37,
-41,
10,
1,
-31,
35,
45,
36,
2,
-23,
-9,
-48,
-17,
-28,
-31,
-45,
-11,
-6,
66,
19,
-11,
18,
14,
-20,
4,
0,
-3,
-38,
34,
53,
-18,
-3,
-62,
1,
21,
39,
-26,
6,
0,
2,
2,
13,
-39,
-32,
3,
34,
-20,
-3,
-28,
-1,
50,
2,
7,
-27,
-33,
10,
-5,
72,
-37,
-40,
-24,
-57,
39,
-2,
-1,
5,
44,
-48,
18,
65,
18,
-16,
-25,
12,
-6,
-52,
23,
-95,
-25,
-68,
-31,
15,
41,
-12,
59,
-47,
28,
-4,
21,
-87,
-4,
-11,
8,
44,
2,
41,
63,
-75,
-1,
-18,
12,
-42,
6,
-16,
-72,
39,
17,
22,
27,
0,
-10,
-12,
14,
-11,
-30,
0,
29,
-9,
36,
1,
-9,
22,
5,
29,
21,
-45,
-22,
38,
20,
-9,
-49,
-30,
-36,
-62,
41,
-12,
32,
14,
39,
44,
-32,
-21,
5,
-1,
43,
78,
-2,
-1,
27,
-14,
30,
-2,
-29,
-12,
7,
-10,
-47,
-33,
-32,
-4,
-35,
-26,
18,
13,
-32,
-10,
-23,
-27,
-18,
28,
11,
6,
-43,
55,
45,
-24,
13,
-20,
-24,
-23,
-19,
-11,
15,
-43,
1,
-9,
24,
26,
-6,
-30,
-15,
-4,
-64,
-17,
-22,
52,
60,
-6,
25,
30,
5,
-14,
25,
-4,
-20,
40,
8,
-36,
35,
-44,
14,
45,
31,
53,
23,
0,
-9,
-38,
-4,
18,
-9,
-20,
25,
-25,
5,
2,
-22,
65,
26,
46,
15,
13,
-21,
-52,
0,
-9,
4,
-29,
-7,
-69,
7,
-40,
-18,
14,
26,
35,
20,
-27,
-33,
-9,
26,
8,
20,
-25,
-20,
7,
-2,
-4,
-27,
-16,
-11,
12,
36,
6,
12,
11,
-18,
3,
-9,
-25,
-34,
44,
-6,
10,
-15,
35,
57,
-9,
-15,
-33,
-51,
-37,
19,
-28,
28,
26,
13,
12,
-1,
36,
1,
41,
-3,
33,
-29,
24,
-14,
-44,
32,
-35,
-21,
-8,
13,
22,
-1,
-42,
-46,
29,
30,
-56,
-18,
-15,
3,
52,
60,
18,
28,
-2,
-13,
32,
10,
5,
-32,
-17,
-16,
36,
24,
10,
-4,
-20,
-33,
13,
-20,
29,
18,
33,
42,
-34,
19,
-28,
-54,
3,
-11,
41,
-24,
-11,
-31,
-32,
49,
-45,
-57,
-4,
32,
-31,
39,
-36,
32,
22,
10,
-4,
-7,
45,
34,
-6,
0,
-6,
-36,
-33,
6,
-5,
-8,
30,
-14,
22,
-2,
-13,
73,
8,
26,
9,
-60,
55,
9,
24,
2,
63,
-33,
-52,
0,
-1,
40,
6,
-14,
9,
-27,
-7,
-2,
20,
67,
-27,
-24,
-18,
97,
5,
22,
-31,
12,
-66,
-6,
-35,
3,
4,
26,
30,
46,
54,
39,
47,
-36,
-27,
20,
-27,
-31,
-41,
-37,
8,
31,
45,
-47,
4,
13,
47,
12,
20,
0,
-2,
-19,
-7,
3,
-33,
54,
-49,
-1,
18,
25,
-13,
31,
-13,
7,
3,
-46,
17,
-35,
-57,
75,
-9,
-31,
19,
55,
-24,
26,
43,
-10,
4,
-20,
-29,
-6,
-20,
46,
4,
16,
19,
-54,
57,
-12,
-14,
-36,
20,
30,
39,
17,
-19,
25,
2,
-3,
44,
-28,
58,
-16,
-63,
-34,
3,
26,
-76,
-28,
31,
0,
-29,
-48,
-10,
-19,
-26,
16,
31,
15,
-2,
20,
-17,
-39,
-84,
-63,
51,
-1,
-7,
0,
-34,
63,
-29,
-25,
-4,
3,
32,
-21,
26,
-4,
23,
-30,
4,
32,
61,
33,
11,
-9,
21,
7,
-7,
-48,
-58,
-55,
-7,
-53,
-11,
-59,
-14,
-20,
19,
15,
1,
-34,
8,
-16,
3,
2,
1,
29,
-22,
49,
9,
0,
-69,
25,
-11,
-4,
-6,
-5,
-87,
36,
-15,
-16,
40,
20,
30,
-18,
10,
79,
2,
39,
38,
21,
10,
-5,
-13,
22,
-1,
3,
10,
0,
-25,
10,
-31,
34,
-74,
34,
23,
-2,
-21,
39,
-8,
-6,
-8,
11,
13,
32,
-11,
30,
20,
-9,
17,
25,
55,
5,
21,
-8,
-39,
8,
35,
54,
11,
21,
6,
20,
-7,
17,
-33,
-11,
-14,
7,
4,
0,
-21,
16,
40,
22,
-20,
9,
15,
-22,
-3,
-12,
10,
-39,
36,
26,
27,
29,
4,
0,
45,
-13,
-14,
-40,
6,
-21,
18,
-16,
-19,
-45,
-18,
13,
-13,
-50,
-50,
-8,
-15,
-33,
-28,
14,
0,
44,
14,
33,
1,
31,
29,
7,
1,
-3,
54,
11,
-4,
4,
-23,
1,
-5,
-1,
30,
-5,
69,
-6,
-35,
-47,
5,
18,
21,
11,
3,
-28,
-61,
-28,
21,
39,
-54,
40,
12,
-65,
38,
-3,
-46,
-29,
-29,
-18,
-14,
43,
-1,
-5,
-7,
-9,
-37,
-10,
43,
7,
-8,
-28,
-31,
-22,
-6,
4,
-28,
27,
19,
53,
21,
-27,
-39,
13,
-49,
8,
-6,
-31,
-5,
-29,
-32,
-30,
50,
8,
11,
6,
39,
-51,
30,
-23,
22,
35,
-22,
18,
8,
36,
-45,
-19,
55,
8,
-22,
47,
-30,
-10,
30,
10,
-6,
58,
30,
-2,
39,
-13,
-54,
39,
30,
-8,
-51,
8,
10,
-42,
0,
6,
-32,
-54,
-11,
39,
-17,
34,
-13,
25,
17,
-1,
-9,
26,
10,
6,
-17,
-25,
35,
-11,
42,
-2,
6,
-5,
6,
-10,
0,
41,
35,
29,
37,
14,
-24,
8,
41,
16,
25,
13,
-19,
11,
15,
-5,
-5,
-62,
1,
-27,
-5,
44,
5,
-9,
-36,
-13,
-15,
-32,
-9,
-36,
-34,
-38,
-46,
-22,
-42,
12,
13,
-13,
10,
66,
11,
15,
30,
9,
14,
33,
-7,
-21,
-21,
-8,
16,
2,
-27,
-7,
42,
-5,
-2,
-82,
32,
0,
-18,
-29,
-17,
-6,
24,
-5,
26,
-30,
-11,
13,
11,
-41,
29,
19,
20,
18,
-29,
3,
24,
36,
38,
6,
-27,
0,
-7,
36,
73,
-21,
28,
7,
4,
2,
-25,
-29,
0,
-59,
0,
-8,
-20,
3,
-48,
-3,
54,
-27,
-25,
-31,
-93,
-2,
-6,
3,
24,
30,
38,
-21,
-10,
7,
18,
0,
-11,
29,
-15,
33,
13,
-24,
-35,
39,
-24,
1,
11,
-1,
30,
4,
-30,
30,
-23,
0,
-43,
-19,
-37,
42,
-4,
-2,
19,
19,
0,
-37,
-25,
28,
-13,
-17,
0,
-22,
12,
15,
-1,
-31,
28,
11,
-4
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
Plaintiffs appeal from a final judgment of the District Court, sitting without a jury, in the Sixteenth Judicial District, in and for the County of Rosebud, in an action for refund of taxes paid under protest to the City of Forsyth. The District Court determined that the statute of limitations, section 93-2607(4), R.C.M. 1947, now section 27-2-203, MCA, barred plaintiff’s claim and that the disputed land was annexed to the City of Forsyth by acquiescence.
Plaintiffs, Arthur and Dorothy Gregory, are the owners of three parcels of real property located in Rosebud County, Montana. The Gregorys purchased these parcels in 1964 and received a quitclaim deed as title. The deed described the parcels by metes and bounds and referred to one of the parcels as part of “Lord’s Addition to Forsyth, Montana.” Lord’s Addition was platted and dedicated to the City of Forsyth in 1907. The deed did not specifically designate whether the other two parcels, “the disputed property” comprising one acre of land, were within the City of Forsyth.
From the time of the purchase until 1976, both the City of For-syth and the Gregorys considered the disputed property to be inside the municipal boundaries of the city. Property taxes were regularly assessed and paid; city ordinances were enforced; and city services, including sewer, water, fire and police protection, were provided.
City maps dating back to 1938 and 1945 show the disputed property to be within city limits. Also, in 1961 after publication of notice, all of the city ordinances were recodified, and the disputed property was again included within city boundaries.
In 1967, for reasons unrelated to this appeal, Gregory obtained an abstract of title for his land and checked for mortgages, liens and satisfaction of liens. The abstract did not indicate whether the property was inside the city limits. In 1972, a plat of the Gregory’s land was prepared by a surveyor. The plat expressly defined the property, including the disputed portion, as “a parcel of land situated in the City of Forsyth, Montana.
It was not until 1976 that the Gregorys first suspected that part of their property was outside the city limits. In a conversation with a local resident, Gregory was told that his property was not annexed to the city. Upon investigation, Gregory discovered that the disputed property was not part of the dedicated Lord’s Addition and had never been statutorily annexed. Thereafter the Gregorys paid their city taxes under protest.
On January 20, 1977, the Gregorys filed suit for recovery of the taxes paid under protest and for a judicial declaration that the disputed property is outside the city boundaries and therefore nontaxable. At trial on August 15, 1978, the only witness was Arthur A. Gregory. He testified that he thought the disputed property was inside the city limits by reason of the city maps he had observed posted on the door of the County Attorney’s Office.
The District Court held, among other things, that the 1964 deed and 1967 abstract constituted means of knowledge sufficient to put the Gregorys upon inquiry as to the extent of the city limits and that their failure to discover the true facts within the time prescribed by the statute of limitations, section 93-2607(4), R.C.M. 1947 barred their claim. The court also concluded that the disputed property was annexed by acquiescence. The plaintiffs appeal from that final judgment.
Three issues have been presented to this Court for review:
1. Whether failure to comply with the statutory annexation procedures for towns and cities defeats the city’s claim that the subject property is within the city limits of Forsyth, Montana.
2. Whether the court erred in holding that the Gregorys’ claim was barred by the statute of limitations.
3. Whether the court erred in holding that the Gregorys acquiesced to the inclusion of their land in the city and were therefore estopped from asserting the contrary.
The parties’ argument for the most part is a shallow swipe at the second and third issues, i. e. the statute of limitations, diligence, discovery requirements and acquiescence. The first issue was carefully avoided and there was no in depth treatment of the necessity of compliance with statutory annexation procedures.
The general rule is that municipal boundaries may be extended only as prescribed by law. 2 McQuillin, Municipal Corporations § 7.14 at 317 (3rd rev. ed. 1979), Since the jurisdiction of a city to extend its boundaries is a special power, conferred by the legislature, a substantial compliance with all the mandatory requirements of statutory law is essential. McQuillin, supra, § 7.29 at 422; Pool v. Town of Townsend (1920), 58 Mont. 297, 304, 191 P. 385, 386. In Pool, it was argued that certain land was brought within the town boundaries by common law dedication and also by the filing of a plat which displayed the land as within the Town of Townsend. This Court rejected these contentions and held:
“ ‘In this state there is no common law in any case where the law is declared by the Code.’ Sec. 6213, Rev. Codes [Section 12-104, R.C.M.1947, now section 1-1-108, MCA], If then, the Codes provide the means by which an addition becomes a part of a city or town and subject to its jurisdiction, the means so provided must be held to be exclusive.” Pool, supra, at 304, 191 P. at 386.
Montana’s adherence to this view was recently underscored in Missoula Rural Fire District v. City of Missoula (1975), 168 Mont. 70, 540 P.2d 958. The City of Missoula urged that earlier law which provided for summary annexation of land “wholly surrounded” by a city (section 11-403, R.C.M.1947, now sections 7-2-4501 to 7-2-4504, MCA) was sufficient authority for annexation by that method. This Court held that since summary annexation was not provided for under the Planned Community Development Act of 1973 (section 11-514, R.C.M.1947, et seq., now section 7-2-4701, MCA, et seq.), the stated purpose of which was to develop a system for “adding to and increasing city boundaries” (section 11-515, R.C.M.1947, now section 7-2-4703, MCA), it was excluded as a method of annexation. Missoula Rural Fire District, supra, at 74, 540 P.2d at 960-961.
There are important policy considerations which favor at least substantial compliance with statutory annexation procedure. The legislative history of Montana’s annexation laws demonstrates that public notice and participation (particularly for the persons affected by a proposed annexation) are cardinal. There is, however, no argument to be heard that the statutory scheme for annexation is not exclusive.
The second issue concerns the application of the statute of limitations by the trial court, i. e., section 93-2607(4), R.C.M.1947, now section 27-2-203, MCA.
Plaintiffs contend that the statute did not start to run until discovery of the facts by the aggrieved party. Ordinary diligence should be exercised in discovery. Ray v. Divers (1928), 81 Mont. 552, 264 P. 673, 675.
The gist of the City’s argument is that plaintiffs did not exercise due diligence because of their failure to read the deed and abstract carefully. But these documents do not indicate whether the land is within the city limits. Rather, the city map formed the basis for plaintiffs’ conclusion that the land was inside the city.
Reasonable diligence would require inspection of the city map and ordinance. These were the only direct official evidence of the City’s boundaries. As such, any reliance on them was justified. Any other method would involve, first, an assumption the ordinance was defective, and second, a search of all annexation proceedings. Clearly, this is beyond the pale of reasonable diligence.
In fact, plaintiffs’ discovery of the defect in the ordinance came as a result of a conversation with a local resident. The City contends that for the purposes of the statute of limitations, section 93-2607(4), R.C.M.1947, the “discovery” requirements are identical to Israelson v. Mountain Tractors Co. (1970), 155 Mont. 69, 73, 467 P.2d 149, 152, wherein this Court explained that an aggrieved party must show some intentional concealment and diligence before he can rely on the discovery exception to the general rule that the statute begins running upon the occurrence of the fraud. Here, plaintiff admitted that there had been no concealment, and thus plaintiffs’ cause of action expired in 1966.
Before addressing the parties’ points of argument as to when the two year statute of limitations, section 93-2607(4), R.C.M.1947, now section 27-2-203, MCA, started running, the issue of whether this statute of limitations applies to plaintiffs’ claim deserves discussion. Section 27-2-203, MCA provides:
“Actions for relief on ground of fraud or mistake. The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”
In Opp v. Boggs (1948), 121 Mont. 131, 140, 193 P.2d 379, 385, this Court stated: “This section of our statute ‘applies only to actions for fraud or mistake within the common acceptance of the term.’ ”
“Mistake” is defined in Black’s Law Dictionary as “some unintentional act, omission or error arising from ignorance, surprise, imposition or misplaced confidence ... A Mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted.” Black’s Law Dictionary 1152 (4th Ed. 1968). The “mistake” provision of section 93-2607(4) has rarely been discussed by this Court. In a suit for reformation and enforcement of a contract for the sale of corporate assets based on mutual mistake, this Court deemed the statute to be applicable and to have commenced running when the plaintiff realized the mistake. Favero v. Wynacht (1962), 140 Mont. 358, 373, 374, 371 P.2d 858, 866.
The mistake in the instant case was a mutual mistake of fact. Both the City and the Gregorys (as well as their predecessors in title) erroneously believed the disputed property to be inside the city limits. Application of section 93-2607(4) thus appears to be appropriate.
The Gregorys contend the two year statute of limitations commenced running when they discovered in 1976 that the disputed land was not annexed or part of the dedicated Lord’s Addition. They maintain that reasonable diligence would not require inquiry and ascertainment of facts inconsistent with the city ordinances and maps. The critical question is whether the Gregorys had either constructive or actual notice before 1976 of facts which should have put them on inquiry. Falls Sand and Gravel Co. v. Western Concrete, Inc. (D.Mont. 1967), 270 F.Supp. 495, 503-504. The District Court found the 1964 quitclaim deed and 1967 abstract constituted such notice. The deed merely described the parcels conveyed by metes and bounds. Apart from locating the parcels, the fact that one parcel was designated as part of Lord’s Addition to Forsyth has no independent significance. As stated in American Min. Co. v. Basin & Bay State Min. Co. (1909), 39 Mont. 476, 482, 104 P. 525, 526:
“We think the better rule to be established in this state is that the recording of the instrument is to be considered with other facts and circumstances in determining whether the plaintiff is to be charged with notice, either actual or constructive, but that the fact of recording alone will not so charge him.”
Here, the record is clear that at least since 1938 the city maps and ordinances defined the disputed property to be within the City of Forsyth. Mr. Gregory testified that he relied on these official documents. The abstract likewise contains nothing to put the Gregorys on inquiry. The last page of the abstract indicates that all taxes were paid as of that date. It is also notable that in 1972, when the Gregorys’ property, including the disputed portion, was platted by a professional surveyor, the land was defined as “a parcel of land situated in the City of Forsyth, Montana.” These circumstances, in combination with the City’s active and continuing exercise of jurisdiction over the disputed property fail to constitute notice of any error in the designation of municipal boundaries.
The City lays great stress on the fraud cases construing the “discovery” element in section 93-2607(4). Israelson, supra; Lasby v. Burgess (1930), 88 Mont. 49, 289 P. 1028; and Kerrigan v. O’Meara (1924), 71 Mont. 1, 227 P. 819 are cases that require an affirmative showing of intentional concealment as a condition precedent to recovery under section 93-2607(4). However, these cases are all fundamentally distinguishable in that fraud, unlike mistake, is an intentional act of misrepresentation. Mistake, by definition, is unintentional.
Annexation can only be accomplished by statutory procedures as set forth, supra. However, we do not wish to leave the impression that acquiescence has no place in the law.
“The general rule that property owners are estopped by reason of long-continued acquiescence to question directly the validity of the extension of boundaries of a municipality seems to be well settled.” 56 Am.Jur.2d Municipal Corporations § 80 at 134 (1971). See also, 2 McQuillin, supra, § 7.09 at 294. Although Montana has never recognized this principle, other jurisdictions have applied the doctrine of acquiescence to after-the-fact challenges of allegedly defective annexation proceedings. Annot., 101 A.L.R. 581 (1936); 18 A.L.R.2d 1255 (1951). Acqueiscence has also been found to be probative in ascertaining the location of municipal boundaries which, by their description, are uncertain or obscure. 2 McQuillin, supra, § 7.05 at 280, § 7.09 at 294; Town of Brookline v. Town of Newfane (1966), 126 Vt. 179, 224 A.2d 908, 911; Crescent City v. Dodd (1933), 131 Ca.App. 153, 21 P.2d 140, on rehearing, 18 P.2d 999, 1001. However, “neither usage and custom nor contemporaneous construction will prevail over a plainly designated boundary line.” 56 Am.Jur.2d Municipal Corporations § 41 at 103; Town of Stephens City v. Zea (1963), 204 Va. 88, 129 S.E.2d 14, 18. As stated in McQuillin, “the rule as to establishment of municipal boundaries by acquiescence does not apply where the period of acquiescence is short or where the boundary involved is clearly otherwise than claimed. ” McQuillin, supra, § 7.09 at 295 (emphasis added). See also, La Porto v. Village of Philmont (N.Y.App. 1976), 39 N.Y.2d 7, 382 N.Y.S.2d 703, 705, 346 N.E.2d 503, 506; Crescent City, supra, at 1001; Town of Brookline, supra, 224 A.2d at 911.
In the instant case, the boundaries of the City of Forsyth are clear. The City concedes that they do not encompass the disputed property. Furthermore, the Gregorys are not, by this suit, attacking the validity of annexation proceedings. No such proceedings were ever conducted. Therefore, the doctrine of acquiescence could not apply to these facts.
Therefore, we find the City of Forsyth failed to substantially comply with the annexation procedure and the property in dispute is not, therefore, subject to municipal taxes.
Under the circumstances of this case, the statute of limitations, section 93-2407(4), now 27-2-203, MCA, is deemed to have commenced running in 1976.
The doctrine of acquiescence does not apply to boundaries that are easily or clearly defined.
The judgment of the District Court is vacated and the cause remanded for further proceedings in conformity with this opinion.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, SHEA and SHEEHY concur.
|
[
-6,
54,
29,
-4,
16,
-32,
42,
-3,
1,
45,
-23,
11,
-2,
7,
11,
-46,
-46,
-19,
29,
-10,
-14,
-12,
-76,
-8,
36,
9,
17,
-37,
-41,
42,
1,
-38,
-58,
33,
2,
75,
-27,
15,
57,
9,
7,
52,
-44,
-35,
-2,
64,
0,
25,
7,
37,
-32,
-32,
7,
22,
-18,
-38,
-20,
29,
-11,
-1,
-14,
15,
-3,
51,
64,
22,
-30,
-36,
22,
-47,
16,
-16,
5,
-62,
3,
-17,
22,
-16,
-37,
-5,
6,
30,
22,
-24,
-6,
-22,
-31,
-33,
50,
-18,
-11,
-4,
33,
30,
-7,
-7,
16,
0,
-25,
-16,
-7,
-23,
14,
31,
-20,
-28,
-58,
-33,
80,
-3,
-21,
0,
13,
-19,
-2,
42,
0,
-3,
52,
13,
32,
-22,
0,
-6,
-1,
-1,
-7,
-6,
-34,
24,
7,
-23,
15,
-47,
16,
-39,
-4,
-32,
-15,
26,
58,
-27,
17,
-44,
17,
-6,
40,
-33,
-39,
-23,
-16,
85,
25,
37,
-25,
-33,
8,
10,
27,
-35,
25,
16,
22,
-2,
-5,
-1,
-8,
-16,
0,
-18,
6,
-10,
-11,
8,
60,
25,
-29,
-4,
-47,
-23,
-5,
-30,
30,
-7,
19,
23,
23,
-18,
-10,
-28,
27,
-58,
3,
9,
14,
5,
39,
-16,
-31,
-26,
10,
22,
64,
9,
0,
36,
49,
11,
20,
1,
-4,
-67,
4,
18,
11,
-21,
27,
-17,
-1,
-26,
0,
14,
-29,
-4,
-7,
-17,
-11,
31,
46,
5,
-37,
23,
19,
-11,
11,
-1,
-9,
16,
-12,
-17,
4,
23,
5,
-2,
3,
70,
-27,
-42,
-6,
-11,
-58,
-47,
-22,
49,
22,
-43,
28,
-17,
14,
-28,
52,
14,
-1,
-59,
21,
5,
-18,
-40,
-36,
-1,
21,
63,
16,
22,
-36,
-47,
28,
-51,
-20,
32,
0,
-23,
14,
32,
28,
36,
-9,
53,
-24,
18,
-16,
-5,
-45,
14,
6,
13,
18,
-32,
25,
17,
-18,
37,
4,
17,
17,
-71,
-24,
12,
51,
33,
-17,
1,
-61,
-14,
-15,
-44,
28,
0,
39,
8,
9,
26,
64,
-26,
6,
19,
-4,
-1,
-23,
-5,
28,
-2,
-36,
44,
29,
-11,
-7,
-45,
0,
-16,
-5,
3,
8,
14,
79,
49,
-36,
1,
18,
56,
-7,
11,
-54,
22,
1,
-7,
12,
-21,
-37,
19,
32,
26,
-12,
-31,
-46,
-23,
-30,
-28,
-25,
-7,
-30,
-2,
29,
9,
7,
-36,
-10,
-2,
11,
13,
-9,
-67,
-43,
-6,
101,
-61,
32,
-102,
28,
-58,
-24,
5,
-33,
41,
50,
-26,
45,
-9,
-11,
-19,
-18,
26,
-33,
26,
-66,
-10,
-4,
6,
-45,
13,
-1,
-43,
31,
-31,
-10,
29,
-17,
-11,
9,
34,
31,
46,
-12,
-69,
0,
-43,
70,
18,
-28,
14,
-15,
46,
-33,
1,
48,
-14,
-29,
8,
-42,
30,
7,
9,
-2,
1,
-38,
-39,
11,
27,
8,
31,
-14,
57,
-16,
-61,
-2,
19,
47,
-42,
24,
-53,
63,
5,
-4,
28,
17,
-35,
0,
-19,
-44,
-6,
-24,
49,
39,
12,
11,
51,
-26,
-37,
-25,
-7,
-19,
-20,
-38,
-2,
7,
58,
-27,
6,
38,
71,
7,
27,
-15,
-15,
-9,
21,
-9,
-17,
41,
-53,
-33,
43,
-2,
17,
17,
16,
-25,
-12,
-63,
22,
-36,
-8,
19,
3,
1,
37,
26,
27,
-7,
-7,
1,
3,
-87,
-32,
-3,
-37,
-3,
-10,
72,
47,
-76,
14,
-20,
-23,
-55,
28,
11,
68,
-11,
5,
41,
37,
17,
58,
-83,
22,
0,
-8,
-13,
-9,
6,
-54,
-35,
-2,
-24,
-22,
-51,
-89,
-4,
26,
49,
49,
4,
-32,
21,
-6,
-27,
-37,
-50,
25,
-38,
15,
-14,
-75,
54,
-32,
-67,
-27,
15,
14,
-43,
-12,
18,
-23,
35,
57,
38,
20,
-9,
15,
-9,
9,
-40,
6,
21,
-6,
-49,
3,
-29,
-13,
22,
-25,
0,
-26,
-4,
6,
-43,
-56,
-42,
-7,
-9,
8,
-11,
36,
4,
6,
-15,
-25,
41,
-34,
5,
16,
3,
7,
-39,
-4,
-21,
-28,
-23,
44,
1,
-17,
-15,
23,
37,
1,
0,
-28,
22,
1,
1,
-24,
-1,
1,
-8,
1,
22,
11,
2,
-41,
-16,
49,
-6,
1,
10,
13,
23,
-43,
5,
-35,
65,
6,
20,
5,
-22,
-64,
64,
-29,
6,
51,
18,
-33,
-29,
2,
26,
-15,
23,
-17,
40,
19,
1,
18,
-12,
-8,
3,
14,
-21,
-15,
1,
36,
19,
-22,
40,
0,
3,
20,
-49,
8,
-17,
53,
13,
33,
21,
15,
-37,
42,
14,
8,
20,
-35,
32,
-28,
-16,
1,
-45,
-6,
37,
6,
-31,
-24,
33,
-27,
-64,
-73,
50,
-20,
54,
3,
17,
41,
-9,
50,
-24,
2,
-12,
20,
13,
30,
20,
-31,
-37,
-1,
71,
38,
-17,
31,
28,
-11,
-67,
-4,
8,
6,
-32,
13,
27,
-66,
-49,
64,
51,
-30,
32,
-47,
-25,
17,
-35,
-40,
10,
-3,
1,
20,
54,
35,
15,
-24,
12,
8,
-16,
42,
52,
-5,
-1,
0,
6,
-30,
-61,
-16,
20,
11,
-4,
25,
-6,
-12,
-7,
-59,
-11,
19,
-67,
5,
-51,
-6,
-57,
4,
0,
19,
16,
31,
-47,
30,
-8,
56,
-23,
-8,
0,
-4,
34,
-22,
-16,
76,
-10,
-37,
-13,
-3,
-28,
37,
43,
-4,
36,
15,
-4,
26,
-9,
-58,
-15,
8,
-9,
-36,
11,
38,
-63,
-52,
-34,
-44,
-32,
-22,
-12,
18,
-26,
4,
-26,
22,
-68,
1,
16,
52,
15,
-15,
31,
-6,
-31,
51,
70,
9,
-14,
2,
-7,
-2,
75,
-23,
69,
56,
2,
3,
-8,
48,
71,
6,
9,
-1,
10,
-2,
41,
-19,
-56,
-17,
-53,
50,
-3,
42,
-26,
11,
11,
-18,
-44,
-8,
-2,
-7,
-20,
-7,
-13,
-54,
19,
-29,
18,
29,
3,
-41,
4,
-30,
27,
-5,
-2,
-43,
-35,
-73,
-34,
-9,
-29,
-45,
61,
67,
36,
2,
-111,
-15,
-43,
14,
-1,
46,
-25,
43,
-86,
64,
-4,
16,
40,
3,
-11,
0,
-2,
31,
-19,
-24,
2,
9,
-8,
3,
12,
-57,
1,
5,
64,
41,
10,
45,
22,
8,
-18,
-30,
-10,
-40,
5,
14,
-3,
-7,
18,
-4,
5,
30,
5,
-11,
-61,
-16,
26,
29,
19,
42,
-15,
23,
64,
18,
16,
23,
-25,
15,
7,
28,
26,
25,
-45,
-21,
55,
-20,
-1,
-19,
53,
15,
-21,
2,
4,
-25,
37,
-7,
-25,
-51,
30,
-26,
42,
-31,
77,
-24,
-40,
7,
2,
-39,
28,
60,
-23,
47,
-5,
25,
-28,
-47,
-1,
35
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Defendant appeals from an order of the Ravalli County District Court revoking a ten-year suspended sentence and ordering him to prison. Defendant remains free on his own recognizance pending this appeal.
Defendant attacks the order revoking his suspended sentence on the grounds that the revocation order was based upon the results obtained from a search of his home and a polygraph examination administered to him. The search was conducted pursuant to an unlimited search provision, and the polygraph examination was performed pursuant to an unlimited polygraph examination provision both of which were placed in the original judgment as condi tions of probation. Defendant attacks these provisions on several constitutional grounds.
There is no statutory authority directly authorizing either of the two questioned provisions. Section 46-18-201(b), MCA, however, permits a trial court, when placing a person on probation, to impose any reasonable restrictions on the defendant during the period of probation. These conditions must, of course, be reasonably related to the rehabilitation of the defendant or the protection of society. Section 46-18-201(a)(1), MCA. Furthermore, section 46-18-202, MCA, is a broad grant of authority permitting a trial court to impose additional restrictions which may be considered necessary to carry out the dual objectives of rehabilitation of the defendant and the protection of society. Imposition of conditions under the express or implied authority of the statutes, must, of course, comply with the broad objectives for the laws of punishment contained in our constitution. Article II, Section 28 provides that “[l]aws for the punishment of crime shall be founded on the principles of prevention and reformation . . .’’For two cases interpreting these statutory provisions, see State v. Babbitt (1978), 175 Mont. 433, 574 P.2d 998; and State v. Petko (1978), 177 Mont. 229, 581 P.2d 425.
Balanced against express or implied statutory sentencing powers are federal and state constitutional provisions which must be considered as part of the sentencing process. Needless to say, a sentence imposed under a liberal interpretation of a sentencing statute which in itself grants broad sentencing powers to a trial court does not necessarily pass constitutional muster. Constitutional provisions may well have a countervailing influence on the legality of the sentence imposed.
We have not directly ruled on the constitutionality of a search provision, and we have not ruled upon or even discussed the constitutionality of a polygraph provision. In relation to search provisions however, in State v. Means (1978), 177 Mont. 193, 581 P.2d 406, dicta in the majority opinion would seem to hold that a search provision is not constitutionally offensive. We note, however, that the opinion turned on the conclusion that probable cause to search existed independent of the search provision. To the extent that Means can be interpreted as permitting an unlimited search provision as a condition of probation, it is hereby expressly overruled.
The circumstances underlying the imposition of the questioned provisions shed little light on why the conditions were imposed. The search and polygraph provisions were inserted in the judgment in this case as part of a ten-year suspended sentence given to defendant after he had entered a guilty plea to selling a lid of marijuana to an acquaintance. Also required as part of this sentence was that defendant spend weekends for a year in the county jail.
The presentence investigation report prepared by the probation officer recommended that a warrantless search provision and a polygraph provision be placed in the judgment if the court saw fit to suspend the sentence. The report recommended that law enforcement officers have the right to search defendant’s person or his residence or vehicle at any time, and also that the defendant subject himself to a polygraph examination whenever the probation officer made the demand. The challenged provisions in the judgment provide:
“b. That the defendant shall submit to a search of his person, premises or vehicles at any time by lawful authorities, without a search warrant.
“c. That the defendant shall submit to a polygraph examination by qualified examiners at any time, upon the request of any law enforcement officer and the results of such examination may be used in Court, without objection by the Defendant, against the Defendant in any proceeding in which the Defendant is involved.”
Defendant raises other issues, but we dispose of this appeal by deciding that the unlimited polygraph condition is overly broad and thus an invalid condition of probation, and that the unlimited warrantless search warrant is an unconstitutional condition of probation.
The record is silent as to why the trial court imposed either of the conditions. It is possible, of course, that it relied upon the recommendations of the probation officer but even those recommendations provide no insight as to why the probation officer considered them to be necessary or desirable. At the hearing on the petition to revoke the suspended sentence, we are provided a glimpse as to why the probation officer recommended the polygraph condition, but nothing in relation to the search provision. While being cross-examined by defense counsel the following exchange appears:
“A. What was the purpose of having the polygraph condition?
“B. Well, it’s a condition that we have recently imposed, for, well, I don’t know, just to go along with the system, I guess.”
The reference to the “system” is left unexplained.
The same hearing transcript provides little insight as to the trial court’s attitude toward a polygraph condition, but nothing as to why he thought such condition to be necessary in this case. During an exchange with defense counsel after the trial court had denied all of defendant’s motions and ruled that defendant was in violation of his probation, the trial court stated:
“THE COURT: Well, I understand your position, and you may have that in the Supreme Court. If I couldn’t have put a condition like this on this man, he would be in the prison today, and if the Supreme Court says we can’t do it, there will be a lot more going to prison.”
The search provision in the judgment substantially follows the probation officer’s recommendation; but the polygraph provision in the judgment extended the recommendation that the probation officer have the right to demand a polygraph examination to permit “any law enforcement officer” to demand a polygraph examination at any time. The transcript of the original sentencing is not before this Court, and thus we cannot tell whether the local prosecutor or the sheriff recommended the expanded language in the polygraph provision, or whether it was simply inserted in the judgment at a later time. The clerk of court’s minutes reflect only that a search provision and polygraph provision were to be imposed as conditions of probation. It is customary, however, for the county attorney to prepare the judgment of conviction after the formal sentencing, and it appears that he expanded upon the recommendation of the probation officer by making himself as well as other law enforcement officers the beneficiaries of the right to demand that defendant take a polygraph examination.
With this background of the search and polygraph provisions, we proceed next to a summary of the events occurring between the time of original imposition of the search and polygraph conditions and the time defendant’s probation was revoked.
One of the conditions of the ten-year suspended prison sentence was that defendant spend weekends in jail for one year. Weekends were ordered so that defendant could have regular employment during the week. But shortly after he was sentenced, defendant was offered employment as an outfitter during big game hunting season, which required that he also be gone on weekends. He approached the local sheriff and they agreed that defendant would spend no time in jail during the hunting season, but at the termination of his employment, defendant would make up the lost weekends by serving a continuous period in the county jail.
During the time defendant was out on probation, the sheriff or his deputies came to defendant’s home and place and employment more than 20 times to check on his activities. The record does not reflect whether they conducted any searches of his home during his absence. But they were ready for him when he returned home at the termination of his outfitting employment.
While defendant was working as an outfitter, a friend of his was living in and taking care of defendant’s home. Defendant had, while employed as an outfitter, returned home once or twice a month. Defendant returned home at approximately 6:30 a. m. on October 22, 1977, after having worked all night, and the same day at approximately T.00 p. m., the sheriff and his deputy came to the defendant’s home and, pursuant to the authority conferred by the warrantless search provisions searched the defendant’s home.
The search uncovered some marijuana, but defendant’s friend immediately assumed responsibility for it and claimed it was his. The officers apparently accepted this claim of ownership for they did nothing to implicate defendant at this time. On this same day defendant, in compliance with the agreement with the sheriff, turned himself in to the Ravalli County jail to commence serving a continuous 26-day jail sentence. It was while defendant was in jail that the county attorney invoked the polygraph examination provision and demanded that defendant take the examination.
Defendant received an out of state employment offer while he was serving the 26 days, and he therefore filed a motion in District Court asking the court to reduce the suspended sentence and modify the condition as to jail time. This motion started the wheels spinning in relation to the former search which the sheriff had made of the defendant’s home. The county attorney invoked the polygraph provision and demanded that before the trial court take any action on defendant’s motion to change the sentence, that defendant take a polygraph examination in relation to the marijuana which had been seized by the sheriff pursuant to the warrant-less search provision. Defendant was sent to Columbia Falls to be examined by Richard Walch, a former law enforcement officer.
The examiner ran two tests on defendant. Between the first and second test he accused the defendant of not telling the truth in relation to his personal use of marijuana while on probation. In response to this accusation defendant admitted that while on probation he had occasionally used marijuana. The examiner then ran the second test and the results, he concluded, were consistent with defendant’s assertion that although he had occasionally used marijuana, he had nothing to do with the marijuana found in his home pursuant to the sheriff’s warrantless search. The examiner then sent the test results to the county attorney.
Based on the admissions by defendant that he occasionally used marijuana while on probation the county attorney filed a petition to revoke defendant’s probation and send him to prison. Before the hearing, however, defense counsel filed a motion to suppress the testimony to be offered in relation to finding the marijuana in defendant’s home and the testimony of the polygraph examiner as to the defendant’s admission to him while in the course of conducting the polygraph examination. Defendant urged several constitutional grounds, but the trial court, without ever addressing the defendant’s contentions, overruled them and ruled that defendant had violated the conditions of his probation.
We are provided no insight as to what evidence the trial court relied upon in determining that defendant had violated his conditions of probation. It simply declared that defendant had violated his conditions of probation, and upon that basis revoked the suspended sentence and ordered him to prison. The trial court did, however, change the sentence to a degree. After revoking the ten-year suspended sentence, it suspended two of the ten years. Defendant then orally announced his intention to appeal, and the trial court released him on his own recognizance pending the outcome of this appeal.
Defendant first contends that the unlimited warrantless search clause provision violates his Fourth Amendment rights under the United States Constitution and also violates the right of privacy and search and seizure provisions of the 1972 Mont.Const., Art. II, §§ 10 and 11. He takes an absolutist position that these constitutional provisions absolutely forbid any kind of warrantless search provision as a condition of probation. Most of the cases he cites, however, at least impliedly uphold the constitutionality of a war-rantless search provision, but have struck down the particular clauses involved as being overly broad and thus in violation of the probationer’s Fourth Amendment rights. We recognize, however, that these cases were not decided on particular search and seizure provisions of state constitutions, and neither did the cases face an express “right of privacy” provision as set forth in our own constitution.
In relation to the warrantless search provision, the State presents an equally absolutist contention that any warrantless search provision, no matter how broad, is per se constitutional. The State argues that a person laboring under a conviction and not yet released from State supervision, even though not in actual physical custody, has no constitutional rights at all. This absurd position is unworthy of further discussion. The real thrust of the State’s argument, however, is a recognition that the warrantless search clause imposed in this case is unconstitutional, but that one which is properly framed and properly limited, can and should pass constitutional muster.
The State suggests five factors which can be considered and added into the tailoring of a warrantless search clause to satisfy constitutional objections. First, the right to search should be limited to parole or probation officers or law enforcement officers searching at the request of the parole or probation officer; second, that any search must be reasonable as to time, place and manner of execution; third, that searches should be permitted only if there is an underlying factual foundation justifying the search (a type of probable cause); fourth, that the uses to which the products of a search can be put should be strictly limited; and fifth, that no search provision can be used as an instrument of harassment or intimidation. Unfortunately, however, the State fails to apply this criteria to the search clause imposed here, for such application would require a determination that it is unconstitutional.
First, the search warrant was not limited to a parole or probation officer; rather, it permitted any law enforcement officer to conduct the search. Second, the provision did not limit searches to reasonableness in terms of time, place and manner of conducting the search; rather, it permitted a search at any time the mood should strike. Third, the provision did not contain some form of underlying probable cause before one could conduct a search; rather, it permitted a search with no cause whatsoever. Fourth, the provision did not limit the uses to which the products of a warrant-less search could be put; rather, it was silent as to the extent of use of the products of a search. Fifth, it did not specify that a search could not be used for purposes of harassment or intimidation. Clearly, by the State’s suggested standards, the warrantless search clause imposed here struck out on all counts. As we shall later explain our holding, the search provision imposed here is patently unconstitutional.
The thrust of defendant’s attack on the polygraph examination provision is that it constitutes both an illegal search and seizure and a violation of his rights against self-incrimination. He contends that both the federal and state constitutions are violated. As to the illegal search and seizure contention, defendant has provided no authority. Nor do we believe, as we understand those terms, that a search and seizure in the constitutional sense, is involved. But requirement that defendant provide answers to questions asked of a polygraph examiner certainly has the potential of requiring the probationer to incriminate himself. The question however, is whether the probationer has the same rights as a person not laboring under such a disability.
The right of the State to impose a search provision or polygraph provision on a probationer exists only to the extent that a probationer can legitimately be denied his full constitutional protections and guarantees as a result of his status as a probationer. The argument most often advanced in the face of a claim that a probationer’s constitutional rights were abridged, is that a defendant standing before a court for sentencing and having accepted the probationary conditions without objection, has waived his rights to later assert that any of the conditions imposed may be unconstitutional. But a waiver theory ignores the realities of the situation.
Regardless of the condition imposed, if that is the sentencing court’s decision, the probationer has little or no say in the matter. He can refuse to accept the conditions imposed and go to prison, or he can accept the conditions and remain in society subject to the State’s supervision for the probationary period. A waiver theory however, does not comport with the requirements of Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, that a waiver is invalid unless it be made knowingly, intelligently, and voluntarily. A choice cannot be termed voluntary where the alternative is prison and even more restrictions. As the Court stated in State v. Page (App.1976), 115 Ariz. 131, 564 P.2d 82, a defendant does not choose whether he is going to prison or will be placed on probation; that choice is primarily that of the sentencing court.
Nor can it be reasonably argued that for purposes of probation, a probationer is in constructive custody and therefore he can be subjected to the same impositions on his freedoms as can one actually in jail or prison. The simple fact is, as the Page court noted, a probationer is for the most part existing in the mainstream of society and he may well be living with family or friends whose rights also must be respected.
On the other hand, if probation is to be successful, the rights of the probationer must be balanced with those of society. In this context, a probationer must expect that his constitutional rights may be justifiably limited during the probationary period for he cannot reasonably expect that he will be as free as a citizen not suffering such a disability. We agree with the Page court, therefore, that a search provision can be appropriately tailored to and “reasonably related to the prevention of future criminal activity.” And the same is true of a polygraph provision. A probationer has no right to expect that he is entitled to the same self-incrimination protections as is a person not operating under such disability.
In State v. Age (1979), 38 Or.App. 501, 590 P.2d 759, the court rejected a probationer’s argument that a polygraph provision violated her rights against self-incrimination. In holding that a probationer had a statutory duty to “answer all reasonable inquiries of the probation officer” the Court plugged this duty into the requirement that the probationer take a polygraph examination:
“. . . Since the probationer must answer all reasonable inquiries of the probation officer or risk revocation, we see no impermissible extention of that condition in requiring that the probationer submit to polygraph tests. The intrusion into the area of self-incrimination is no greater; its main function appears to be the added psychological factor that if the probationer fails to tell the truth, he will be detected. Such purpose would be in furtherance of a successful probation.” 590 P.2d at 763.
The reference in Age, to the duty of the probationer to answer “all reasonable inquiries of the probation officer or risk revocation, . . .” has a statutory basis in Oregon (ORS 137.540(1) (e) cited in Age, 590 P.2d at 763.) No statute in this State directly imposes such a duty on a probationer. Nonetheless, a probation program could hardly be successful if it did not require a probationer to answer all reasonable inquiries of his probation officer. The added factor that a polygraph examination may occasionally be used while in the process of requiring these reasonable inquiries, does not offend the self-incrimination provisions of the federal or state constitution.
The vital questions in relation to search provisions or polygraph examination provisions, compel this Court to subject the provisions to “special scrutiny” to determine whether or not they are tailored to and fall within the ambit of a reasonable limitation on the probationer’s “otherwise inviolable constitutional rights.” In recognizing this duty the court in United States v. Consuelo-Gonzalez (9th Cir. 1975), 521 F.2d 259, stated:
“. . .it must be recognized that probationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free, it is also true that these limitations in the aggregate must serve the ends of probation. Conditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety.” 521 F.2d at 265.
Indeed, when asked to rule on particular polygraph provisions or search provisions, most courts have subjected these provisions to “special scrutiny.”
Implicit in the search and polygraph provisions imposed in this case is an assumption that the prosecuting attorney and law enforcement officials are an integral part of the probation process and thus have the duty to guard and guide the probationer through the probationary process until state supervision has terminated. But neither the prosecuting attorney nor the police are part of the probationary process. One of the primary focal points in subjecting these provisions to “special scrutiny” is an examination of the provisions to determine who is given the right to demand a polygraph examination or to conduct a search. Many decisions have determined that the probation officer must be the person about whom the rights to conduct a polygraph examination, or to conduct a search, must revolve.
In State v. Hovater (1978), 37 Or.App. 557, 588 P.2d 56, as part of a plea bargain defendant agreed to take a polygraph examination either upon the demand of the district attorney or the state police. This agreement was incorporated into the judgment and later the district attorney invoked its provision and demanded a polygraph examination. The probationer attacked the provision itself, claiming that it violated her rights against self-incrimination. Although the appellate court rejected this claim, it declared in effect that neither the district attorney nor the state police are part of the probation process and thus have no right to demand that a probationer take a polygraph examination:
“The district attorney and the police are not part of the probation process. They have no direct responsibility to supervise probation or to facilitate rehabilitation of the defendant. Their primary responsibility is to ferret out crime and to prosecute the offender. In the give and take of plea negotiations the district attorney does not necessarily have rehabilitation in mind when negotiating the terms of probation. He may simply be attempting to facilitate future investigation of crimes. . . .” 588 P.2d at 59.
The courts have applied the same kind of “special scrutiny” to search provisions in holding that only the probation officer or a police officer at his special request and direction, should be entitled to conduct a search imposed against a defendant as a condition of probation.
The search provision imposed here would permit not just the probation officer but any “lawful authorities” to search the proba tioner’s home, his person, or his vehicle, at any time, and in any place and manner, and for no other reason than the mere whim or caprice of whomever decided to conduct a search. In Tamez v. State (Tex.App.1976), 534 S.W.2d 686, the Court struck down a warrantless search provision in all essentials similar to the one under attack in this case. In holding the search provision too broad in scope and thus in violation of the probationer’s Fourth Amendment rights (as well as a violation of the Texas Constitution) the court aptly characterized its effect:
“The condition imposed would literally permit searches, without probable cause, or even suspicion, of the probationer’s person, vehicle or home at any time, day or night, by any peace officer, which could not possibly serve the ends of probation. For example, an intimidating and harassing search to serve law enforcement ends totally unrelated to either his prior conviction or his rehabilitation is authorized by the probationary condition.” 534 S.W.2d at 692.
We can say no less about the effect of the warrantless search provision imposed in this case; it permitted any law enforcement official to search the defendant, his home, or his vehicle, whenever the mood struck. Such a provision is too great an infringement upon the probationer’s rights under the federal and state constitutions.
Unlimited searches as a condition of probation or parole have received the unequivocal condemnation of many courts. For example, federal decisions include: United States v. Jeffers (9th Cir. 1978), 573 F.2d 1074; United States v. Bradley (4th Cir. 1978), 571 F.2d 787 (holding by implication); and United States v. Consuelo-Gonzalez (9th Cir. 1975), 521 F.2d 259. And, state courts have done likewise. For example: Tamez v. State, supra; State v. Fisher (1978), 32 Or.App. 465, 574 P.2d 354, rev. den. 283 Or. 99 (1978); State v. Holm (1978), 34 Or.App. 503, 579 P.2d 860; State v. Batson (1978), 35 Or.App. 175, 580 P.2d 1066; State v. McGivney (1978), 36 Or.App. 885, 585 P.2d 767; People v. Jackson (1978), 46 N.Y.2d 171, 412 N.Y.S.2d 884, 385 N.E.2d 621; Basaldua v. State (Tex.1977), 558 S.W.2d 2; and People v. Huntley (1977), 43 N.Y.2d 175, 401 N.Y.S.2d 31, 371 N.E.2d 794. Several of the above cases have also discussed the situation where a parole or probation officer searches when a search provision has not been imposed by the sentencing court as a condition of probation. Needless to say, unlimited searches under this situation have also been held to be constitutionally offensive.
One primary focal point of the special scrutiny to which search provisions are subjected is to examine who are named as beneficiaries in the condition of probation as having the right to search. Several courts have directly or indirectly held that law enforcement officers have no place in the probation process and thus cannot be primary beneficiaries of a search provision. The sentencing court cannot provide this connection by thus naming law enforcement officers as having the right to search pursuant to the search provision. Federal decisions include: United States v. Consuelo-Gonzalez, supra (implied ruling); United States v. Bradley, supra (implied ruling); and United States v. Workman (4th Cir. 1978), 585 F.2d 1205 (implied ruling). State decisions include: Tamez v. State, supra (implied ruling); State v. Fisher, supra (implied ruling); Roman v. State (Alaska 1977), 570 P.2d 1235 (direct ruling); and People v. Anderson (1975), Colo., 536 P.2d 302 (direct ruling).
As we have previously stated, prosecuting attorneys and law enforcement officers are not involved in the probation process, and therefore a sentencing court may not permit them to search pursuant to either a warrant requirement or a warrantless search provision imposed as a condition of probation. To do so constitutes an infringement of one’s rights under the Fourth Amendment of the United States Constitution and Art. II, §§ 10 and 11 of our own constitution. The sentencing court cannot inject prosecuting attorneys or law enforcement officials into the probation process by granting them direct rights to search the probationer, his home, or his vehicle.
Nor is the mere whim or caprice of the probation officer sufficient to trigger the decision to search under a search provision. Several courts have directly or indirectly ruled that some kind of cause requirement must first be met before a search can be validly conducted. Federal cases include: United States v. Consuelo-Gonzalez, supra (direct ruling); Latta v. Fitzharris (9th Cir. 1975), 521 P.2d 246 (direct ruling); United States v. Bradley, supra (direct ruling); United States v. Workman, supra (direct ruling); and United States v. Gordon (9th Cir. 1976), 540 F.2d 452 (direct ruling). State decisions include: People v. Jackson, supra (direct ruling); People v. Huntley, supra (implied ruling); State v. Fisher, supra (direct ruling); Hunter v. State (1976), 139 Ga.App. 676, 229 S.E.2d 505 (implied ruling); People v. Anderson, supra (implied ruling); and State v. Simms (1973), 10 Wash.App. 75, 516 P.2d 1088 (implied ruling). The problem of course, is in arriving at an appropriate standard.
In its brief, the State suggests that “the Court should require that the probation officer have some articulable grounds for determining that a search is necessary.” Without arriving at its own conclusions as to standards, the State accurately sums up the state of the existing law:
“. . . Although the courts have been vague in formulating standards, the probation officer should have some identifiable reason that prompted him to conclude that the authority of the search' clause should be exercised. This could be information received from an informant, the police or the probation officer’s own observation that the probationer has resumed criminal conduct or has violated conditions of probation.”
Beyond this, the State adds nothing.
Two federal cases have traveled the additional step of imposing a search warrant requirement as a condition to searching a probationer. United States v. Bradley, supra; United States v. Workman, supra. In relating a search warrant requirement to a probationer, the court in Workman stated:
“. . . the special relationship between a parolee and his parole officer and society’s interest in close supervision of the parolee serve to lower the standard for determining probable cause to obtain a search warrant but that they do not eliminate the warrant requirement.” 585 F.2d at 1207.
In New York, the legislature has set forth statutory guidelines for searching probationers and parolees. N.Y.Crim.Proc.Law § 410.50 (McKinney, 1971). Section 410.50(3) allows the court to issue a search order upon a showing of reasonable cause that the probationer has violated a condition of the sentence during the period of probation. The order must be directed to the probation officer, and he may search defendant’s person or any premises in which he resides or any real or personal property which he owns or which is in his possession. The necessary condition is that a judicial officer must grant the permission to search.
Polygraph examinations as a condition of probation can be effectively contained within constitutional limits by confining the right to demand a polygraph examination to the probation officer. This will significantly reduce the potential for abuse. But confining the right to search to a probation officer only resolves part of the problem. Still unresolved are the questions of the cause requirement to conduct a search, the time, place and manner of conducting the search, and whether different standards should apply to searches of the probationer’s person, the probationer’s vehicle, or the probationer’s home.
We recognize that probationary status can and should carry with it a reduced expectation of privacy. But a probationer is living within society, not confined to a penal institution. If the trial courts do not and will not recognize this fundamental fact of life, it then devolves upon this Court to do so. We must fashion a formula, however imperfect, which reasonably balances the competing rights of society and of the individual probationer and his family and friends. A search of a probationer’s home cannot avoid invading the privacy of those with whom he may be living, whether they be immediate family, other relatives, or friends. Probationary status does not convert a probationer’s family, relatives and friends into “second class” citizens.
In State v. Means, supra, Justice Daly in his dissent, raised the flag to a problem which the courts must face and hopefully satisfactorily resolve:
“I conclude with the admonition that . . . there are many more problems related to those mentioned herein that necessarily need consideration before Montana can assume a respectable position in the matter. We must also consider the rights of those who reside with a probationer — his wife, children, mother and others. These problems do not go away by just ignoring them.” 581 P.2d at 417.
We can only assume a “respectable position” if we can give fair consideration to the rights of innocent third parties who may be caught up in the web of the probationary system or probationary process. These people are not stripped of their right of privacy because they may be living with a probationer or he may be living with them. While a probationer’s right of privacy may be justifiably diminished while on probation, the rights of these people are not so diminished. We, as well as the trial courts, would be derelict in our duties if we failed to consider the rights of these innocent others so that they are not swept away by the probationary process.
The potential harmful effects of unlimited sweeping warrantless search provisions are underscored in a note entitled: Striking the Balance Between Privacy And Supervision; The Fourth Amendment and Parole and Probation Officers Searches of Parolees and Probationers (1976), 51 N.Y.U.L.Rev. The intrusion into the lives of family and friends as well as the probationer, is particularly stressed:
“Fourth amendment protection will be diminished not only for parolees, but also for the family and friends with whom the parolee might be living. Those bystanders may find themselves subject to warrantless searches only because they are good enough to shelter the parolee, and they may therefore be less willing to help him — a sadly ironic result in a system designed to encourage reintegration into society. Moreover, the demeaning effect of arbitrary intrusions into the parolee’s privacy will be reflected in the attitudes of his relatives and friends. As a result, the parolee will suffer diminished feelings of self-worth, making his rehabilitation more difficult. In addition, warrantless parole officer searches may reinforce patterns of resentment to authority, and excessive external controls may inhibit the development of necessary internal controls: ‘a person must have the freedom to be responsible if he is to become responsibly free.’ ” (Footnotes omitted.) 51 N.Y.U.L.Rev. at 816-817.
These privacy considerations are inextricably interwoven in the relationships between a probationer and his family and friends no less than in the relationships between a nonprobationer and his family and friends. The search of a probationer’s home will inevitably affect the privacy of those with whom he is living.
One of the most important reasons for requiring a search warrant as a condition to a search is a recognition that reasonable restraints must be placed upon law enforcement officials before a search is conducted rather than simply to measure the validity of a search by a postsearch inquiry into its reasonableness. If abuses are to be discouraged, it does little good to provide postsearch judicial review, for this neither deters unreasonable searches nor remedies those which have occurred. Indeed, in all but the most blatant violations, the searching officers will be able to retrospectively point to specific facts which justified the search. Beck v. Ohio (1964), 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 147. Such is human nature, whether motivated by good or bad intentions. And that is precisely why it is considered wise if individual rights are to be valued, to place a neutral judge between the law enforcement authorities and the subject of the search. Just as the Fourth Amendment is aimed at preventing abuses, so our own constitution setting forth the ground rules for searches and seizures only upon probable cause set forth in writing has the same objective. (Art. II, § 11.) Added to this protection is the “right of privacy” expressly guaranteed by Art. II, § 10 of our own constitution. If protection of these rights is to have substantive meaning, restraints must be imposed before the search is conducted.
Postsearch review of the reasonableness of a search is hardly an effective deterrent where the rights of third persons are con cerned. A determination that a warrantless search of a probationer’s home was unreasonable provides no protection for third persons whose privacy has already been invaded by the search itself. The invasion has occurred; the damage has been done. Recognition of this fundamental problem is one of the reasons the court in Latta v. Fitzharris (9th Cir. 1975), 521 F.2d 246, imposed a search warrant requirement. Clearly, therefore, so that the legal interests of innocent third persons can be adequately protected and considered in the probationary process, we require that a search warrant must first be obtained, and it must be based on probable cause.
It is not necessary that the probable cause consist of the probationer’s personal knowledge. He may rely on information received from law enforcement personnel or from reliable citizens. But if he has relied on such information received from law enforcement personnel or reliable citizens, he must state in his affidavit precisely what information has been provided him. In the case of the private citizen, the probation officer must set forth reasons why he considers such person to be reliable.
The probation officer must, on application for a search warrant, have a reasonable basis to conclude that the probationer has violated his condition or conditions of probation, and that a search of the named place will lead to the proof needed to show that a violation had in fact occurred. This information must be presented in affidavit to a judge qualified to issue search warrants, and if he is satisfied that there are reasonable grounds to issue a search warrant, he may, in his discretion, issue a search warrant to the probation officer. In such event the probation officer may enlist the aid of law enforcement officers to assist him in the search.
In addition to the information constituting the probable cause, the probation officer shall provide information within the affidavit as to probationer’s living arrangements, that is, whether the probationer is living alone, with family, with other relatives, or with friends. Upon consideration of these factors, the judge shall impose reasonable limitations as to the time, place and manner of search. Since privacy rights of third persons may be affected by the issuance and execution of a search warrant, the issuing judge shall impose such conditions of the search which are designed to protect as much as is reasonably possible, the rights of these third persons. For instance, in most instances, late night searches would not be permitted. But this, too, can vary from case to case.
The State has suggested that a search clause be imposed in such a manner that a probationer cannot be harassed or intimidated. This, of course, goes without saying. We believe, however, that by imposing a search warrant requirement and limiting the right to obtain a search warrant to a probation officer, there will be little if any harassment or intimidation. Only the probation officer is in a position to make the decision, in the context of the particular case, of what is best for the probation process, considering both the probationer and the legitimate interests of the public. He should, therefore, be the person who makes the decision as to whether or not to seek a search warrant. Indeed, a decision to do so may well rupture the working relationship he has with a probationer, and law enforcement officers should not be making that decision for the probation officer.
We have primarily focused on a search of a probationer’s home in setting forth the essential guidelines. Obviously, if the privacy of third persons is to be invaded, the search of a probationer’s home is most likely to be the scene of those invasions. On the other hand, the privacy of third persons is not as intimately involved where a probationer’s vehicle is searched or where the probationer is personally searched. The probation officer obviously has no right to search third persons in any event. Because we have limited the right to search to a probation officer or a police officer at his direction, we do not feel that there will be significant abuses in searching either the probationer’s vehicle or the probationer personally. For this reason we do not impose a search warrant requirement on the probation officer to search either the probationer’s vehicle or the probationer personally. The probation officer must, however, have some articulable reason for conducting either search. It is not sufficient that he make a decision to search based only on his unfettered discretion.
We note, however, that a probation officer obviously has the right to protect himself, and therefore we do not require that he have any articulable grounds to conduct a pat-down search to assure his own safety.
We emphasize that imposition of these search clause and polygraph clause limitations does not interfere with the traditional rights of law enforcement officers to use the tools at their disposal if they have the requisite probable cause to believe that probationer has committed a criminal offense. We hold only that law enforcement officers have no business directly injecting themselves into the probationary process, nor should the trial courts directly inject these law enforcement officials into the probationary process by permitting them to make decisions that are best left to the probation officers.
There is an additional question as to whether state prosecutors, as a condition to agreeing to a deferred sentence or suspended sentence, should be permitted to condition such agreement upon the willingness of the defendant to agree to a search clause condition or polygraph condition. Good policy, requires, we believe, that they not be permitted to do so. Rather, that question in each case should be left to the sentencing court. If a prosecutor could demand either or both of these conditions as part of a plea bargain the defendant is placed in an untenable position. Either he agrees to the conditions or he will not receive a deferred or suspended sentence. This kind of plea bargaining leverage should not belong to a prosecutor.
This is not to say that a prosecutor cannot inform a defendant that at the sentencing hearing he will request either a search clause or polygraph clause. He may have some good reasons to present to the sentencing court to ask for either or both conditions in a particular case, and he has a right of course, to present his case. But so does the defendant or his counsel have the right to present his case in opposition to the imposition of such conditions. In the event the prosecutor does ask for either or both conditions he must state with particularity his reasons for such request.
If, upon a consideration of the special circumstances of the case, the sentencing court determines that either or both conditions should be imposed, he shall state for the record, with particularity, the reasons for his decision.
Another question underlying the use of a polygraph clause is the use to which the test results are put. Test results adverse to the probationer should not be sufficient in and of themselves to cause the revocation of probation. We do not believe these tests to be sufficiently trustworthy that one could be jailed or imprisoned solely as the result of a polygraph examination. This is not to say that we believe polygraph examinations have no merit. We hold that in addition to the adverse results of a polygraph examination, there must be independent corroboration that a violation of a condition of probation has occurred. It is conceivable that a probationer may be subjected to repeated polygraph examinations with relation to different events and different periods of time, and that he has repeatedly failed the tests administered. We express no opinion here as to whether this would be sufficient reason to revoke a probationer’s probation.
For the foregoing reasons, the order of revocation and imprisonment is vacated and the defendant is ordered placed back on probationary status. Should the court desire to impose either or both of the conditions again, it shall do so in a manner consistent with this opinion.
MR. JUSTICES DALY and SHEEHY concur.
|
[
34,
13,
-21,
4,
-19,
5,
-17,
-51,
-54,
43,
21,
22,
-27,
-41,
52,
-10,
5,
30,
12,
49,
-12,
-4,
29,
29,
-51,
-42,
52,
34,
0,
14,
49,
-49,
38,
-35,
15,
-18,
36,
-9,
13,
18,
-18,
-5,
-22,
-22,
-50,
14,
-22,
-6,
-2,
-43,
-26,
11,
-19,
9,
17,
76,
15,
-24,
-39,
33,
-66,
-6,
-42,
-42,
-21,
-6,
73,
21,
-33,
-51,
14,
-3,
-3,
-9,
0,
-25,
-2,
33,
0,
8,
-5,
35,
1,
19,
25,
-54,
32,
-39,
-18,
-6,
-8,
-14,
-31,
9,
-34,
-6,
32,
-54,
64,
-14,
37,
-6,
25,
65,
-28,
38,
-30,
52,
37,
3,
-2,
16,
-60,
-15,
-43,
-56,
-35,
41,
-3,
-12,
-16,
11,
25,
23,
0,
-17,
30,
-22,
32,
-4,
-27,
57,
40,
1,
1,
-10,
-24,
51,
41,
53,
0,
-4,
55,
-35,
8,
3,
71,
-19,
13,
26,
37,
-13,
27,
11,
26,
-23,
40,
22,
-19,
56,
78,
27,
-103,
17,
-9,
38,
-31,
-13,
14,
17,
-2,
45,
-13,
2,
-10,
-16,
-10,
9,
64,
-25,
-57,
37,
29,
-20,
-2,
-5,
-29,
-41,
13,
-16,
-57,
-7,
1,
-23,
62,
-37,
29,
29,
27,
5,
-57,
26,
35,
40,
3,
13,
-29,
39,
-16,
44,
-35,
21,
10,
5,
-24,
-38,
-2,
-36,
6,
37,
-18,
8,
-7,
-30,
-34,
24,
-15,
53,
7,
-38,
10,
24,
-7,
10,
-39,
15,
-10,
19,
63,
22,
-15,
29,
29,
-36,
3,
-7,
30,
-34,
-12,
-27,
24,
0,
49,
31,
-15,
2,
-35,
-90,
-12,
-22,
17,
13,
13,
-20,
-54,
-22,
25,
-17,
23,
-5,
-8,
-72,
6,
20,
73,
52,
-21,
-27,
-49,
-48,
4,
-5,
79,
15,
-37,
24,
15,
48,
30,
26,
10,
-32,
-18,
29,
17,
-38,
24,
16,
-44,
-33,
52,
-4,
-24,
58,
-5,
-8,
25,
104,
-13,
-6,
11,
67,
-21,
41,
-2,
-24,
-15,
1,
40,
-26,
-32,
14,
-1,
-63,
18,
17,
26,
-34,
-9,
-14,
-47,
0,
10,
38,
54,
28,
-16,
46,
-24,
27,
6,
-46,
1,
-9,
-6,
9,
-21,
47,
-50,
48,
-19,
20,
0,
-2,
-58,
-24,
-87,
-23,
0,
-63,
-14,
6,
-50,
-24,
9,
29,
-27,
3,
-23,
2,
1,
-47,
-43,
-20,
78,
13,
61,
-28,
-3,
-17,
12,
-4,
53,
-32,
-30,
12,
-14,
-39,
19,
6,
-43,
47,
-43,
0,
-45,
-24,
30,
0,
14,
-21,
-59,
-9,
4,
-53,
15,
-20,
-17,
44,
-4,
0,
-65,
35,
19,
30,
23,
82,
-32,
-7,
-17,
-23,
-35,
-37,
37,
-22,
25,
9,
-73,
19,
0,
-6,
-31,
-27,
-27,
-65,
-43,
39,
-32,
-36,
40,
0,
-21,
-3,
15,
-23,
52,
-10,
31,
-22,
-19,
-21,
-22,
-21,
26,
5,
-56,
22,
66,
38,
-41,
-27,
-23,
18,
-54,
12,
49,
-22,
-62,
-24,
-32,
-20,
25,
36,
-7,
21,
4,
12,
-12,
33,
-9,
-34,
25,
-22,
-37,
-20,
14,
10,
-24,
-24,
-2,
-7,
-48,
-21,
38,
13,
-28,
8,
9,
-31,
-16,
38,
65,
19,
-8,
-8,
13,
-32,
26,
-13,
72,
21,
36,
89,
14,
41,
-7,
-103,
8,
-55,
27,
26,
26,
-10,
7,
-58,
-62,
-23,
-56,
29,
-1,
-17,
-4,
32,
-4,
-34,
26,
51,
-3,
-17,
27,
-30,
9,
-10,
20,
9,
6,
-1,
63,
-57,
46,
10,
-20,
8,
-10,
-3,
-21,
-28,
-45,
-13,
65,
8,
-3,
-14,
58,
61,
-16,
14,
-55,
31,
12,
0,
5,
28,
-62,
-8,
24,
4,
52,
6,
0,
-23,
45,
56,
-67,
2,
4,
-25,
-21,
-21,
76,
-27,
-14,
13,
-3,
-36,
-83,
-36,
-56,
-68,
31,
48,
-28,
75,
26,
35,
17,
-12,
87,
-20,
19,
42,
3,
3,
-16,
-34,
34,
16,
12,
12,
-37,
20,
-25,
-14,
5,
-7,
7,
-43,
-47,
0,
7,
-26,
8,
-25,
-3,
-14,
-14,
-3,
-17,
-13,
-26,
-25,
29,
31,
-16,
-13,
40,
20,
50,
0,
-17,
-12,
-37,
-14,
-33,
-91,
47,
-13,
-25,
-16,
60,
35,
-47,
19,
-43,
13,
24,
6,
-42,
11,
-17,
-21,
14,
28,
-12,
-21,
-5,
-10,
30,
-23,
3,
-29,
-67,
-16,
-7,
-26,
6,
-4,
-32,
-3,
20,
50,
41,
8,
38,
19,
27,
10,
52,
49,
-17,
6,
-17,
-12,
12,
0,
-16,
9,
0,
-19,
12,
7,
-13,
9,
-25,
38,
-35,
-61,
3,
2,
-26,
19,
-11,
-64,
-29,
17,
30,
15,
0,
8,
13,
-10,
43,
-62,
-4,
13,
-7,
37,
-28,
-29,
32,
66,
-24,
-5,
-31,
-14,
40,
-14,
-13,
-30,
-39,
-15,
49,
-28,
24,
-22,
-87,
47,
45,
-31,
-56,
-6,
-13,
44,
-39,
26,
33,
-2,
37,
-18,
9,
25,
30,
-51,
22,
9,
-15,
-29,
-2,
14,
-14,
-73,
-31,
94,
-49,
-5,
-11,
-17,
-57,
-3,
-79,
15,
-7,
19,
0,
65,
21,
-8,
31,
26,
-34,
21,
56,
0,
13,
-23,
-8,
-14,
28,
-26,
-9,
-17,
-17,
12,
20,
27,
2,
-57,
13,
-24,
17,
-52,
58,
-35,
12,
-8,
43,
7,
10,
-22,
10,
42,
1,
38,
28,
18,
9,
-29,
-30,
12,
61,
48,
-53,
24,
9,
16,
-5,
7,
21,
-69,
28,
16,
48,
-1,
-47,
2,
16,
-6,
25,
7,
-20,
13,
19,
74,
32,
-22,
3,
21,
2,
-11,
-35,
16,
-54,
-14,
58,
32,
-57,
-16,
-25,
-5,
-60,
11,
16,
-13,
13,
-17,
26,
-19,
-49,
-30,
-4,
-53,
3,
-19,
22,
13,
-9,
68,
17,
7,
10,
-32,
13,
-64,
-11,
-5,
57,
6,
36,
46,
-2,
22,
8,
-3,
42,
11,
29,
10,
-58,
-45,
42,
-65,
-11,
42,
58,
9,
-8,
-49,
-27,
-64,
-42,
9,
-6,
3,
52,
-10,
-17,
-14,
16,
-7,
44,
-14,
-34,
-22,
8,
18,
-37,
29,
-19,
-13,
10,
-30,
-34,
13,
-27,
53,
-14,
-30,
28,
46,
10,
7,
-41,
-10,
-40,
4,
0,
30,
-22,
-26,
0,
-21,
-12,
5,
52,
-37,
-21,
13,
24,
11,
-6,
3,
-51,
-25,
37,
11,
-12,
-7,
40,
-14,
21,
-14,
32,
-31,
13,
28,
-4,
28,
-42,
-20,
-15,
24,
38,
12,
-12,
0,
15,
-6,
-38,
-2,
-5,
21,
47,
3,
10,
-19,
-8,
23,
48,
-5,
11,
39,
-57,
61,
9,
-8
] |
MR. CHIEF JUSTICE HARRISON
delivered the opinion of the Court.
This is a petition for a writ of prohibition, supervisory control, or other appropriate relief in the dissolution of a marriage between members of the Crow Tribe. Respondent filed a memorandum brief opposing the petition, and upon receiving a reply brief from petitioner, we assume jurisdiction for decisional purposes without oral argument.
Petitioner Donald Stewart filed a divorce action against Tana Cordelia Stewart in the Tribal Court in August 1979, requesting custody of the couple’s two children, Donald, age 3, and Oli-Ann, age 2. There is no showing of any service of said action upon Tana nor any indication that anything occured following petitioner’s complaint. The petitioner sets forth that the Crow Tribe never ceded jurisdiction to the State of Montana but has its own divorce code adopted by the Tribe July 8, 1978.
In October 1979 Tana filed a divorce action in the District Court of the Thirteenth Judicial District, asking for custody of the two children and $ 150 per month child support. A hearing was held on the matter before the Honorable Diane Barz, who ordered that care, custody and control of the couple’s children.be given to Tana during pendency of the action, that a 1977 Chevrolet truck belonging to Tana be returned to her, and that petitioner pay $150 per month support during pendency of the action.
We note that both petitioner Donald and his wife Tana are enrolled members of the Crow Tribe, as are their children, that they live at Crow Agency, Montana, within the exterior boundaries of the reservation, and that both parties are employees of the Crow Tribe.
Donald filed this petition promptly after his wife filed her divorce action and after the District Court refused to dismiss Tana’s action for lack of subject matter and personal jurisdiction. On October 26, 1979, the District Court denied petitioner’s motion to dismiss and assumed jurisdiction over the dissolution of the marriage.
Petitioner alleges he has no speedy, adequate remedy at law, that he is faced with two separate actions, and that an appeal from the ruling of the District Court does not offer the petitioner an adequate remedy to avoid duplicitous actions. In addition, petitioner notes that there is a real possibility of having conflicting custody decrees, thereby subjecting the children to continued custody litigation.
Tana argues that although the Crow Tribe does have a Law and Order Code covering domestic relations, that code was not approved by the Secretary of Interior and is not valid. She appears to rely on an ordinance adopted in 1953 by the Crow Tribe that gave jurisdiction to the State of Montana. That ordinance was approved by the Secretary of Interior.
The issue before us is whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction for members of the Crow Tribe living within the exterior boundaries of the Crow Reservation.
Before considering the above issue, we must dispose of the argument that because the 1978 Crow Uniform Divorce Act was not signed by the Secretary of Interior, the Act is not effective. We find on the basis of a letter of the Solicitor for the Department of Interior dated October 13, 1976, that no approval is necessary. The Solicitor stated:
“We recommend that no action be taken either to approve or disapprove of the other three Crow ordinances . . . since the Crow Tribal Constitution does not require their approval by the Department for them to become effective. Departmental action, accordingly, either way would be a gratuitous act without legal significance. Our determination that no approval is required would not, of course, foreclose the Department from taking a position in any subsequent litigation challenging the validity of these ordinances. We should evaluate each such lawsuit on a case-by-case basis, and might decide to support tribal authority in the absence of Depart mental approval of these ordinances.” (Emphasis supplied.) Memorandum of Solicitor to Secretary of Department of Interior, October 13, 1976, p. 2.
We note that the District Court in its brief cited 25 C.F.R. § 11.1, as requiring approval by the Department of Interior. Such approval is not required once a tribe has enacted a law and order code to replace the C.F.R. provisions. 25 C.F.R. § 11.1(d). The Crow Tribe has adopted a comprehensive tribal code and, therefore, is not governed by the provisions of 25 C.F.R. § 11. The Solicitor noted concerning secretarial approval, “. . . However, that Section [25 C.F.R. § 11.1(e)] in our view applies only to modifications of the C.F.R. code (while the Department continues to administer a C.F.R. ‘Court of Indian Offenses’) and does not bar the tribe from exercising its governmental power to adopt a separate code and to establish a tribal court without Secretarial consent.” Memorandum of Solicitor, supra, p. 6, footnote 8.
Here, the provisions relied on by the District Court questioning the validity of the tribal code are inapplicable to the Crow Tribe. The Crow Tribal Code, being found duly enacted, gives the Crow Tribal Court exclusive jurisdiction over the dissolution of marriage actions between members residing within the exterior boundaries of the reservation.
Having so found here, unlike our finding in Larrivee v. Morigeau (1979), 184 Mont. 187, 602 P.2d 563, under the principles of comity we should abstain and leave to the Tribal Court the deci-sional task of divorce matters between tribal members of the Crow Tribe. In so doing, we should reduce the “inter-governmental friction” likening the “competing interests” of the State and the tribes to a “Pullman type abstension situation.” Railroad Comm’n v. Pullman Co. (1941), 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. See also, Fisher v. District Court (1976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106.
This Court in State ex rel. Iron Bear v. Dist. Ct. (1973), 162 Mont. 335, 512 P.2d 1292, held:
“Before a district court can assume jurisdiction in any matter submitted to it, it must find subject matter jurisdiction by determining: (1) whether the federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the exercise of state jurisdiction would interfere with reservation self-government; and (3) whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction.” 162 Mont. at 346, 512 P.2d at 1299.
It would appear from the material submitted that the Tribal Court, since the adoption of 1978 Crow Uniform Divorce Act, is exercising exclusive jurisdiction over its tribal members living on the reservation. This being the case, we find that Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, is controlling. The Court held in Williams: “. . . to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.” 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d at 255.
For the above-stated reasons and after a careful consideration of the applicable law, we hold that prohibition is the proper remedy in this case and we order that the District Court dismiss the action for dissolution, Cause No. DR-79-114, entitled “In Re the Marriage of Tana Cordelia Stewart and Donald Stewart, Jr.” In so doing, we hold this ruling is limited in effect to the Crow Indian Reservation.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
14,
-11,
-3,
20,
0,
-46,
-9,
29,
11,
2,
-38,
5,
-16,
-20,
-9,
-21,
34,
22,
23,
-6,
0,
0,
-65,
1,
37,
27,
-25,
-6,
-44,
-9,
-26,
-4,
1,
-54,
17,
-24,
14,
8,
5,
4,
13,
-37,
-31,
29,
-21,
23,
6,
-1,
-41,
-8,
-3,
-13,
20,
30,
-19,
29,
23,
-27,
-17,
-7,
-27,
33,
10,
-19,
-39,
-23,
44,
46,
43,
7,
-3,
-8,
-24,
-39,
-21,
-28,
15,
-18,
-17,
49,
11,
31,
-2,
-42,
0,
9,
-14,
32,
6,
33,
-16,
21,
-60,
10,
-16,
41,
-23,
12,
-5,
18,
3,
-26,
-3,
11,
90,
-24,
21,
0,
79,
35,
71,
-24,
-54,
-14,
43,
19,
-29,
33,
-27,
-81,
27,
45,
-25,
56,
0,
-33,
-14,
9,
41,
30,
0,
-35,
44,
-35,
17,
5,
-9,
-51,
-25,
-33,
9,
-13,
29,
50,
53,
-18,
5,
-14,
-29,
-37,
-2,
19,
14,
23,
23,
-26,
34,
-16,
24,
-7,
26,
-33,
-37,
47,
-23,
25,
23,
35,
-25,
-2,
7,
19,
-54,
-22,
12,
36,
-11,
-13,
-25,
14,
24,
96,
-74,
-72,
-3,
0,
19,
-23,
8,
-32,
-54,
-54,
15,
-59,
25,
3,
45,
38,
-59,
-1,
34,
16,
24,
29,
-46,
10,
24,
-62,
14,
1,
-25,
20,
-18,
-48,
-42,
-21,
18,
5,
-21,
2,
42,
-5,
-31,
-9,
-60,
-43,
0,
51,
-7,
-14,
-19,
6,
21,
-9,
16,
-8,
-23,
-19,
1,
16,
9,
-33,
1,
-11,
54,
10,
-37,
-3,
-39,
-13,
-5,
24,
-20,
61,
71,
-48,
52,
-6,
-18,
-54,
-4,
-19,
25,
4,
-10,
-13,
17,
-25,
28,
-5,
-18,
50,
46,
-13,
-12,
-43,
46,
-2,
18,
17,
-18,
4,
-22,
17,
-6,
25,
5,
-22,
24,
-3,
-5,
-36,
-20,
34,
-17,
51,
5,
-57,
28,
12,
28,
-20,
14,
26,
-43,
-26,
-52,
18,
6,
-7,
55,
14,
-54,
-8,
-11,
14,
12,
41,
-35,
-19,
15,
41,
27,
-19,
-31,
-1,
-16,
-11,
-8,
-8,
6,
84,
-50,
46,
42,
8,
18,
-19,
9,
17,
13,
-27,
36,
37,
-24,
-6,
-8,
-13,
-20,
10,
-11,
16,
2,
20,
-18,
15,
-48,
-68,
-5,
-13,
9,
6,
-25,
-47,
-21,
36,
27,
-11,
9,
-23,
-22,
-7,
69,
11,
-24,
11,
-8,
10,
3,
8,
-14,
-20,
-16,
4,
8,
14,
-24,
-38,
-45,
-65,
5,
-32,
14,
57,
4,
-22,
56,
-28,
38,
0,
-17,
17,
-16,
19,
33,
1,
53,
-15,
-22,
-20,
13,
-45,
-75,
-11,
31,
47,
-44,
47,
-17,
-25,
-24,
11,
-24,
-15,
0,
-24,
-2,
-24,
1,
9,
-3,
38,
29,
26,
32,
-49,
19,
10,
-3,
16,
-10,
5,
-12,
-11,
9,
-43,
-64,
35,
20,
-2,
-1,
7,
-79,
11,
-3,
-23,
4,
21,
-7,
-27,
0,
33,
21,
-24,
36,
-69,
-12,
-22,
27,
31,
-14,
-3,
3,
48,
-15,
24,
-34,
-13,
-40,
-61,
-4,
1,
-20,
10,
19,
50,
-6,
-65,
8,
21,
-20,
-25,
38,
12,
-35,
-21,
32,
-25,
28,
9,
28,
40,
-5,
-7,
4,
-23,
-38,
58,
-48,
63,
-29,
-58,
18,
-32,
-60,
17,
43,
46,
-10,
21,
10,
30,
49,
-39,
49,
2,
21,
-3,
8,
28,
-36,
85,
18,
66,
12,
64,
40,
20,
12,
-61,
24,
-40,
-8,
-35,
5,
12,
11,
-1,
-22,
25,
82,
-60,
-41,
-27,
36,
12,
11,
45,
-73,
-17,
29,
-10,
-17,
-33,
10,
32,
-42,
12,
4,
8,
-29,
-1,
4,
-6,
54,
24,
-3,
26,
-17,
3,
-1,
8,
-40,
26,
-30,
-81,
3,
24,
-6,
4,
-14,
-6,
38,
-19,
-18,
-32,
40,
-8,
-73,
15,
-35,
32,
63,
-15,
-14,
46,
-2,
27,
22,
-13,
8,
37,
2,
-19,
28,
88,
22,
-61,
10,
2,
14,
-22,
0,
-78,
-20,
-23,
12,
27,
62,
-11,
-27,
38,
32,
-29,
38,
-13,
-10,
1,
-6,
-49,
21,
14,
14,
47,
28,
12,
-4,
-5,
30,
-20,
29,
24,
10,
-29,
-14,
44,
31,
-7,
18,
21,
5,
-7,
3,
53,
-8,
4,
16,
79,
31,
48,
-43,
-14,
10,
36,
33,
-25,
-5,
-11,
9,
0,
-32,
15,
-39,
-83,
24,
1,
-5,
49,
-31,
57,
-6,
41,
31,
30,
7,
-37,
-41,
48,
-24,
78,
9,
10,
-3,
-26,
18,
6,
-22,
18,
-5,
-34,
-29,
0,
26,
-49,
-80,
-27,
3,
-45,
-55,
-33,
-50,
23,
-36,
31,
23,
-5,
3,
-12,
31,
21,
-14,
47,
-28,
-31,
8,
-9,
-11,
75,
-22,
41,
30,
-11,
-25,
48,
47,
42,
3,
-5,
0,
14,
2,
-9,
-27,
44,
-4,
-39,
-4,
-23,
15,
-10,
53,
-17,
-6,
31,
3,
4,
-35,
-47,
12,
0,
47,
-18,
-37,
-27,
-3,
8,
-21,
30,
8,
-27,
-5,
-18,
-51,
-4,
-41,
-53,
52,
7,
-6,
26,
6,
-22,
55,
-57,
52,
21,
-18,
16,
-16,
-8,
8,
38,
13,
-1,
72,
68,
-14,
17,
-34,
48,
-41,
33,
11,
-5,
-7,
-12,
-1,
-10,
-8,
-36,
45,
-45,
-37,
42,
5,
3,
12,
9,
-36,
6,
-11,
-3,
35,
-8,
-40,
16,
-21,
-27,
-5,
15,
0,
-70,
-36,
-16,
61,
7,
0,
21,
-9,
-23,
6,
5,
13,
7,
-7,
-71,
-26,
21,
36,
0,
-9,
25,
9,
-34,
-10,
-45,
40,
-21,
5,
-9,
30,
-31,
-2,
78,
-49,
-59,
52,
-8,
14,
-51,
1,
0,
-45,
1,
18,
19,
45,
19,
-2,
-38,
41,
-63,
-8,
31,
-42,
41,
-35,
-11,
-42,
0,
22,
43,
-15,
-22,
8,
-32,
-5,
61,
54,
3,
15,
34,
-27,
-27,
-33,
-14,
4,
9,
17,
6,
52,
25,
-34,
-17,
-33,
28,
-21,
5,
-16,
14,
24,
-9,
-6,
-44,
-5,
-11,
-13,
87,
5,
-57,
-61,
-15,
6,
-44,
43,
16,
-2,
-51,
-52,
-12,
0,
11,
1,
24,
-11,
14,
-29,
9,
0,
-20,
-31,
80,
36,
17,
-62,
-34,
15,
64,
-39,
-26,
0,
18,
-11,
6,
-36,
12,
-34,
44,
75,
19,
29,
41,
-7,
24,
7,
14,
-3,
-18,
-76,
-30,
-7,
30,
-13,
-35,
42,
-10,
13,
-69,
-12,
-6,
10,
-13,
-30,
-25,
16,
-42,
10,
1,
34,
-13,
-35,
24,
14,
-1,
5,
-32,
-23,
-37,
-61,
33,
12,
-15,
47,
-52
] |
MR. JUSTICE DALY,
delivered the opinion of the Court.
On January 14, 1979, an information was filed in the Thirteenth Judicial District of the state of Montana, in and for the County of Yellowstone, charging defendant and Robert C. Rodgers, a/k/a Robert G. Lee, with robbery. Defendant entered a plea of not guilty. On April 17, 1979, after severance of the cases, trial in this matter was had. The court sat with a jury, which returned a verdict of guilty. Defendant appeals from the final judgment and a denial of his motion for a new trial.
Defendant and Rodgers were charged with a robbery at the home of Mr. and Mrs. Curtis Workman of Laurel, Montana, on December 14, 1978.
Mrs. Workman testified that on the night in question, two men, armed with guns and a knife, forcibly entered her home. Both men were wearing dark ski caps with nylon stockings over their faces and conversed using the names of “Billy Boy” and “George.” Mrs. Workman stated that the two men talked during the robbery and that she had a good look at “George’s” face and physical stature. The two men took cash and various other items including a plastic jug used by Mrs. Workman’s brother Dale Wolford, to store coins.
The Workmans’ residence is next door to an apartment rented by Vernal Miller, his common-law wife Roxanna Clymore, and defendant. On January 9, 1979, a search warrant was issued for Miller’s apartment and during its execution, a plastic jug was recovered from the top of a dresser in Miller and Clymore’s bedroom. Dale Wolford, who resided with the Workmans, testified that the plastic jug was the one taken by the two robbers. He also stated that on a prior occasion he had shown Clymore and Miller his coin collection.
Mrs. Workman indicated that there was a strong possibility she would be able to identify the individual known as “George” if he appeared in a lineup. A lineup was held, and Mr. and Mrs. Workman were given the opportunity to view defendant and others wearing the exact clothing worn by “George.” The persons in the lineup also repeated the words “George” had uttered during the robbery. Mrs. Workman, however, failed to identify defendant as “George.”
About three months after defendant’s arrest, some pantyhose were found behind the seat of defendant’s pickúp. The pantyhose were discovered when the police stopped Vernal Miller, who was driving the pickup. Miller testified that he had used defendant’s pickup on various occasions. There was testimony that Roxanna Clymore and Thomas Rightmeir, defendant’s brother-in-law, had also used the pickup since defendant’s arrest.
Roxanna Clymore testified that defendant and Rodgers were at her apartment the night of the robbery. She stated she saw two men force their way into the Workmans’ residence that evening. She also stated that defendant made certain remarks to her about the robbery. She also testified that the plastic jug belonging to Wolford was found by the police in her bedroom. Defendant testified and denied that he had participated in the robbery.
The following issues are presented for consideration on appeal:
1. Did the District Court abuse its discretion by denying defendant’s motion for continuance so that a material subpoenaed witness could be brought to court and present testimony in support of the defense? In the alternative, did the District Court err by not allowing the defense to read into the record the statement of the absent witness?
2. Did the District Court err by allowing into evidence, over defendant’s objection, testimony and exhibits relating to Lee, a/k/a Rodgers, thus confusing the jury with irrelevant and prejudicial evidence not linked to the defendant or the issues presented in this case?
3. Did the District Court err by preventing the defendant from inquiring into a possible motive that the witness Clymore may have had to fabricate a story against the defendant?
4. Did the District Court err by failing to suppress as evidence the pantyhose and the plastic jug?
5. Did the District Court err by refusing to give defendant’s proposed instruction nos. 7, 12 and 14?
Defendant contends the District Court abused its discretion by denying his motion for continuance near the end of his case-in-chief. The continuance was requested because a crucial defense witness, Russell Brohaugh, under subpoena by defense failed to respond as directed. In the alternative, the District Court erred by not allowing a portion of Brohaugh’s statement to the police to be read into the record by the defense in lieu of Brohaugh’s testimony.
The rule for continuances in Montana is set out in section 46-13-202, MCA, and in State v. DiGiallonardo (1972), 160 Mont. 379, 503 P.2d 43. The facts in this case present no reasons why a continuance should not have been granted. See, State v. Valmoja (1975), 56 Haw. 452, 540 P.2d 63; Salazar v. State (Alaska 1976), 559 P.2d 66.
During trial a situation developed where it became necessary, if possible, for the defense to demonstrate that defendant was not the robber “George,” but rather Vernal Miller was. Defendant urged that a police report filed by one Russell Brohaugh was crucial to his defense in this regard and would bolster the defense theory that Vernal Miller was the robber “George.” The defense moved for a continuance so that Brohaugh might be located, or, in the alternative, that the pertinent portion of the police report be read to the jury.
In Montana, motions for continuance in criminal trials are provided for by section 46-13-202, MCA, which states:
“(1) The defendant or the state may move for a continuance. If the motion is made more than 30 days after arraignment or at any time after trial has begun, the court may require that it be supported by affidavit.
“(2) The court may upon the motion of either party or'upon the court’s own motion order a continuance if the interests of justice so require.
“(3) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. This section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the state to a speedy trial.”
Since subsection (3) requires that such motions be directed to the discretion of the trial court, we must consider whether the trial court’s treatment of this matter was an abuse of discretion. State v. DiGiallonardo, 503, P.2d at 44.
In DiGiallonardo, this Court adopted guidelines which Illinois had established in People v. Hudson (1968), 97 Ill.App.2d 362, 240 N.E.2d 156, to determine whether there was an abuse of discretion. These guidelines were:
1. Reasonable expectation or prospect of obtaining the presence of the absent witnesses;
2. Whether the absent witnesses’ testimony would help the defense, and,
3. Whether the absent witnesses would testify.
In DiGiallonardo, the absent witnesses were alleged to be co-participants in the crime. We held that the trial court acted properly in denying defendant’s motion because: (1) the transcripts indicated appellants had no knowledge of the whereabouts of the missing witnesses; (2) the probative value of their testimony was speculative; and (3) there was a question as to whether the missing witnesses could be compelled to testify. 160 Mont. 382-384, 503 P.2d 43.
Defendant here seeks to distinguish DiGiallonardo and argues that in the instant case, the missing witness was a resident property owner in Laurel, Montana, who would therefore be easy to find and could not avail himself of Fifth Amendment protections. Further, the defense demonstrated by the police record that Brohaugh’s testimony was crucial to the defense of the case.
Defendant has suggested further that this Court apply the standards set forth in Salazar v. State, supra. In Salazar, the Alaskan court set out the following factors to be considered in granting a motion for continuance:
“... (1) whether the testimony is material to the case; (2) whether the testimony can be elicited from another source; (3) whether the testimony is cumulative; (4) probability of securing the absent witness in a reasonable time; (5) whether the requesting party was diligent and acting in good faith; (6) the inconvenience to the court and/or others; and (7) the likelihood that the testimony would have affected the jury’s verdict . . .” 559 P.2d at 72.
The State focuses on the specific language of section 46-13-202, MCA, which requires that the movant demonstrate his diligence prior to the consideration of any of the other factual issues. The State submits that if this Court finds that defendant attempted with due diligence to have Brohaugh testify, then this Court should look to the factors stated in Salazar to determine if the trial court abused its discretion.
There is nothing in the record to indicate that defendant failed to act diligently in attempting to secure the testimony of Brohaugh. He was properly subpoenaed. There is nothing in the record to indicate he would not show up until a short time before he was called to the stand and failed to appear. In fact, the record does not disclose that the court so much as issued a bench warrant to arrest the intended witness.
Both parties here seek to extend the guidelines set out by this Court in DiGiallonardo by use of the Salazar factors.
In reviewing the evidence, however, it becomes apparent that under either set of guidelines the District Court acted arbitrarily in denying defendant’s motion for continuance, or not working out a method to admit a portion of the police record. It appears Brohaugh could have been found without unreasonable delay, a factor which is not entirely clear from the record, but oral argument revealed the case went to the jury around 5:00 p.m. and a continuance until the following day would have prejudiced no one. These facts were not disputed. Brohaugh had filed a police report on another theft and in some manner identified the present defendant in the company of a companion of whom he reported: “They called him George.” The word “him” would have referred to Ver nal Gary Miller. Defendant argues that his statement was a crucial factor in his defense theory that would tend to link Miller to the robber “George.”
It was argued with some justification that there were problems with this testimony and therefore the quality came under attack by the State in terms of how much help it would be to the defense. This is a hard question and one of fact. Defendant’s effort was in good faith; the testimony was not cumulative; the testimony was material; the court would not allow any consideration of an alternate hearsay source; the delay would have been minimal and no one would have been inconvenienced thereby; and, of course, the value, as stated above is a close question which should have been resolved in favor of defendant, assuring him a fair trial. Conversely, without the testimony a conviction resulted.
The District Court abused its discretion when it failed to grant some kind of relief or continuance to defendant when a subpoenaed witness material to the defense failed to appear and testify.
If the evidence remains the same at a new trial, then defendant’s proposed instruction no. 7 on circumstantial evidence must be given.
The judgment of the District Court is reversed, and the cause is remanded for a new trial.
MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA and SHEEHY concur.
|
[
34,
32,
10,
31,
-57,
-55,
-17,
40,
-16,
-13,
21,
-24,
15,
-16,
-30,
4,
-16,
-29,
65,
-62,
-1,
-66,
-20,
29,
2,
-14,
16,
19,
-48,
34,
30,
24,
40,
-67,
2,
46,
46,
-4,
-19,
4,
30,
39,
7,
3,
-5,
-15,
13,
-2,
-21,
-27,
37,
-86,
13,
10,
21,
-35,
0,
12,
11,
31,
37,
-18,
23,
-11,
9,
-41,
51,
-30,
-6,
-8,
57,
-7,
-26,
1,
5,
-30,
-19,
5,
-28,
15,
-24,
-66,
9,
47,
34,
-62,
-11,
4,
15,
-25,
-19,
48,
-17,
25,
19,
-20,
-11,
-35,
-29,
6,
-42,
-65,
-21,
-24,
-3,
-21,
-43,
-13,
32,
44,
-11,
-1,
64,
-23,
-6,
16,
-24,
-29,
-9,
-4,
-19,
6,
14,
40,
0,
-35,
-43,
-33,
62,
0,
-23,
47,
6,
-33,
-46,
0,
-16,
-1,
-4,
-3,
3,
36,
46,
-3,
2,
-10,
3,
34,
36,
33,
-22,
8,
-4,
43,
19,
-11,
-34,
-46,
-34,
-21,
-11,
-20,
16,
15,
34,
-26,
-3,
-18,
-13,
-38,
-47,
-17,
-33,
12,
64,
26,
-7,
-4,
9,
2,
-1,
61,
-5,
45,
-29,
0,
51,
7,
26,
0,
2,
0,
-25,
-34,
-4,
46,
32,
-65,
-19,
-3,
38,
-2,
20,
-15,
-10,
-9,
60,
7,
28,
10,
-1,
14,
2,
-6,
-45,
-15,
-24,
-19,
0,
-53,
-39,
7,
-42,
51,
19,
-32,
-4,
-7,
-30,
-27,
20,
17,
40,
-37,
-26,
-4,
6,
-44,
7,
-12,
-22,
-128,
17,
-45,
93,
33,
-16,
-40,
-1,
-2,
-40,
-28,
-37,
45,
5,
4,
61,
-20,
7,
3,
-36,
11,
30,
39,
1,
-31,
9,
-37,
-54,
32,
2,
-30,
39,
11,
13,
-27,
11,
50,
-33,
32,
22,
-23,
-35,
-5,
56,
-74,
-11,
-13,
20,
6,
-6,
-15,
26,
-29,
6,
-19,
-20,
-71,
3,
1,
5,
32,
-18,
-33,
-25,
-5,
5,
-53,
-48,
-24,
30,
21,
-31,
47,
32,
1,
-34,
25,
0,
15,
22,
-36,
55,
-15,
19,
3,
-21,
18,
-60,
-6,
18,
12,
-9,
34,
-7,
-13,
39,
-19,
52,
11,
-28,
-37,
38,
7,
-48,
42,
23,
69,
-59,
-6,
24,
8,
-9,
-9,
21,
-23,
-34,
0,
-2,
-28,
42,
19,
-18,
-10,
15,
-30,
-34,
-28,
-10,
-4,
-10,
-60,
19,
-20,
1,
28,
12,
-17,
-8,
-8,
1,
-23,
14,
-11,
-26,
15,
55,
-59,
-15,
56,
-47,
-28,
6,
2,
30,
-50,
11,
-25,
22,
-54,
-37,
48,
28,
11,
-23,
-22,
-13,
-8,
-1,
-51,
-2,
6,
1,
22,
8,
-26,
14,
9,
-19,
-23,
-17,
11,
20,
-19,
19,
5,
8,
12,
-33,
13,
38,
26,
-24,
-45,
23,
-17,
-22,
14,
14,
-24,
-17,
-33,
-31,
65,
27,
29,
-11,
-41,
57,
-16,
15,
52,
-44,
-10,
-3,
50,
64,
-40,
5,
-47,
32,
9,
10,
-4,
33,
-12,
-3,
-66,
-11,
30,
40,
11,
-9,
-45,
-13,
23,
32,
38,
19,
-27,
1,
-4,
24,
50,
14,
-32,
-15,
-71,
-5,
5,
33,
40,
38,
1,
6,
39,
-2,
-13,
36,
-58,
-14,
-46,
47,
37,
38,
44,
9,
-10,
-48,
58,
-11,
39,
-16,
-31,
-13,
-29,
25,
-20,
-32,
29,
35,
-3,
-5,
29,
-34,
24,
-17,
-21,
-13,
-5,
-69,
-11,
-10,
-5,
54,
-20,
16,
4,
-17,
-34,
73,
-29,
41,
-12,
-32,
17,
27,
-20,
7,
-6,
53,
1,
60,
1,
4,
-10,
5,
16,
-27,
-8,
-23,
6,
42,
25,
30,
-23,
-45,
8,
27,
-49,
-30,
82,
-8,
5,
-15,
24,
-34,
-9,
4,
104,
62,
34,
-68,
29,
-45,
20,
35,
40,
-57,
-14,
-41,
-12,
29,
9,
-19,
-8,
-75,
-15,
-64,
-22,
23,
-54,
3,
20,
20,
-33,
-8,
-33,
-6,
-46,
-10,
63,
15,
-14,
-19,
1,
-33,
-55,
3,
-18,
56,
-44,
-2,
4,
3,
-17,
-45,
7,
17,
-11,
-38,
-3,
31,
1,
29,
-6,
-9,
4,
-77,
19,
9,
76,
32,
20,
-4,
34,
-29,
5,
9,
-39,
6,
-12,
14,
-15,
35,
-25,
74,
8,
-4,
-20,
49,
51,
-34,
27,
-8,
40,
33,
7,
87,
51,
2,
-57,
11,
18,
-16,
-43,
14,
-57,
11,
-51,
49,
-13,
18,
-12,
6,
44,
-27,
-41,
-23,
50,
-20,
50,
-16,
51,
35,
5,
26,
19,
-77,
9,
35,
-17,
-4,
-8,
38,
18,
-17,
-84,
-21,
21,
-44,
26,
3,
-3,
-9,
-39,
-33,
10,
-47,
-22,
-45,
-40,
-42,
27,
-15,
-32,
28,
16,
-15,
39,
19,
33,
-33,
19,
2,
-7,
-46,
40,
-43,
21,
-33,
12,
14,
48,
16,
-2,
22,
-81,
-9,
19,
27,
87,
20,
45,
12,
57,
-4,
38,
-1,
-24,
75,
17,
-8,
-13,
-38,
-30,
-22,
-16,
-7,
-33,
11,
31,
-25,
-8,
-42,
-17,
12,
12,
57,
-6,
4,
65,
-25,
7,
28,
-18,
-8,
-20,
42,
42,
-1,
24,
13,
6,
-21,
-18,
-30,
10,
-37,
49,
-20,
30,
90,
34,
12,
-27,
12,
54,
-8,
13,
31,
-8,
18,
-12,
-15,
1,
11,
5,
4,
-9,
12,
-78,
27,
-27,
-21,
22,
6,
-17,
-6,
23,
-30,
32,
0,
-6,
18,
-4,
-5,
-33,
-22,
36,
38,
-3,
-9,
6,
52,
-15,
32,
-30,
30,
-2,
19,
1,
0,
-4,
-31,
30,
-2,
9,
33,
1,
-8,
-18,
-29,
-6,
-18,
-23,
50,
-19,
-11,
30,
-13,
16,
18,
57,
-16,
16,
39,
38,
20,
-14,
2,
35,
10,
3,
5,
-8,
14,
4,
36,
-25,
-29,
8,
-50,
-53,
-3,
-33,
-20,
-42,
-11,
-55,
50,
-13,
-81,
59,
65,
-29,
67,
20,
39,
0,
37,
2,
-47,
7,
-14,
-3,
-22,
20,
-10,
13,
-36,
11,
57,
73,
88,
-42,
-39,
-38,
-40,
44,
-35,
28,
18,
-50,
-12,
4,
19,
-33,
64,
-21,
14,
3,
-37,
42,
18,
42,
9,
-55,
-6,
16,
18,
13,
-21,
29,
32,
42,
25,
-27,
-20,
-4,
-58,
41,
44,
-22,
11,
1,
-10,
54,
45,
-36,
15,
-75,
-6,
-55,
12,
-44,
-12,
44,
9,
-24,
7,
19,
5,
20,
61,
-17,
11,
-24,
-36,
11,
-16,
-38,
-36,
41,
43,
9,
-9,
-59,
-42,
-4,
-16,
0,
0,
-58,
-7,
25,
-55,
29,
46,
-33,
-39,
-28,
17,
-29,
-32,
7,
15,
45,
-30,
34,
-84,
-7,
-1,
4
] |
Coburn, J.
This is an action for claim and delivery of personal property, certain live stock. The defendant demurred to the complaint; the demurrer was sustained and judgment was rendered on the demurrer and for costs in favor of the defendant. From this judgment the plaintiff appeals. It is stated in the complaint that on the 20th day of February, 1882, one Valentine Laubenheimer, being indebted to plaintiff, gave to her his promissory note for $6,000, payable to her order five years after date, which sum is wholly unpaid. That on the 21st of February, 1883, said Valentine Laubenheimer, being a resident in good faith, etc., to secure this note, executed and delivered a chattel mortgage to the plaintiff, of certain live stock, which was duly filed and recorded on the 28th of February, 1883. That on the 23d of January, 1884, the defendant, without the plaintiff’s consent, took a portion of the live stock described in the mortgage, of the value of $1,500, from the possession of the plaintiff, the plaintiff being entitled to the possession thereof. A demand is alleged before suit, and a refusal and unlawful detention by defendant.
The defendant takes the position that this complaint is insufficient, for the reason that there is no allegation of any consideration for the mortgage mentioned in the complaint, it not being given contemporaneously with the note; and not being a part of the original transaction, at the time of the execution of the note. And that it was made solely for the purpose of securing the note, which was executed a year and a day before it. And that for this reason the mortgage is not good even between the parties thereto. That a pre-existing debt is-not a valid consideration, which can only rest upon something new or contemporaneous, or upon some change in the evidence of indebtedness, etc.
We think the doctrine, that a pre-existing debt is a valuable consideration for a chattel mortgage, is sustained by the weight of authority. See Jones on Chat. Mort. sec. 81, and cases cited, in which he asserts “that such a mortgage protects the mortgagee to the same extent that he would be protected if he had paid a new consideration at the time of the mortgage.” Kranert v. Timon, 65 Ill. 344; Macbeth v. Wanless, 1 Col. 225; Paine v. Benton, 32 Wis. 491; Buttes v. Houghwont, 42 Ill. 18; Prior v. White, 12 Ill. 261; Wright v. Bundy, 11 Ind. 398.
It would seem, then, that this mortgage is valid as between the parties, being founded upon a sufficient consideration, unless it is such a mortgage as is prohibited by the statute. The statute is as follows: Sec. 4, Acts 12th Sess. 4, is as follows: “Any mortgage of goods, chattels or personal property, acknowledged and filed as hereinbefore provided, shall thereupon, if made in good faith, be good and valid as against the creditors of the mortgagor and subsequent purchasers and mortgagees from the time it is so filed until the maturity of the entire debt ,or obligation for the security of which the same was given, and for a period of twenty days thereafter; provided, said time shall not exceed one year.” The question arises, is this a provision limiting the operation of all chattel mortgages to one year? Or does it contemplate mortgages for any period of duration, subject to the attacks of creditors after the expiration of one year from the execution and filing of the mortgage for record? In other words, is the time limited to one year between the filing and maturity of the debt? And is a mortgage for a debt which does not mature until after the lapse of four years, valid and binding upon the parties thereto until overthrown by creditors?
This provision does not forbid chattel mortgages for a longer period than one year from the date of filing them for record; but recognizes them as valid, allowing them to be assaulted and overthrown after that time by creditors of the mortgagor and subsequent purchasers and mortgagees. But if they make no assault, then it is fair to infer that the mortgage may remain in force during the time agreed upon by the parties to it. This limit of one year seems to be but an arbitrary provision fixing the period within which no attack can be made upon a chattel mortgage by the persons named, and we can perceive nothing in the nature of business or in public policy which should restrict parties from giving chattel mortgages for any period upon which they may agree; and we cannot infer from the language of the act, or from the state of society, or the course of business, that the legislature of 1881 intended to prevent parties from contracting, as to mortgages, for any time satisfactory to themselves. Formerly the statute provided that a chattel mortgage should be good and valid from the time it was recorded for a space of time not exceeding one year. E. S. 595, sec. 901. It would seem, then, if the respondent’s construction is to be given to this statute of 1881, that the amendment amounted to nothing.
The language of the two sections is in no respect similar. “Creditors, subsequent purchasers and mortgagees ” are not mentioned in the first act, but their interests are cared for in the second, that of 1881. The duration of the mortgage beyond one year is positively forbidden; and if this is the meaning of the.act of 1881, why was any protection attempted to be given to creditors and third persons, by allowing them to attack a mortgage which, after one year, had expired, and was a nullity before the statute allowed it to be assaulted? This privilege accorded to them would be without value and absurd in its nature.
The true construction of this statute is, that a mortgage may be given of chattels for such time as the parties may agree upon, subject to be defeated when one year has expired after the filing in the proper recorder’s office.
The respondent denies the right of appellant to the possession of the property, under the terms of the mortgage, which are as follows: “It is further provided that the said party of the first part, his heirs and assigns, shall have the right to remain in the possession of, and carefully use all of the above described property until.” The mortgagee is not entitled to the possession, under the express terms of the mortgage. The right to the possession of personal property is essential in the plaintiff in an action for claim and delivery. Any fact showing that the plaintiff in this action had no right to the immediate possession when she began the suit is a complete bar to the action. The provision in the mortgage, that the mortgagor, Valentine Laubenheimer, should have unlimited possession, is such a fact, and bars the plaintiff in this suit.
In the case of Belden v. Laing, 8 Mich. 500, the court say: “The object of our statutory replevin is to determine the right of possession at the commencement of the action, as well as title to the property for temporary or permanent purposes connected with that possession.” See Clark v. West, 23 Mich. 242; Davidson v. Waldron, 31 Ill. 120; Hill v. Freeman, 3 Cush. 260; Whitwell v. Wells, 24 Pick. 25; Johnson v. Neale, 6 Allen, 227; Wade v. Gray, 12 Mason, 335. See, also, Wells on Rep. sec. 107, and notes.
The mortgagor under the agreement was, at the commencement of this action, entitled to the possession of the property.
The judgment is affirmed.
|
[
-19,
-17,
33,
11,
29,
8,
64,
-3,
59,
-17,
2,
10,
18,
46,
26,
60,
-11,
-39,
-28,
-28,
-15,
-72,
-39,
-31,
0,
0,
27,
-4,
33,
45,
26,
12,
-50,
42,
-38,
-30,
-78,
-84,
32,
-30,
36,
-10,
52,
21,
-27,
13,
-38,
-62,
14,
-56,
63,
-44,
24,
-27,
-34,
15,
-31,
25,
-9,
-12,
-40,
-71,
33,
0,
-30,
20,
40,
-14,
-12,
-25,
-23,
-36,
34,
10,
-2,
-65,
-45,
-32,
-29,
-88,
0,
-2,
37,
-1,
-23,
-29,
-27,
4,
-28,
50,
24,
58,
2,
7,
0,
-20,
15,
65,
-53,
85,
14,
-52,
-30,
16,
-22,
40,
-29,
-33,
-27,
-13,
11,
18,
-40,
-24,
-23,
-20,
-36,
16,
6,
-24,
25,
7,
1,
-49,
0,
60,
-54,
18,
5,
21,
-6,
59,
-53,
66,
-63,
-46,
10,
5,
-19,
-12,
-29,
-64,
-43,
-79,
0,
-20,
42,
-30,
-25,
-36,
-37,
46,
28,
48,
25,
-39,
-24,
3,
36,
-67,
20,
-56,
23,
6,
-5,
6,
-19,
-5,
22,
-34,
-14,
30,
-60,
-53,
-19,
17,
3,
-62,
33,
-39,
12,
29,
12,
22,
76,
-33,
-59,
-6,
59,
13,
5,
-9,
-1,
94,
-10,
-10,
-8,
-7,
59,
-13,
2,
-35,
-29,
6,
-21,
3,
40,
-65,
10,
21,
-16,
-4,
-57,
22,
-66,
30,
58,
-37,
-24,
16,
7,
-5,
-34,
-17,
-19,
-23,
20,
-43,
-11,
17,
-57,
8,
-13,
-15,
-1,
0,
6,
1,
1,
9,
-18,
20,
35,
-20,
-62,
-28,
-3,
19,
25,
-3,
-47,
-6,
-28,
25,
10,
28,
0,
-20,
31,
-21,
-6,
41,
-48,
32,
59,
-57,
70,
-37,
-7,
4,
52,
-44,
3,
71,
-16,
6,
-21,
-21,
-3,
25,
-30,
14,
6,
-6,
23,
-25,
9,
3,
-33,
-8,
9,
-16,
55,
3,
29,
48,
-1,
37,
17,
42,
11,
-30,
27,
-4,
-38,
-2,
-10,
41,
-53,
-53,
3,
1,
-23,
-6,
26,
7,
3,
7,
25,
31,
59,
-2,
-25,
17,
1,
-27,
25,
-16,
-6,
41,
22,
-22,
24,
12,
11,
6,
24,
17,
15,
12,
45,
44,
35,
-12,
24,
12,
-29,
-76,
-10,
44,
-41,
43,
-93,
30,
18,
37,
37,
27,
34,
63,
38,
16,
9,
-56,
1,
1,
-41,
-47,
-19,
36,
1,
52,
-39,
-66,
-63,
19,
-75,
0,
-53,
41,
0,
-32,
12,
64,
-6,
17,
-16,
-6,
38,
-17,
-42,
90,
54,
37,
-13,
-47,
-2,
-29,
-56,
-54,
32,
37,
-28,
-24,
5,
-12,
-5,
14,
-17,
42,
34,
-41,
3,
-35,
-25,
3,
-8,
-10,
3,
-4,
3,
17,
-3,
-9,
10,
-48,
28,
-11,
-27,
17,
-8,
23,
-19,
-17,
32,
31,
20,
-15,
20,
2,
90,
72,
-27,
24,
48,
51,
-26,
-34,
58,
0,
12,
-16,
14,
-37,
18,
40,
90,
-5,
-18,
-11,
76,
-63,
0,
53,
6,
-2,
38,
4,
-41,
62,
-55,
-16,
45,
-32,
-14,
51,
-19,
-3,
-17,
10,
-116,
33,
16,
-14,
-77,
-61,
-66,
-61,
-25,
9,
16,
-70,
-27,
57,
-34,
-62,
-32,
-48,
0,
18,
3,
56,
4,
37,
1,
6,
16,
-59,
-2,
26,
24,
-1,
54,
32,
43,
29,
2,
14,
60,
30,
60,
-52,
-86,
14,
-64,
-9,
51,
20,
-3,
-5,
2,
17,
9,
-18,
18,
33,
44,
53,
30,
-45,
-25,
72,
-2,
29,
-37,
44,
-1,
-39,
38,
-15,
-40,
-38,
84,
81,
-17,
15,
14,
-53,
-20,
-3,
4,
68,
1,
-32,
14,
-9,
55,
15,
-42,
0,
-55,
1,
-9,
9,
-16,
-12,
-6,
-49,
-15,
-51,
-39,
-15,
19,
-36,
-46,
37,
22,
37,
-6,
18,
-2,
43,
1,
8,
-4,
25,
-14,
-2,
26,
54,
-31,
7,
-9,
14,
8,
-36,
-27,
53,
38,
34,
24,
42,
-11,
25,
-19,
-60,
-8,
19,
7,
-21,
23,
33,
-1,
52,
4,
-33,
5,
-23,
-17,
53,
37,
-38,
48,
5,
-52,
21,
-23,
-8,
10,
-93,
-22,
15,
9,
-8,
-10,
2,
-8,
36,
41,
-23,
0,
-9,
-4,
-16,
-7,
-23,
33,
-33,
2,
-32,
15,
-27,
-6,
37,
22,
1,
37,
12,
-57,
-40,
-21,
-33,
-3,
-57,
5,
28,
-25,
0,
62,
-38,
-22,
-32,
-30,
27,
-29,
-32,
0,
-19,
31,
-12,
2,
-71,
-53,
15,
14,
22,
37,
22,
30,
-4,
42,
-57,
-7,
32,
-66,
39,
-3,
34,
-1,
-25,
40,
-1,
-23,
-40,
-28,
-44,
50,
3,
-25,
-46,
25,
-8,
92,
10,
5,
0,
27,
50,
-21,
56,
21,
-5,
-63,
30,
1,
12,
46,
-71,
-27,
17,
-38,
3,
11,
-33,
11,
-27,
-9,
31,
51,
12,
13,
-36,
-22,
9,
-5,
23,
-56,
-29,
-26,
-28,
-6,
48,
-19,
33,
43,
55,
-1,
-23,
-36,
-35,
-40,
-24,
36,
45,
54,
-7,
66,
-14,
50,
34,
41,
24,
29,
7,
58,
2,
52,
-3,
46,
56,
-23,
-18,
-45,
-43,
-46,
20,
17,
-49,
37,
-34,
-6,
-12,
4,
16,
14,
53,
-33,
-4,
-8,
27,
-61,
-66,
-46,
-8,
-21,
9,
14,
28,
26,
-34,
-43,
57,
1,
51,
1,
39,
-67,
-3,
-39,
38,
34,
-76,
-5,
13,
-41,
-8,
10,
54,
29,
-13,
55,
-62,
-60,
29,
0,
-7,
-20,
50,
-35,
-43,
-62,
50,
55,
-3,
-35,
-61,
13,
2,
-16,
-39,
-3,
15,
9,
4,
52,
-3,
-67,
19,
-31,
17,
33,
49,
-57,
2,
23,
26,
10,
-38,
39,
36,
-31,
40,
-33,
9,
-27,
30,
-4,
-31,
-52,
38,
-26,
54,
9,
15,
33,
-8,
25,
-28,
58,
-4,
-24,
29,
-25,
38,
14,
19,
-19,
35,
-26,
42,
67,
-53,
19,
-13,
-31,
79,
42,
-58,
36,
-16,
20,
-29,
-21,
-48,
2,
-22,
24,
39,
-40,
20,
-17,
23,
-23,
51,
-1,
-37,
-27,
-57,
-34,
45,
10,
-19,
50,
30,
2,
-17,
20,
-70,
48,
-26,
20,
39,
21,
43,
-27,
-17,
5,
-19,
26,
36,
-9,
17,
7,
-75,
40,
0,
12,
-27,
18,
-40,
-37,
5,
15,
-71,
-39,
-23,
49,
-48,
-66,
39,
2,
4,
-60,
42,
-3,
-19,
8,
0,
2,
-21,
1,
30,
3,
-7,
-11,
-48,
36,
9,
2,
-7,
-6,
17,
-6,
16,
17,
-104,
40,
44,
-46,
-55,
-4,
-2,
-6,
44,
-6,
-3,
-20,
46,
1,
2,
35,
26,
-3,
50
] |
Wade, 0. J.
This was a trial for murder, which resulted in a verdict against the defendant of guilty in the second degree. The only question presented on this appeal^ arose upon the defendant’s challenge to the panel of jurors, which challenge was in substance for the following reasons: First. That when the case was called for trial there were but nineteen jurors in the panel, whereas the law required twenty-four, and that the panel was filled to the requisite number from the body of the county, and not from the one hundred names in the box, selected by the commissioners as provided by law; and second, that the box prepared by the commissioners was used in impaneling United States jurors to try United States causes until all the names were drawn therefrom except two, and that there were no names left therein at the time of the commencement of this trial, and that thereupon the court ordered the sheriff to select jurors to complete the panel from the body of the county.
In support of his challenge the defendant caused to he filed an affidavit of the deputy clerk of the court, which affidavit appears in the bill of exceptions . and is as follows:
“Reuben L. Davis, being duly sworn, deposes and says that he is the deputy clerk of the district court in and for the county of Deer Lodge. That to his own knowledge, the box from which the jurors were to be selected for territorial purposes, and as furnished by the board of county commissioners of said county, was heretofore, in the trial of United States causes, opened and jurors selected therefrom for the purposes of the trial of United States causes before said court, and that by such means, and by venires issued by order of this court, the jurors selected by the county commissioners for the trial of territorial causes has been exhausted entirely, except the regular panel of twenty-four jurors. And the court has ordered a venire for jurors in this cause, which is a territorial case, said regular panel having been exhausted by the means aforesaid and in impaneling the jury in this cause. That jurors have been selected by the sheriff on the last venire issued by order of said court in this cause, solely by said sheriff, and a portion of said jurors are now in the present jury, and others the defendant by his counsel has challenged. That the box containing names of persons selected by the board of commissioners for the trial of causes has not, since the names therein were exhausted, nor since the issuing of the last venire by order of the court to the sheriff, been drawn from in the selection of jurors for the trial of this cause. That a special venire was issued and juries selected by the sheriff from the body of the citizens of the county, by order of the court, whose names were not in the box drawn and selected by the commissioners, and who were not in the panel selected by the commissioners, said box having been exhausted prior to that time by drawing names therefrom in the selection of jurors to serve at this term, a part of said jurors having been drawn to serve in the United States district court, and others selected and summoned to serve in this court to fill the panel of said jurors. That under venire No. 1, issued for thirty trial jurors, to attend this court at this term, twenty-nine persons were served. That some persons so summoned were excused for cause. That, on November 30, 1881, venire No. 2 was issued by order of the court, and five trial jurors, whose names were drawn from the box furnished by the county commissioners. That four of said persons were summoned and appeared, the other not being found, and three jurors were excused for cause. That on December 1, by order of the court, fifteen, names were drawn from the box furnished by the commissioners for jurors to serve in the trial of United States causes, and that, on December 2, forty-eight names were drawn by order of the court from the box furnished by the commissioners for jurors to serve in the tidal of United States causes. That on December 3, two names were drawn by order of the court from said box furnished by the commissioners, and venire issued for the persons so named to appear and serve as jurors to fill the panel of jurors in this court. That the names drawn for jurors to serve as jurors in the United States causes were not returned to the box, and no names remained in the box furnished by the commissioners after the two names mentioned in said last venire were drawn, and that at the commencement of the trial of this cause the panel of twenty-four jurors was full, leaving no other names in the jury box furnished by the county commissioners.
(Signed) “R. L. Davis.”
From all which it appears: first, that when this cause was called for trial, the regular panel of twenty-four jurors was not full; second, that thereupon venires were issued for persons to fill the panel whose names were drawn from the box furnished by the county commissioners, as provided by law; third, that when the trial commenced the panel of twenty-four jurors was full, and that the names of the jurors filling the panel were properly drawn from the box; and fourth, that in so filling the panel, and in drawing names of jurors to serve in causes arising under the constitution and laws of the United States, the names in the box had become exhausted.
These facts do not support the challenge. On the contrary, they show that the jury was properly constituted. It was entirely competent for the court to order that jurors, for the trial of causes arising under the constitution and laws of the United States, be drawn from the box of names selected by the county commissioners for the trial of territorial causes. See Act of Congress of June 30, 1879, Sup. R. S. U. S. vol 1, 498. The rights of the defendant were not thereby affected so long as sufficient names remained in the box to fill the territorial panel with competent jurors. It was a matter of no importance-to him, and he had no right to inquire as to the names in the box, providing the panel was full. In such a case, by no possible process, could the names remaining in the box have found a place on his jury. It was his undoubted right to have a full panel of twenty-four jurors drawn from the box provided by the commissioners, from which, to select a trial jury. Kennon v. Gilmer et al. 4 Mont. 433. This right was fully secured to him as shown by the record and bill of exceptions.
The deficiency in the panel when the cause was called for trial was filled by jurors whose names wei’e drawn from the box, and the defendant and the territory had a full panel from which to select the jury. The statute provides that when, by reason of challenges or other cause, the regular panel becomes exhausted, the court may direct the sheriff to summon from the citizens of the body of the county, and not from the bystanders, so many qualified persons as may be necessary to complete the jury for the pending trial. R. S. 1879, sec. 246, p. M. So that as the names remaining in the box could in no event have been used to fill up the jury after the regular panel had become exhausted, the complaint of the defendant, that names had been drawn from the box to serve as United States jurors, was without foundation.
The judgment is affirmed, with costs.
Judgment affirmed.
|
[
10,
26,
22,
-44,
-20,
-15,
-14,
-18,
-43,
32,
41,
6,
-26,
-9,
15,
-8,
-16,
-6,
80,
-25,
12,
31,
-24,
-36,
-49,
-39,
-46,
30,
-41,
-26,
53,
30,
-24,
-36,
42,
1,
35,
-2,
-24,
41,
-15,
9,
-23,
10,
6,
31,
34,
-11,
-37,
29,
56,
-48,
7,
4,
-8,
-14,
-15,
0,
28,
-3,
7,
-23,
-8,
0,
-15,
-62,
-25,
-27,
-11,
21,
-22,
-67,
-18,
4,
45,
-43,
-21,
-41,
-9,
-15,
3,
27,
11,
-60,
-53,
-54,
45,
-35,
5,
23,
41,
8,
-8,
-15,
62,
8,
71,
-1,
21,
23,
10,
-4,
-14,
4,
-15,
-11,
-57,
19,
50,
-5,
28,
-18,
-33,
5,
-68,
-14,
1,
-25,
-12,
-5,
16,
-6,
26,
1,
-26,
25,
-10,
7,
-29,
10,
49,
14,
33,
-8,
-41,
-1,
-42,
-43,
74,
54,
-1,
45,
-3,
-29,
12,
-11,
-13,
67,
-14,
53,
4,
7,
6,
-23,
9,
-44,
29,
-31,
7,
17,
-3,
28,
4,
-79,
-9,
4,
-36,
-26,
-27,
-57,
-30,
-1,
62,
20,
25,
-25,
-10,
-70,
5,
19,
0,
37,
5,
36,
12,
26,
-29,
-15,
-22,
6,
29,
32,
-8,
-59,
65,
21,
-12,
-14,
62,
0,
2,
-28,
0,
0,
-10,
37,
-29,
-2,
74,
-8,
-8,
-6,
17,
31,
-38,
-22,
-46,
-50,
18,
28,
-77,
-19,
5,
42,
-8,
-8,
6,
59,
0,
7,
41,
-18,
-3,
44,
18,
-90,
0,
-47,
4,
46,
-60,
-53,
92,
31,
26,
18,
-5,
23,
-7,
22,
49,
35,
45,
-3,
-56,
57,
8,
-40,
-56,
-42,
-37,
-5,
29,
26,
-61,
-8,
7,
9,
-12,
21,
-27,
-37,
14,
17,
47,
0,
13,
21,
-10,
-37,
-11,
21,
19,
9,
-69,
0,
-44,
1,
3,
-5,
-15,
21,
10,
-8,
26,
34,
57,
6,
57,
-58,
25,
-15,
18,
-55,
-40,
-4,
48,
1,
-17,
24,
24,
25,
24,
-8,
29,
53,
-11,
-49,
55,
42,
-22,
-2,
-34,
-50,
32,
-13,
-19,
-5,
-11,
26,
-73,
18,
7,
-11,
7,
-33,
-31,
9,
15,
49,
25,
-48,
-10,
-1,
41,
5,
-27,
-24,
-44,
-16,
24,
21,
-32,
-84,
12,
-60,
-30,
-17,
51,
-51,
0,
-10,
5,
-1,
18,
-70,
22,
-41,
14,
-27,
14,
44,
31,
-57,
46,
-9,
-10,
6,
22,
1,
-77,
33,
30,
-30,
46,
70,
84,
-31,
21,
57,
39,
-14,
-20,
18,
13,
29,
-59,
-40,
30,
-29,
-48,
37,
-11,
-39,
-67,
10,
-63,
49,
-25,
-15,
-42,
-14,
58,
-15,
57,
-16,
-60,
-24,
32,
20,
27,
-42,
58,
30,
2,
18,
-2,
18,
-15,
-67,
-18,
-23,
-18,
29,
8,
49,
-4,
5,
31,
-9,
-31,
-6,
-35,
9,
5,
-13,
25,
39,
60,
22,
-13,
7,
-16,
-25,
44,
26,
14,
-3,
27,
37,
-4,
38,
-6,
-38,
41,
50,
-14,
22,
-24,
12,
37,
2,
14,
-26,
13,
28,
11,
44,
56,
-10,
20,
0,
-14,
-14,
-62,
11,
-1,
-40,
39,
-7,
4,
6,
-17,
-8,
-73,
5,
13,
27,
-15,
21,
-29,
2,
-9,
-29,
-10,
38,
40,
-37,
22,
-30,
14,
21,
-38,
-9,
-9,
-1,
-9,
-17,
12,
5,
35,
-46,
-37,
-21,
0,
6,
-2,
-1,
21,
-46,
8,
6,
21,
58,
21,
31,
-37,
-34,
27,
-29,
36,
3,
103,
10,
1,
3,
0,
-20,
55,
-53,
58,
29,
-2,
13,
-7,
-37,
-19,
-73,
3,
16,
-21,
-4,
-1,
-2,
23,
-23,
36,
-15,
64,
3,
17,
23,
-56,
41,
14,
-9,
1,
78,
-20,
29,
4,
-14,
-53,
1,
23,
-12,
23,
18,
-18,
66,
-12,
-21,
-5,
-15,
-10,
2,
-44,
-31,
-7,
-13,
-17,
5,
-19,
21,
14,
8,
-40,
-4,
10,
-2,
10,
-53,
3,
-38,
-4,
33,
-27,
-1,
-36,
24,
-14,
9,
0,
-4,
7,
-25,
-39,
-26,
-46,
-27,
-20,
-31,
-31,
31,
-66,
-7,
-16,
13,
-31,
10,
-1,
19,
5,
-13,
6,
-29,
-2,
-21,
19,
-75,
-36,
-8,
29,
-57,
48,
-9,
8,
32,
22,
-5,
7,
18,
-35,
10,
-6,
-13,
-5,
-3,
-14,
5,
40,
-71,
-2,
-44,
-15,
-15,
-3,
10,
6,
-19,
73,
-34,
-24,
-48,
45,
0,
17,
-12,
-5,
-18,
3,
39,
46,
6,
-7,
-26,
11,
-32,
-42,
-52,
32,
-74,
-35,
24,
33,
-4,
0,
-27,
13,
-44,
-45,
3,
-42,
-15,
7,
-39,
-44,
-31,
-18,
84,
5,
-42,
51,
56,
3,
27,
9,
27,
34,
-48,
49,
-13,
-44,
49,
40,
8,
-24,
-21,
-14,
46,
39,
-54,
-15,
-74,
32,
-8,
13,
-36,
3,
-16,
86,
43,
48,
-30,
-24,
30,
-15,
-16,
-59,
-33,
21,
5,
33,
20,
0,
37,
27,
13,
56,
38,
-20,
23,
30,
35,
4,
48,
18,
-10,
5,
-16,
19,
12,
-2,
-77,
41,
-6,
-23,
1,
-7,
-19,
8,
-46,
8,
87,
-36,
-91,
48,
23,
29,
44,
57,
18,
16,
35,
16,
-1,
59,
-23,
-10,
21,
39,
41,
-8,
0,
-23,
-63,
-16,
-71,
18,
-14,
17,
9,
31,
-47,
55,
-3,
-34,
1,
-6,
12,
-14,
-15,
-13,
50,
3,
-6,
47,
85,
-57,
51,
42,
61,
7,
-11,
-23,
14,
11,
8,
-48,
-6,
25,
16,
2,
-30,
-72,
-34,
96,
61,
23,
3,
-24,
23,
34,
-38,
-10,
17,
46,
-28,
-60,
-13,
10,
13,
-26,
17,
9,
28,
-41,
57,
-14,
17,
-4,
-84,
-11,
33,
32,
-25,
24,
-43,
-69,
6,
-32,
15,
14,
-23,
24,
4,
15,
53,
49,
9,
11,
42,
-22,
36,
30,
-42,
56,
-44,
-8,
29,
11,
-54,
-51,
8,
56,
-33,
-30,
-44,
0,
-13,
-33,
6,
-5,
58,
12,
-14,
45,
4,
13,
19,
-55,
-27,
-16,
-31,
-40,
51,
-34,
-46,
-49,
-22,
6,
-35,
-10,
-15,
-14,
-5,
-26,
-17,
-68,
43,
8,
-10,
28,
15,
15,
13,
-7,
-23,
45,
17,
-23,
21,
27,
37,
27,
19,
13,
-29,
28,
22,
85,
25,
9,
-95,
64,
-14,
-12,
3,
-7,
-13,
-20,
26,
41,
7,
10,
-16,
4,
-21,
-21,
8,
-36,
6,
-18,
22,
-37,
18,
-39,
-21,
-13,
-19,
10,
23,
6,
-6,
26,
-29,
-13,
70,
-9,
-19,
-25,
-107,
29,
-28,
-56,
40,
12,
-13,
-60,
-33,
-4,
-26,
8,
23
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 The State appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, granting the motion of Christina Nelson (Nelson) to dismiss a charge against her of Tampering with or Fabricating Physical Evidence, a felony, under § 45-7-207(l)(b), MCA. Nelson argued that the Information did not allege a cognizable basis to find probable cause that the charged offense had occurred. We reverse and remand after addressing the following issue:
¶2 Did the District Court err by dismissing the State’s charge of fabricating physical evidence under § 45-5-207(l)(b), MCA?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On August 10,2012, at approximately 11 p.m., Nelson went to the Billings Clinic to seek medical treatment. She reported to medical personnel that earlier in the day her ex-boyfriend, A.S., had raped her. The hospital staff contacted law enforcement to report the crime. Officer Richardson of the Billings Police Department went to the Clinic to speak with Nelson. Nelson agreed to give a tape-recorded statement of the events that transpired that day. On the recorded statement, Nelson recounted that she left work at approximately 5:30 p.m. that evening. As she was walking through the parking lot, A.S. approached her from behind and told her he missed her and wanted to be with her. Nelson told A.S. to go away and tried to leave. A.S. slapped Nelson in the face, punched her nine times in the stomach, and forced her into the back of his van. Nelson remembered her pants being off and A.S. having sex with her. After A.S. “finished,” he allowed her to leave the van. Nelson then got into her car and left. None of her coworkers were around, and she did not believe anyone had witnessed the incident. After departing in her vehicle, Nelson went to a bar to have a drink with a friend. After leaving the bar, she arrived home at 7 p.m. Nelson and her husband, Miles Nelson (Miles), went to the gym together. While at the gym, Nelson sat in the sauna and hot tub, and took a shower. At approximately 10 p.m., Nelson told her husband about the rape, and he took her to the Clinic.
¶4 At the Clinic, Nelson agreed to submit to a Sexual Assault Nurse Examination (SANE) that is memorialized in a forensic medical report. Nelson signed a consent form allowing medical personnel at the Clinic to obtain Nelson’s medical history and details of the alleged attack; perform a physical examination; screen Nelson for pregnancy and sexually transmitted diseases; collect evidence from her person relevant to the alleged rape; photograph any physical injuries; and release all of this information and evidence to law enforcement to facilitate a criminal investigation. Nelson also signed a separate authorization allowing the Clinic to disclose private health care information to the Billings Police Department for the purposes of a “police investigation.”
¶5 During the SANE, Nelson was curled up in the fetal position, teary-eyed and soft spoken. Nelson told the nurse conducting the examination substantially the same story as she had told Officer Richardson. When asked about the sexual intercourse she had engaged in during the last five days, Nelson reported that she had engaged in sexual intercourse two days prior, on August 8, 2012, during which a condom was used. Nelson told the nurse she was unsure whether or not A.S. had ejaculated. The nurse found moist secretions in Nelson’s vaginal swabs. Law enforcement collected the vaginal swabs and preserved them as evidence in the ongoing investigation.
¶6 On August 28, 2012, Detective Baiun of the Billings Police Department interviewed Nelson’s husband, Miles. He reported that when Nelson arrived home on August 10,2012, he did not observe any injuries to Nelson. Miles said that they went to the gym together and returned home at about 8:30 p.m. At that point they engaged in unprotected sexual intercourse, which Nelson initiated. Afterwards, he asked Nelson if something was wrong. At that time, Nelson disclosed to him that A.S. had raped her earlier that day. Nelson apologized for wanting to have sex, but said she just wanted to forget about the rape. Nelson told Miles she only wanted to go to the hospital to get tested for sexually transmitted diseases (STDs). However, accordingto the SANE report, Nelson refused STD medications.
¶7 During the course of the investigation, Detective Baiun obtained surveillance videos of Nelson’s workplace parking lot. The videos showed Nelson leaving the building at the end of the day on August 10, 2012. Nineteen seconds after Nelson left the building, Nelson’s Mend and coworker, Sarah Kruger, also left the building. The video shows both Nelson’s and Sarah’s vehicles leaving the parking lot at approximately 5:40 p.m. The video does not show anyone approaching Nelson after she exited the building.
¶8 Detective Baum interviewed A.S., who Nelson had accused of the crime, on August 29,2012, and September 5,2012. A.S. reported that he was not in Billings on August 10,2012. He left Billings around 8:30 a.m. on August 9, 2012, and arrived in Seattle around 11 p.m. that evening. A.S. provided receipts for purchases made on August 9,2012, in Billings and Missoula, as well as locations in Idaho and Washington. A.S. stayed in Seattle until August 18,2012. A.S. provided receipts for purchases made in Washington between August 10 and 16, 2012. He also provided Detective Baum with a photograph on his cellphone of a highway sign on August 9, 2012, showing he was 206 miles from Seattle.
¶9 Detective Baum also learned from the Office of Victim Services that Nelson had previously submitted to four other SANEs, the results of which were in the possession of law enforcement. Two of the examinations and resulting reports occurred in 2009, and two occurred in April, 2012. One of the 2009 examinations, and both of the 2012 examinations occurred in Yellowstone County. In the two 2012 reports, Nelson had reported to law enforcement that she had been assaulted at her residence on Lewis Street in Billings, although the SANE reports indicated that Nelson reported the rapes had occurred in dorm rooms at Rocky Mountain College. Law enforcement further learned that in April 2012, Nelson reported that A.S. had allegedly raped her.
¶10 Detective Baum attempted to contact Nelson numerous times after first meeting with her. On August 29,2012, Nelson sent Detective Baum an email stating she no longer wanted to pursue charges against A.S., and that she was revoking the medical release she signed at the Clinic. Nelson stated that she had signed the release while on pain medication.
¶11 On December 18, 2012, the District Court granted the State’s motion for leave to file an Information charging Nelson with one count of Tampering with or Fabricating Physical Evidence, a felony, in violation of § 45-7-207(l)(b), MCA. The Information alleged that Nelson,
believing that an official proceeding or investigation was pending or about to be instituted, made, presented or used records, documents, or other things, particularly a forensic medical exam, patient medical disclosure authorizations, and other reports or statements to law enforcement officers and medical professionals, knowing them to be false and with the purpose to mislead law enforcement officers and/or medical professionals, who were engaged in the investigation.
¶12 Nelson requested a continuance of the first jury trial, scheduled for April 22, 2013, and it was subsequently rescheduled for July 23, 2013. On June 17, 2013, Nelson filed a motion to dismiss the charge, asserting that “the current charge of tampering with physical evidence, embodied in the Information and supported by the Supporting Affidavit, is insufficient as a matter of law, and thus the charge must be dismissed.” Nelson argued in part that a person’s statement, even if recorded electronically or in writing cannot meet the definition of “physical evidence” for purposes of violating the statute. She also argued that nothing in the forensic examination was itself “false” — specifically that Nelson’s vaginal secretions were not false. The State opposed the motion.
¶13 On July 23, 2013, the District Court issued its order granting Nelson’s motion to dismiss the charge. The court’s order dismissing the charge stated:
It is not in dispute that [Nelson] lied to Billings Clinic and the Billings Police Department as to the identity of the perpetrator of the alleged rape. While it is unlikely that [Nelson] was raped or sexually assaulted at all, it is technically possible.
So, if the State believes [Nelson] was raped or sexually assaulted, the charges against [Nelson] at least have an arguable basis....
However, it is apparent the State does not think [Nelson] was sexually assaulted or raped....
Obviously, the State believes [Nelson] to be untruthful about the August, 201[2], events of this case and probably about the 2009 and 2012 reports, as well.
This case turns on M.C.A., §45-7-207(l)(b). Sub-part (b) is the key:
“[ ] (b) makes, presents, or uses any record, document, or thing knowing it to be false [ ]”
The evidence and arguments clearly establish that [Nelson] knew her allegations of sexual assault and rape were false. Further, by participating in the SANE Report, she helped make records and documents. However, since there was no sexual assault or rape as described by [Nelson], there was no physical evidence of the sexual assault or rape that she described.
Even though [Nelson] was knowingly untruthful about events and arguably with the purpose to mislead, the SANE Report, itself, is not false or inaccurate and is only evidence of [Nelson’s] untruthfulness.
(Footnote omitted.) The order concluded that more specific statutes cover the charged conduct such as “perjury, false swearing, unsworn falsification to authorities and false reports to law enforcement.” The court granted the State 30 days to amend the charges against Nelson. Instead, the State timely appealed the District Court’s decision.
¶14 The State argues the District Court’s dismissal of the charge in this case is a violation of the discretion afforded to prosecutors in charging decisions. It notes that all of the possible charges referenced by the court as more appropriate under the circumstances are misdemeanors, and given the “extreme measures” Nelson employed to intentionally mislead the investigators, the prosecutor should be permitted to charge a felony offense, if supported under the facts, “based upon the harm Nelson caused, the potential harm she could have caused, and her culpability.” Specifically, the State claims the court incorrectly interpreted § 45-7-207, MCA, by concluding that the charge could only be brought if the State actually believed a rape occurred, and by too narrowly defining the term “physical evidence.”
¶15 Nelson essentially concedes that the District Court erred in concluding a crime must have been committed before § 45-7-207, MCA, can be violated. Nonetheless, she urges this Court to uphold the dismissal under the “right result, wrong reason” appellate rule, citing State v. Ellison, 2012 MT 50, ¶ 20, 364 Mont. 276, 272 P.3d 646; State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. She argues the evidence alleged by the State in this case cannot be considered “false,” nor can it be considered “physical evidence.”
STANDARD OF REVIEW
¶16 We review a district court’s decision on a motion to dismiss in a criminal case de novo. State v. Dugan, 2013 MT 38, ¶ 13, 369 Mont. 39, 303 P.3d 755. When the dismissal is based upon the interpretation or construction of a statute, we review for whether the district court’s interpretation or construction is correct. State v. Madsen, 2013 MT 281, ¶ 6, 372 Mont. 102, 317 P.3d 806 (citing State v. Brown, 2009 MT 452, ¶ 6, 354 Mont. 329, 223 P.3d 874).
DISCUSSION
¶17 This Court construes a statute by reading and interpreting the statute as a whole without isolating specific terms from the context, and “must account for the statute’s text, language, structure and object.” State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383, 195 P.3d 819 (quotation omitted). We must attempt to give effect to the purpose of the statute and avoid an absurd result. Triplett, ¶ 25. We thus evaluate the Tampering with or Fabricating Physical Evidence statute. Section 45-7-207(l)(b), MCA, provides:
A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person: ... makes, presents, or uses any record, document, or thing knowing it to be false and with purpose to mislead any person who is or may be engaged in the proceeding or investigation.
The annotator’s note explains:
The purpose of this section is the protection of physical evidence. To this end, the section prohibits... the making or presentation of physical evidence known to be false. To establish the offense, it must be shown that the accused believed an official proceeding or investigation was pending or imminent and that he acted either with the purpose of impairing the availability or verity of physical evidence or that he knowingly presented false evidence with the purpose of misleading. It should be noted that to complete the offense the accused need merely do the proscribed acts with the requisite mental state — he need not succeed ... in misleading the investigation. The most significant differences between this section and prior law are the increase in scope to include investigations as well as trials and other formal proceedings and the increase in penalties from punishment as a misdemeanor to punishment by up to ten years.
¶18 Neither the statute nor the annotations provides support for the District Court’s conclusion that § 45-7-207, MCA, is only applicable when the evidence at issue is related to an actual, underlying crime. While a violation of the statute may be charged in cases where the defendant is alleged to have covered up an actual crime, the language of the statute only requires that a “proceeding or investigation” be pending. The annotator’s note states that the statute was meant to broaden the scope of prior law by including “investigations as well as trials and other formal proceedings.” It is irrelevant whether the State believed that Nelson was actually assaulted because, as explained in the annotator’s note, it is not necessary that the defendant charged by this statute actually succeed in misleading the investigation.
¶19 State v. Clifford, 2005 MT 219, 328 Mont. 300, 121 P.3d 489, is instructive here. In Clifford, the defendant was charged with tampering with or fabricating physical evidence, along with other charges, for creating lewd and threatening letters that were sent to various parties, including the defendant herself. The defendant was vocal in accusing specific people of authoring the letters, and an investigation was conducted of those she falsely accused, including a search of the accused’s home pursuant to a warrant. Clifford, ¶¶ 9,14. The investigation revealed evidence implicating the defendant as the source of the letters, and she was subsequently charged and convicted under § 45-7-207, MCA. While no charges were filed against the falsely accused party, and the defendant had not actually been threatened by anyone since she wrote the letters herself, the conviction was upheld.
¶20 We considered whether a conviction under this statute is permissible when the defendant was acquitted of the underlying crime in State v. Scheffer, 2010 MT 73, ¶ 2, 355 Mont. 523, 230 P.3d 462. Scheffer was questioned at the police station regarding allegations of sexual intercourse without consent based upon the victim’s report that Scheffer had inserted his fingers into her vagina. Scheffer, ¶¶ 3-6. The officer told Scheffer they wanted to swab his fingers to test for the presence of the victim’s DNA, to which Scheffer consented. When the officer left the room to gather the swabbing materials, Scheffer stuck his fingers “entirely in his mouth, moved them back and forth, took them out, rubbed his hands together, and then wiped his fingers on his jeans.” Scheffer, ¶ 8. Scheffer was charged with sexual intercourse without consent and tampering with or fabricating physical evidence. Scheffer, ¶ 9. The jury acquitted him of sexual intercourse without consent, but convicted him of tampering. Scheffer, ¶ 12. On appeal, we rejected Scheffer’s argument that it was a “practical impossibility” for him to tamper with evidence of a non-existent crime, and that the jury “could not have logically concluded that Scheffer attempted to tamper with evidence related to a rape that never occurred.” Scheffer, ¶ 43.
¶21 Thus, the statute may apply in cases where an investigation is pending or imminent yet no underlying crime has actually been committed and no charges are brought against a falsely accused party. Here, the State need only prove that Nelson believed an investigation or official proceeding was about to be instituted, and that she made or presented evidence that she knew to be false with the purpose to mislead the investigation. Thus, we next examine whether the alleged conduct satisfies the remaining statutory requirements.
¶22 The term “physical evidence” is not defined in the statute or anywhere else in the code. “Evidence” is defined as “the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses.” Section 26-1-101(2), MCA. Nelson argues this provision recognizes “four distinct types of evidence,” and that writings and witness statements cannot be considered “physical objects, or other things presented to the senses.” She thus contends that when the statutes are read together, the term “physical evidence” under § 45-7-207, MCA, specifically excludes oral statements, whether or not recorded, as well as testimony and writings. However, such a narrow construction of “physical evidence” would negate the purpose of the tampering statute and is contradicted by our prior cases.
¶23 In State v. Staat, 251 Mont. 1, 822 P.2d 643 (1991), we upheld a conviction for tampering with evidence when the defendant destroyed a note written by a homicide victim. Similarly, in Clifford, we upheld the conviction of a defendant for manufacturing threatening letters while alleging that someone else had authored them. In both cases, the documents were clearly writings, and undoubtedly constituted “physical evidence.” A writing qualifies as a physical item or object that may be evidence. Similarly, a recorded oral statement, which is necessarily “presented to the senses” when played, § 26-1-101(2), MCA, may be physical evidence in any particular case. Thus, rejecting Nelson’s narrow interpretation of what may constitute “physical evidence,” we look to the evidence at issue in this case.
¶24 Here, the State alleged that the “forensic medical exam, patient medical disclosure authorizations, and other reports or statements to law enforcement officers and medical professionals” were items of physical evidence that were made, presented, or used by Nelson, knowing that they were false. Nelson argues that her oral statements to the forensic nurse and to law enforcement cannot be considered “physical evidence” even though they were documented in a written SANE report and tape recorded. She also contends the tape recording of her statement by Officer Richardson, the SANE report created by the forensic nurse, and the disclosure forms were not made, presented, or used by her as the statute requires.
¶25 While Nelson’s oral statements to law enforcement and medical professionals may not, by themselves, be “physical evidence,” Nelson went far beyond merely giving false oral statements. Nelson presented herself for physical examination by a forensic nurse, allowing the nurse to collect bodily evidence and photograph any injuries for use in the sexual assault investigation. The vaginal swabs taken from Nelson were preserved as evidence of the alleged offense, and were potentially admissible as evidence in a trial against A.S. This evidence was collected in this case as a result of Nelson’s oral statements claiming she suffered a sexual assault, which cannot be viewed in isolation. Because Nelson is charged with only one count of fabricating physical evidence, we decline to address each specific statement given by Nelson, each form signed by Nelson, and all documents or recordings made during the course of the investigation. Here it is only necessary to focus on the physical evidence produced during the SANE, the collection of which was prompted by Nelson’s statements and the documents she signed.
¶26 Nelson offers several arguments for why the swabs cannot be considered “false” for purposes of the statute. First, because it is not alleged that she altered them in some way, she asserts they cannot be considered false “in any sense of that word.” Second, because “she did not affirmatively state that A.S. ejaculated into her vagina, but rather said she was unsure,” there can be no inference that she “tampered” with her own bodily fluids by having intercourse before going to the hospital. Nelson alleges that her presentation of her body and its fluids “was true, and unimpaired by any obstructive acts that might obliterate their integrity.” Because the evidence collected was “fully accurate,” A.S.’s “alleged innocence would have been supported by the proper analysis of [Nelson’s] vaginal secretions.” Finally, she argues that the bodily fluids collected by the swabs “cannot be physical evidence, available for tampering, until and when they are actually drawn for evidence in a criminal case,” citing State v. Peplow, 2001 MT 253, 307 Mont. 172, 36 P.3d 922.
¶27 Nelson’s arguments are unpersuasive. Although Nelson’s body and the samples taken therefrom were not “false” in the sense of being forged or fabricated, they were certainly false in what she represented them to be — evidence of a physical assault. She presented herself for examination of an alleged rape by A.S. and represented that the evidence found during the examination would be evidence of the alleged rape. Importantly, she instigated unprotected sexual intercourse with her husband before going to the hospital, thereby enhancing the possibility of the presence of fluids in her body, and then falsely reported to the forensic nurse that her last consensual intercourse had been two days prior, during which a condom was used. This misled the nurse to believe that fluids found during the examination would be related to the alleged rape. Thus, the evidence presented and collected was false for purposes of § 45-7-207, MCA. Nelson’s qualified statement that she was “unsure” whether A.S. had ejaculated cannot shield Nelson from these otherwise false statements. Additionally, Nelson’s assertion that proper analysis of this evidence would have exonerated A.S. of the alleged assault is irrelevant under the statute, which looks to the defendant’s intentions, not her ultimate success. As in Clifford, it is irrelevant that further investigation ultimately revealed the accused party’s innocence.
¶28 Finally, Nelson’s reliance on Peplow is misplaced. In Peplow, we considered whether a defendant’s blood, while still in the body, could be considered “physical evidence” of blood alcohol content such that the consumption of alcohol after a motor vehicle accident could be deemed to be tampering with evidence. We concluded it could not be considered physical evidence prior to the removal of a sample from the body. Peplow, ¶ 26. We held that this conclusion would avoid the absurd result of “any driver who eats, sleeps, or even receives medical treatment” after an accident being potentially culpable for tampering with evidence. Peplow, ¶ 27. Here, even if we were to conclude that the secretions swabbed from Nelson’s body were in “a state of biochemical flux,” as blood in the veins is, Peplow’s rationale would nonetheless fail to apply because the evidence had been removed from Nelson’s body, with her consent, and preserved for later testing. These samples are thus “physical evidence” under any interpretation of Peplow. Nelson’s presentation and the collection of the samples is sufficient to sustain the charge.
¶29 We do not here decide whether Nelson is guilty, but rather, that under the facts as alleged by the State, a rational trier of fact could find the essential elements of the charged offense beyond a reasonable doubt. See State v. Rosling, 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102. As alleged, Nelson engaged in unprotected, consensual intercourse with her husband immediately prior to going to the hospital. When she arrived at the hospital she falsely reported that she had been raped and falsely told the nurse that her last consensual intercourse had been two days prior, and that a condom had been used. Nelson agreed to participate in a SANE, during which the nurse collected vaginal secretions indicating recent sexual intercourse that could have been consistent with the rape allegation. The secretions were preserved as evidence. As the State alleges, “Nelson used her own vaginal secretions, which were indicative of recent intercourse, to mislead the nurse and law enforcement to believe that A.S. had raped her.” Based on the State’s allegations, there are sufficient facts from which a rational trier of fact could conclude that each element of the charged offense had been proven.
¶30 We reverse the District Court’s dismissal of the charge under § 45-7-207(l)(b), MCA, and remand for further proceedings consistent with this opinion.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON and WHEAT concur.
As no trial or other hearing has occurred in this case, the following recitation of facts is as alleged by the State.
Nelson does not present argument supporting the District Court’s reasoning on this issue, and states “[t]he District Court did rule that as no rape occurred, no physical evidence of such crime was at issue. In so ruling it may have misapprehended the nature of false evidence.”
Nelson argues that by only charging one count, the State did not provide fair warning of the nature of the charged offense. She also makes a cursory argument that by not clearly defining the elements of the crime, the statute is potentially void for vagueness. We decline to address these arguments raised for the first time on appeal and without full briefing. M. R. App. P. 12(l)(f).
|
[
-10,
-29,
7,
31,
-23,
-22,
-44,
-5,
-39,
26,
8,
3,
27,
-54,
-11,
0,
-17,
-33,
27,
-51,
28,
16,
9,
-1,
-40,
-39,
8,
5,
4,
1,
-4,
24,
26,
-52,
68,
15,
38,
61,
-35,
22,
30,
28,
-14,
-36,
9,
46,
9,
51,
-27,
20,
31,
-77,
-61,
-18,
35,
-27,
-28,
1,
22,
13,
-52,
-4,
-26,
-37,
1,
-41,
54,
18,
-32,
2,
26,
2,
-63,
-34,
-13,
5,
-14,
19,
-2,
30,
20,
19,
-6,
37,
99,
-46,
27,
-14,
25,
1,
0,
-17,
-26,
-52,
19,
12,
4,
-61,
50,
-24,
-64,
16,
-44,
51,
-13,
43,
-17,
-13,
18,
-25,
10,
-41,
-2,
-8,
7,
-16,
27,
36,
0,
0,
34,
55,
-8,
24,
17,
14,
31,
6,
22,
21,
-18,
-25,
9,
-35,
-4,
-3,
-33,
-16,
-3,
43,
-21,
6,
50,
43,
2,
55,
-4,
11,
19,
21,
10,
-7,
-10,
33,
2,
-45,
-35,
-58,
-31,
17,
-2,
-13,
-6,
43,
12,
21,
32,
10,
22,
-21,
27,
-3,
-65,
19,
27,
46,
-90,
-14,
-22,
-37,
16,
50,
13,
3,
7,
12,
6,
-26,
25,
6,
-35,
29,
-13,
-11,
49,
2,
-5,
48,
35,
-43,
37,
-6,
47,
-3,
-17,
9,
54,
-7,
59,
3,
0,
40,
-19,
-28,
-24,
-46,
12,
-65,
-17,
6,
-24,
-44,
33,
-8,
-24,
11,
15,
1,
5,
-18,
-18,
13,
-2,
-62,
-30,
-9,
3,
-42,
32,
-1,
-17,
-45,
-20,
2,
33,
-8,
-45,
-24,
-48,
-19,
21,
-26,
33,
59,
-1,
-33,
53,
26,
-39,
-23,
-2,
21,
17,
51,
-15,
21,
-15,
14,
-5,
13,
-9,
5,
15,
-36,
11,
-26,
-15,
37,
27,
46,
-9,
-10,
-1,
20,
9,
-1,
-47,
22,
43,
-21,
-14,
-68,
-42,
-33,
2,
-31,
12,
-16,
-27,
-1,
13,
-7,
13,
-1,
-27,
-15,
20,
33,
-22,
-37,
53,
46,
-51,
30,
28,
-33,
-36,
-26,
16,
-14,
-36,
-15,
-44,
-82,
-47,
-67,
0,
-49,
-24,
-42,
-23,
75,
11,
43,
37,
-12,
11,
-7,
-4,
-41,
-9,
-43,
30,
-15,
-88,
62,
9,
19,
-12,
-23,
-21,
-48,
36,
20,
-21,
7,
-28,
-32,
-12,
-38,
-23,
-16,
-36,
-32,
-3,
11,
18,
-19,
15,
22,
-53,
-90,
7,
-6,
-22,
-24,
10,
-22,
0,
-10,
0,
-3,
44,
15,
-4,
34,
33,
-50,
-5,
14,
27,
-56,
9,
-6,
-53,
-22,
-50,
-3,
4,
-6,
26,
20,
60,
-8,
-48,
-51,
24,
-56,
-4,
-18,
20,
-35,
9,
37,
18,
-3,
-34,
-3,
2,
8,
15,
0,
-27,
-40,
33,
30,
-25,
-26,
19,
-40,
-14,
33,
-20,
24,
27,
36,
-33,
10,
9,
-6,
-10,
-5,
-27,
-3,
-23,
23,
27,
18,
21,
-12,
1,
9,
14,
-4,
0,
62,
19,
12,
-10,
-56,
6,
-8,
0,
-9,
22,
30,
-29,
-62,
-7,
39,
33,
-2,
-23,
-16,
45,
65,
-23,
26,
-22,
-57,
62,
18,
26,
-22,
49,
62,
-7,
-47,
2,
-35,
18,
10,
-36,
44,
-19,
37,
11,
-3,
-10,
-22,
-18,
-34,
-55,
13,
13,
-32,
37,
9,
-19,
12,
-13,
26,
-5,
-34,
-38,
9,
20,
-55,
26,
27,
13,
50,
15,
-29,
-58,
-15,
-30,
-64,
-1,
-12,
31,
14,
-14,
17,
39,
14,
6,
-56,
62,
6,
16,
-3,
32,
-18,
32,
-6,
26,
27,
4,
32,
27,
31,
54,
-12,
14,
-13,
43,
16,
-19,
3,
-19,
3,
31,
14,
16,
44,
-37,
-44,
32,
-79,
29,
26,
-41,
0,
-9,
8,
-4,
-12,
-16,
70,
23,
52,
-32,
36,
-81,
-41,
60,
-16,
0,
-40,
2,
-34,
22,
-1,
-10,
-10,
18,
-28,
-57,
12,
48,
-56,
19,
18,
35,
9,
37,
6,
18,
-8,
0,
9,
40,
-4,
19,
-32,
-28,
-23,
-7,
12,
-58,
-12,
14,
11,
-31,
-15,
-50,
13,
55,
-47,
-23,
-23,
27,
5,
40,
-13,
17,
28,
-34,
-43,
74,
91,
17,
41,
5,
22,
28,
-4,
-45,
-60,
6,
6,
13,
-37,
10,
20,
33,
17,
44,
29,
8,
-2,
-16,
28,
1,
25,
27,
7,
0,
-5,
-15,
-5,
4,
28,
50,
-49,
20,
-72,
21,
-23,
38,
-22,
-8,
-15,
7,
1,
-19,
17,
-5,
3,
-9,
15,
-22,
36,
50,
14,
-15,
16,
-33,
16,
-13,
39,
-10,
-30,
43,
2,
-34,
-28,
-12,
33,
35,
31,
-37,
-33,
-26,
-27,
-23,
49,
-57,
-1,
-37,
19,
-29,
24,
-12,
-26,
-2,
22,
25,
0,
7,
7,
-26,
39,
-13,
5,
-6,
66,
31,
73,
-8,
13,
-4,
-26,
-33,
-2,
58,
-26,
52,
-15,
16,
-2,
15,
-3,
-43,
-16,
15,
-30,
-58,
-14,
66,
21,
9,
-26,
-10,
-21,
17,
31,
51,
1,
32,
-7,
34,
11,
-35,
9,
16,
19,
1,
-4,
42,
-1,
-32,
12,
-24,
-41,
-18,
28,
-3,
42,
25,
44,
22,
28,
5,
17,
2,
-47,
-32,
53,
-11,
0,
14,
-6,
-46,
20,
-20,
16,
12,
-19,
-10,
46,
0,
14,
11,
-34,
-24,
-19,
-9,
-72,
33,
-63,
-45,
-14,
-15,
-10,
-7,
-45,
3,
-30,
2,
29,
19,
-37,
0,
41,
8,
-11,
-6,
76,
-23,
41,
6,
-12,
59,
5,
58,
10,
53,
28,
8,
31,
-5,
-16,
3,
24,
8,
53,
26,
-10,
-21,
24,
-55,
-34,
-42,
-23,
36,
-40,
12,
-23,
3,
-29,
49,
47,
-48,
14,
30,
-45,
-29,
-2,
24,
6,
-33,
-38,
26,
-33,
-34,
21,
-20,
-20,
-4,
26,
28,
26,
-26,
29,
-25,
-30,
10,
-52,
11,
-38,
-3,
17,
41,
-4,
10,
1,
-6,
5,
-34,
17,
63,
-29,
5,
18,
-39,
4,
-2,
2,
-18,
21,
91,
60,
21,
14,
-63,
-26,
-63,
61,
-38,
34,
-52,
-16,
-22,
18,
-4,
-5,
12,
37,
-4,
-5,
21,
-17,
34,
25,
-35,
-38,
-36,
-1,
0,
18,
10,
6,
15,
41,
26,
-20,
-9,
0,
-20,
33,
-23,
-13,
-81,
14,
5,
17,
31,
27,
10,
-43,
-45,
-48,
-59,
32,
26,
23,
1,
1,
-24,
-47,
-2,
-3,
11,
30,
3,
52,
-32,
34,
-5,
-1,
-27,
4,
-24,
13,
6,
-75,
2,
-53,
-14,
50,
1,
5,
29,
-24,
-7,
-51,
11,
11,
25,
5,
42,
-12,
-18,
-30,
-25,
-2,
8,
10,
-71,
22,
63,
34
] |
JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Florian Córtese, M.D., appeals the September 9,2013 order of the Second Judicial District Court, Silver Bow County, denying Cortese’s motion to dismiss plaintiffDonna Pickett’s complaint for lack of subject matter jurisdiction, denying Cortese’s motion to preclude Pickett from presenting impleaded claims at trial, and denying Cortese’s motion for summary judgment.
¶2 We address the following issues on appeal:
¶3 1. Whether the District Court erred when it determined that it had jurisdiction to consider arguments that Pickett had not specifically presented to the Montana Medical Legal Panel.
¶4 2. Whether this Court should suspend the Rules of Appellate Procedure to consider the District Court’s decisions allowing Pickett to present unpleaded claims at trial and denying Cortese’s motion for summary judgment.
¶5 We affirm the District Court’s determination that it had jurisdiction to decide Pickett’s claims. We decline to suspend the Rules of Appellate Procedure to consider the other issues raised by Córtese.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 On January 18,2007, Córtese performed an endoscopic retrograde cholangiopancreatography (ERCP) with sphincterotomy on Donna Pickett. During the course ofthe procedure, the first section of Pickett’s small intestine was perforated. As a result, Pickett developed pancreatitis, which became septic. Pickett underwent extensive medical care and incurred significant expense to address these complications.
¶7 On January 15, 2010, Pickett filed a claim for review with the Montana Medical Legal Panel (MMLP). She asserted claims of medical malpractice against Córtese stemming from the 2007 procedure. Pickett alleged that Córtese was negligent in three ways: (1) in negligently perforating her intestine; (2) in failing to timely diagnose the perforation; and (3) in failing to disclose all material facts and the nature of significant risks that may be encountered so that necessary consent to treatment could be based on an intelligent exercise of judgment.
¶8 Following the MMLP’s confidential decision, Pickett filed a complaint before the Second Judicial District Court. The complaint alleged that Córtese breached his duty of care in numerous ways, including “carelessly, unskillfully, and negligently perforating [Pickett’s] duodenum; failing to timely diagnose and treat [her] perforation; failing to disclose all material facts and the nature of significant risks that may be encountered so that necessary consent to treatment could be based on an intelligent exercise of judgment; failing to employ appropriate after-care or post-operative management; and failing to otherwise use that degree of care and skill required of physicians practicing in Dr. Cortese’s specialty....”
¶9 Córtese asked Pickett in written discovery to list and explain every distinct action or omission that constituted a departure from the standard of care. Pickett replied with the allegations from her complaint and stated that she would supplement her answer with her expert witness disclosures. On June 3,2013, Pickett served her expert disclosure identifying three experts who would offer standard of care opinions. Pickett’s experts opined that Córtese did not obtain all necessary data before recommending and performing the ERCP or sphincterotomy and that he should have managed her care with more conservative, alternative measures.
¶10 On July 25,2013, Córtese moved to dismiss Pickett’s claims that Córtese “performed an unnecessary procedure and failed to disclose that less-invasive alternatives were available.” Córtese argued that these claims were not presented to the MMLP, so the District Court lacked subject matter jurisdiction to consider them. After briefing and argument, the court denied Cortese’s motion to dismiss. It determined that “[p]art of the standard of care analysis concerns whether or not the procedure should have been performed at all,” and that Córtese “presented an expert’s report addressing this exact issue” to the MMLP. In the same order, the Court denied Cortese’s motions for summary judgment and to preclude unpleaded claims from being presented at trial.
STANDARD OF REVIEW
¶11 A district court’s decision to grant or deny a motion to dismiss for lack of subject matter jurisdiction is a question of law that we review for correctness. Ballas v. Missoula City Bd. of Adjustment, 2007 MT 299, ¶ 9, 340 Mont. 56, 172 P.3d 1232. “The inquiry is whether the complaint states facts that, if true, would grant the district court subject matter jurisdiction.” Balias, ¶ 9. Denial of a motion to dismiss for lack of subject matter jurisdiction is reviewable prior to final judgment. M. R. App. P. 6(3)(c). We are confined to whether the district court correctly decided the limited question of subject matter jurisdiction. Balias, ¶ 9.
DISCUSSION
¶12 1. Whether the District Court erred when it determined that it had jurisdiction to consider arguments that Pickett had not specifically presented to the Montana Medical Legal Panel.
¶13 Any person alleging malpractice against a health care provider must submit a claim to the MMLP before filing a complaint in district court. Section 27-6-301, MCA. With few exceptions, none applicable here, the panel is required to review all malpractice claims against health care providers. Section 27-6-105, MCA. The application to the MMLP must contain “a statement in reasonable detail of the elements of the health care provider’s conduct that are believed to constitute a malpractice claim, the dates on which the conduct occurred, and the names and addresses of all physicians... and hospitals having contact with the claimant and all witnesses.” Section 27-6-302(1), MCA.
¶14 In her MMLP filing, Pickett did not expressly allege that Córtese should have explored alternative treatment and that he unnecessarily performed the ERCP. Córtese contends that Pickett failed to meet the statutory requirement to bring this claim to the MMLP before filing it with the District Court. Pickett responds by arguing that this claim is included within two issues she presented to the MMLP — whether Córtese negligently operated on her and whether Córtese failed to obtain informed consent.
¶15 We have not previously addressed the specificity of pleading required before the MMLP. Córtese urges us to adopt the rule from two administrative law cases in which we held that an issue not squarely raised, argued or adjudicated in the administrative context is not ripe for consideration in a judicial review proceeding. Art v. Mont. Dept. of Labor & Indus. ex. rel. Mason, 2002 MT 327, ¶ 14, 313 Mont. 197, 60 P.3d 958; Marble v. Mont. Dept. of Health & Human Servs., 2000 MT 240, ¶ 28, 301 Mont. 373, 9 P.3d 617. Pickett distinguishes these cases because the standard of review that the trial court utilizes in an administrative law action differs from a medical malpractice claim. Trial courts review administrative decisions to determine whether the agency “exceeded its authority, abused its discretion, made clearly erroneous findings of fact, or interpreted the law incorrectly.” Marble, ¶ 15. In contrast, filing a claim with the MMLP is simply a condition precedent to filing a medical malpractice action in district court.
¶16 We agree with Pickett that Art and Marble have no application here because both involve judicial review of an agency decision under the Montana Administrative Procedure Act. A proceeding before the MMLP, however, results in no record and no agency decision presented to the court for review. “The panel’s decision is without administrative or judicial authority and is not binding upon any party.” Section 27-6-606(1), MCA. The decision and reasoning of the panel are confidential and cannot be used as evidence in an action filed in court. Sections 27-6-703, -704, MCA. A district court presented with a medical malpractice claim analyzes that claim anew rather than relying on any finding made by the MMLP.
¶17 Nevertheless, there must be some relationship between a claim filed with the MMLP and a complaint filed in district court. Submitting a claim for evaluation by the MMLP is a condition precedent to commencing a medical malpractice action. Linder v. Smith, 193 Mont. 20, 629 P.2d 1187 (1981). A “claim” must include “reasonable detail of the elements of the health care provider’s conduct that are believed to constitute a malpractice claim.” Section 27-6-301, MCA. The essence of Pickett’s claim against Córtese is that he failed to meet the standard of care in performing the January 18, 2007 ERCP. This claim was submitted to the MMLP before Pickett commenced her district court action. The District Court’s subject matter jurisdiction is based on its “fundamental authority to hear and adjudicate cases” of medical malpractice. BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 15, 359 Mont. 20, 247 P.3d 706. The issue is whether the elements of Pickett’s malpractice complaint were sufficiently presented before the panel in order to satisfy the condition precedent to filing in court.
¶18 Although the scope of a claim before the MMLP was not at issue, our decision in Griffin v. Moseley, 2010 MT 132, 356 Mont. 393, 234 P.3d 869, is therefore instructive. Griffin’s complaint alleged that her doctor was negligent and that his actions fell below the standard of care. Griffin, ¶ 37. The complaint contained only two claims against Moseley: “(1) negligence during the performance of the surgery; and (2) failure to obtain informed consent prior to surgery.” Griffin, ¶ 16. We determined that the District Court construed those claims too narrowly when it did not allow Griffin to argue that the doctor failed to attempt alternative pre-surgical treatment. Griffin, ¶ 39. In light of the allegations of the complaint and the deposition testimony of Griffin’s experts, we held that the doctor was on notice that the plaintiff claimed he was negligent “in both his surgical treatment of [Griffin], as well as in his pre-surgical treatment of her.” Griffin, ¶ 39.
¶19 Griffin is useful here for its discussion regarding what a general claim for negligence encompasses. A claimant before the MMLP is required to provide only “reasonable detail” of the elements of her claim. Section 27-6-301, MCA. The requirement that a claimant first file a claim with the MMLP exists to avoid litigation where possible. Section 27-6-102, MCA. Filing with the MMLP is just the first step in a medical malpractice case, occurring well before the conduct of any discovery, the substantial involvement of experts or the full development of legal theories. As such, “reasonable detail” of a party’s claim cannot be expected to include each and every theory that may come to fruition after discovery occurs. For these reasons, we decline to impose Cortese’s suggested heightened pleading standard for “reasonable detail.” The notice requirement we utilized in Griffin applies a standard that is equally workable in the analysis of a claim before the MMLP.
¶20 In her filing with the MMLP, Pickett alleged that Córtese negligently performed the ERCP and failed to provide her with sufficient information to enable her informed consent. Pickett’s expert disclosure alleged that Córtese failed to obtain all relevant data, failed to explore alternative solutions and performed the ERCP unnecessarily. Both allegations arise out of the same procedure and are premised on Cortese’s alleged failure to meet the standard of care in performing that procedure. Like Griffin, Pickett’s claim that Córtese failed to consider alternative treatment before performing the ERCP properly may be subsumed into her claims that Córtese negligently performed the ERCP and failed to get informed consent. Further, as the District Court noted, Córtese presented an expert’s report to the MMLP that spoke to the necessity of the procedure. Córtese reasonably was on notice of Pickett’s claims and had the opportunity to conduct additional discovery once Pickett’s expert disclosure was served. Under these facts, the District Court correctly determined that Pickett’s claim to the MMLP was sufficient to encompass her claims before the court. Accordingly, we affirm its decision denying Cortese’s motion to dismiss for lack of subject matter jurisdiction.
¶21 2. Whether this Court should suspend the Rules of Appellate Procedure to consider the District Court’s decisions allowing Pickett to present unpleaded claims at trial and denying Cortese’s motion for summary judgment.
¶22 Córtese requests that we consider ruling on two further interlocutory orders — the District Court’s denied of his motion for summeuy judgment and its denied of his motion to exclude impleaded cleiims at trial. Unlike a court’s decision on a motion to dismiss for lack of subject matter jurisdiction, these orders are not appealable until after final judgment. M. R. App. P. 6(5).
¶23 Nevertheless, Córtese asks us to exercise our authority under M. R. App. P. 29 to suspend the requirements of these rules “[i]n the interest of expediting decision ... or for other good cause shown.” Córtese points out that we have suspended the Rules in the interest of judicial economy. See Durden v. Hydro Flame Corp., 1998 MT 47, ¶¶ 17-19, 288 Mont. 1, 955 P.2d 160. In Durden, we faced one of a “limited class of cases” where a party appeals an order granting a motion for judgment as a matter of law and an order granting a new trial on damages. Durden, ¶ 19. Because the order granting a new trial was appealable, we chose to also consider the order granting judgment as a matter of law to “save the necessity either for a second appeal or a second trial,” an outcome we characterized as a “near certainty.” Durden, ¶ 19. Here, there has been no trial, and there is no “near certainty” of a second appeal. “In the absence of extraordinary and compelling circumstances beyond simply requiring a party to proceed to trial,” we have declined to review orders denying summary judgment before the entry of final judgment. State ex rel. Kosena v. Dist. Ct., 172 Mont. 21, 22, 560 P.2d 522, 523 (1977). Córtese has not presented any compelling reason necessitating review of these pretrial rulings, and, consistent with our Rules of Appellate Procedure, we decline to address them.
CONCLUSION
¶24 The District Court’s order denying Cortese’s motion to dismiss for lack of subject matter jurisdiction is affirmed. The case is remanded to the District Court for further proceedings.
CHIEF JUSTICE McGRATH, JUSTICES McKINNON, WHEAT and RICE concur.
|
[
10,
-38,
-12,
1,
0,
-14,
-13,
14,
-7,
38,
-1,
-13,
53,
-12,
-1,
21,
-28,
-68,
2,
16,
-4,
-19,
-6,
54,
-22,
-47,
-19,
-5,
2,
-21,
49,
35,
35,
27,
26,
34,
83,
29,
24,
29,
37,
6,
-73,
-38,
-2,
53,
29,
0,
9,
5,
28,
1,
-44,
-14,
29,
45,
49,
-15,
-40,
4,
-67,
-1,
18,
-7,
38,
4,
18,
-12,
6,
-25,
-38,
-10,
-16,
-15,
-4,
-44,
16,
-7,
-18,
30,
-10,
-16,
-47,
-48,
19,
3,
-12,
21,
14,
34,
26,
-66,
5,
-24,
-7,
61,
-28,
-38,
46,
-3,
-25,
31,
-45,
10,
-12,
0,
14,
3,
9,
7,
-47,
33,
-65,
-59,
6,
23,
29,
32,
-6,
15,
-39,
-15,
-23,
-23,
45,
60,
20,
14,
7,
-8,
-28,
-20,
24,
-17,
7,
48,
-56,
-45,
42,
61,
0,
28,
-20,
-31,
41,
-41,
-25,
-24,
-15,
-18,
77,
13,
-14,
-14,
31,
18,
9,
-48,
8,
34,
27,
-24,
-10,
48,
5,
45,
19,
16,
-4,
34,
13,
-15,
0,
-4,
23,
2,
-9,
-43,
-60,
-5,
-28,
15,
-29,
2,
-2,
48,
33,
9,
51,
-31,
-59,
-1,
-27,
-44,
28,
-2,
25,
15,
10,
5,
-4,
68,
32,
5,
52,
42,
-33,
-39,
-2,
8,
-24,
-3,
-31,
14,
-7,
-32,
44,
-48,
-22,
48,
-17,
23,
31,
-61,
-64,
14,
-29,
70,
24,
-42,
-18,
26,
-29,
46,
51,
14,
36,
-25,
1,
0,
-8,
-6,
14,
2,
-12,
64,
-26,
0,
-30,
-35,
18,
35,
5,
-2,
11,
-29,
-2,
17,
-77,
-44,
44,
-4,
-20,
42,
5,
23,
47,
-22,
36,
6,
-47,
31,
49,
-21,
-28,
-10,
-16,
15,
12,
43,
40,
-19,
-20,
-24,
-44,
23,
28,
46,
16,
12,
-38,
-64,
-73,
-23,
21,
-51,
-15,
-26,
3,
10,
57,
-24,
93,
39,
24,
-18,
-19,
26,
13,
-1,
34,
26,
-44,
-12,
11,
-14,
-41,
-23,
34,
-15,
-17,
45,
-4,
-41,
-16,
-31,
-9,
-47,
-30,
-5,
1,
62,
14,
32,
24,
-14,
0,
44,
-10,
-42,
-30,
-29,
-24,
-7,
-39,
30,
17,
5,
-5,
-51,
22,
27,
70,
-29,
-40,
-7,
2,
0,
10,
0,
-1,
-26,
-8,
-14,
-56,
2,
29,
8,
-23,
20,
-38,
-22,
57,
-57,
-29,
-25,
5,
-1,
31,
55,
25,
4,
23,
-30,
-19,
7,
9,
33,
0,
-15,
24,
-49,
55,
69,
-33,
22,
-59,
3,
-15,
-18,
4,
9,
22,
16,
26,
-4,
19,
-22,
1,
2,
44,
-9,
21,
9,
40,
22,
-17,
29,
-45,
-39,
16,
-50,
24,
-8,
7,
-23,
-14,
8,
-6,
33,
-33,
-4,
-9,
1,
1,
11,
1,
-24,
61,
38,
-36,
27,
-45,
-48,
-10,
-1,
48,
44,
5,
15,
18,
-25,
49,
47,
-58,
19,
-31,
-13,
14,
-42,
-72,
-28,
10,
-6,
-17,
23,
-46,
7,
30,
-19,
-11,
13,
22,
-60,
37,
39,
-65,
46,
-13,
-14,
10,
-37,
3,
46,
3,
51,
-39,
-11,
-2,
-32,
-7,
19,
-11,
-46,
-9,
-4,
30,
-26,
25,
-13,
-14,
4,
-12,
-24,
-2,
-79,
50,
-57,
38,
0,
-34,
15,
59,
-15,
-63,
33,
10,
-14,
18,
28,
-10,
0,
-18,
-13,
2,
-68,
-63,
-42,
52,
-48,
0,
8,
5,
-18,
-20,
-23,
-7,
-31,
39,
-44,
-49,
8,
28,
-4,
-22,
-13,
-2,
6,
52,
58,
23,
-19,
40,
-16,
21,
-5,
-5,
30,
51,
-34,
-3,
48,
-4,
25,
-19,
39,
-15,
-70,
24,
-29,
10,
41,
-60,
-17,
-28,
-53,
-2,
-11,
-21,
11,
-37,
13,
3,
-54,
-22,
-5,
48,
-53,
8,
-38,
-78,
-57,
5,
13,
-19,
11,
-14,
-4,
-22,
28,
1,
24,
0,
11,
-18,
-7,
44,
-26,
44,
-30,
-4,
-1,
-31,
-16,
-25,
-19,
-6,
5,
-10,
-31,
-71,
25,
5,
2,
-3,
-3,
-50,
-41,
6,
-115,
53,
13,
19,
-15,
-25,
-33,
9,
68,
-11,
-14,
31,
45,
4,
-4,
-7,
-21,
91,
-60,
-19,
-41,
33,
37,
-10,
-16,
-14,
45,
-10,
-4,
5,
-7,
2,
14,
14,
-26,
13,
15,
-3,
4,
-68,
26,
38,
-20,
12,
7,
15,
-9,
6,
19,
44,
-11,
-31,
-31,
29,
-6,
-48,
-10,
-47,
16,
30,
-13,
-21,
22,
34,
-19,
25,
-38,
3,
7,
-2,
6,
-20,
13,
-54,
62,
55,
-2,
-3,
-26,
-13,
-32,
2,
41,
-35,
42,
13,
-34,
15,
-8,
-7,
-14,
9,
-31,
9,
41,
15,
-35,
-1,
14,
-4,
35,
19,
4,
38,
56,
-12,
33,
46,
-10,
7,
9,
-40,
38,
39,
30,
-23,
20,
13,
8,
-1,
-23,
11,
46,
-39,
-39,
-31,
-34,
57,
-11,
31,
56,
20,
10,
18,
7,
-38,
-14,
26,
5,
10,
0,
-2,
17,
5,
13,
-19,
39,
-69,
-13,
-23,
-66,
19,
-17,
-22,
-48,
-58,
-41,
-4,
37,
-20,
28,
-1,
2,
-29,
-8,
31,
-70,
8,
-9,
-20,
23,
29,
-15,
45,
31,
-16,
43,
11,
-26,
22,
29,
26,
-49,
40,
20,
51,
-52,
-75,
-47,
-11,
-33,
17,
-33,
-4,
-9,
18,
-21,
-43,
24,
34,
8,
-13,
1,
-22,
-12,
-26,
-44,
8,
14,
-51,
30,
20,
24,
-16,
-9,
10,
-65,
4,
81,
59,
24,
-39,
6,
31,
46,
32,
-56,
-24,
-8,
-21,
38,
41,
102,
-57,
31,
-13,
47,
24,
8,
20,
27,
-4,
4,
45,
4,
-13,
11,
10,
-22,
23,
-55,
-3,
-13,
-35,
-17,
4,
-13,
-54,
26,
-31,
-52,
2,
0,
-3,
14,
22,
50,
-35,
-25,
-19,
0,
-25,
-24,
35,
-32,
46,
-9,
1,
-3,
-45,
52,
-49,
19,
5,
-6,
25,
-23,
-25,
34,
-25,
-43,
-2,
60,
54,
17,
-14,
19,
-6,
-51,
-15,
56,
30,
35,
-48,
-21,
-30,
-20,
13,
34,
-34,
38,
32,
-8,
40,
12,
13,
1,
-40,
-33,
11,
21,
3,
23,
-1,
9,
16,
63,
18,
18,
-17,
-10,
-48,
21,
-51,
16,
-35,
17,
7,
-2,
49,
4,
40,
38,
18,
-18,
-4,
7,
0,
15,
12,
7,
-20,
1,
-24,
12,
-77,
6,
-34,
-32,
-29,
-17,
-22,
2,
-68,
-18,
7,
52,
20,
-60,
6,
-25,
7,
44,
4,
24,
29,
25,
-37,
-66,
36,
16,
54,
51,
31,
-45,
16,
-23,
-50,
-32,
27,
-15,
-43,
15,
39,
-60
] |
JUSTICE McKINNON
delivered the Opinion of the Court.
¶1 Aimee Catherine Schmidt appeals from the decree dissolving her marriage to Todd Delroy Schmidt. We remand for the entry of a corrected judgment as discussed under Issue 2 and a corrected retirement benefits order for Aimee’s Thrift Savings Plan retirement account. In all other respects, we affirm the findings, conclusions, and decree entered by the Eleventh Judicial District Court, Flathead County.
¶2 The issues on appeal are:
1. Did the District Court err in determining the parenting schedule?
2. Did the court err by including Aimee’s Russell Country Federal Credit Union account twice in its calculation of the marital estate?
3. Did the court err in determining the value of the Three Rivers bank account?
4. Did the court err by including the value of a post-separation account held under the name of Jeffrey S. Lamoreaux in its distribution of the marital estate ?
5. Did the court err by issuing a retirement benefits order that was inconsistent with the decree of dissolution?
Todd Schmidt asks to be awarded his fees and costs on appeal.
BACKGROUND
¶3 Todd Schmidt and Aimee Schmidt were married in 2002, and one son, C.R., was bom to them. In 2010, Todd petitioned to dissolve the marriage. On motion of the parties, the District Court appointed a guardian ad litem (GAL) to investigate the best interests of 8-year-old C.R. with respect to parenting.
¶4 In June of 2012, the District Court held a hearing on the disputed issues of parenting, child support, and distribution of marital property. The court heard testimony from the GAL, the company commander and human resources officer for Aimee’s National Guard unit, Todd, and Aimee. The parties introduced into evidence numerous exhibits regarding parenting, their bank accounts, and other financial matters.
¶5 In October 2012, the District Court entered its findings, conclusions, and a decree of dissolution. The court found that both Todd and Aimee were employed and in good health and that Aimee was scheduled to be deployed with the National Guard in November of 2012 for one year. The court ordered that, when Aimee is unable to care for C.R. due to her military commitment, C.R. will live with Todd. The court adopted a parenting plan under which C.R., who had been spending alternating weeks with each parent, will primarily live with Todd and “Aimee will have parenting time with him at any and all reasonable times,” presumptively including every other weekend, one weekday evening each week, alternating holidays, and extended summer visits. The court ordered Aimee to pay Todd $557 per month for child support, as calculated under the Montana Child Support Guidelines.
¶6 In its findings and conclusions, the District Court also resolved differences between the parties on valuation of the marital home and whether, and in what amounts, various other assets and debts should be included in the marital property. The court divided the marital property 50/50. To equalize the division of property, the court ordered Aimee to pay Todd $29,612.
¶7 Aimee appeals.
STANDARDS OF REVIEW
¶8 We review a parenting determination to decide whether the district court’s findings of fact are clearly erroneous. Because the district court is in a superior position to weigh the evidence, we will not overturn a parenting determination unless the district court has clearly abused its discretion. In re Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211.
¶9 We will not set aside a district court’s findings of fact regarding the division of marital property unless those findings are clearly erroneous, giving due regard to the opportunity of the district court to judge the credibility of witnesses. We review a district court’s conclusions of law for correctness. In re Marriage of Kessler, 2011 MT 54, ¶ 15, 359 Mont. 419, 251 P.3d 147.
DISCUSSION
¶10 Issue One: Did the District Court err in determining the parenting schedule?
¶11 Aimee claims the District Court’s decision on the matter of C.R.’s parenting was an abuse of discretion. She specifically challenges the District Court’s finding that the GAL “testified that Todd should be the child’s primary caretaker.” Aimee’s position is that she should have equal parenting time with C.R. after she returns from her year-long deployment. She maintains the GAL’s trial testimony fully supports this.
¶12 We first address the challenged finding of fact, which is finding number 13. In that finding, the court described Aimee’s failure to disclose her impending National Guard deployment to the GAL, and the GAL’s opinion that Aimee should have brought that information to her attention. The finding then states the GAL “testified that Todd should be the child’s primary caretaker.”
¶13 In questioning the GAL at the hearing, Todd’s counsel went through 9 provisions he had proposed in writing for the parenting plan, and asked the GAL for her comments on each one. Todd’s proposed parenting provision number 9 stated:
Upon Aimee’s return from deployment, anticipated in November, 2013, the child will have lived solely with Todd for a year and the child will need consistence in his schedule. Thus, the child will continue to reside primarily with Todd and the parties will either agree on a schedule for parenting time, attend mediation, or seek the appointment of a GAL to offer recommendations regarding the child’s best interest at that point.
Todd’s counsel asked the GAL whether she agreed provision number 9 was in C.R.’s best interest and the GAL replied, “Absolutely.”
¶14 Other testimony by the GAL was equivocal as to a parenting recommendation following Aimee’s return from deployment. As noted above, the GAL learned of Aimee’s impending deployment only just before the hearing. In her written report to the court, which she had prepared before Aimee informed her of the upcoming deployment, the GAL recommended that a joint shared parenting plan be developed under which Todd would be designated as the residential parent for purposes of jurisdiction, school enrollment, and similar matters, and Todd and Aimee would exercise their parental time on the alternate-week basis they had established. At the hearing, the GAL expanded upon this by testifying that Todd “was definitely there more often” and that Aimee’s job required her to travel. The GAL further testified that she felt Aimee should have brought her impending deployment to the GAL’s attention.
¶15 Where trial evidence is inconsistent, it is the prerogative of the trial court to resolve those inconsistencies. Interstate Prod. Credit v. DeSaye, 250 Mont. 320, 324, 820 P.2d 1285, 1287-88 (1991). There are inconsistencies in the GAL’s testimony regarding her recommendation for C.R.’s future living arrangements. However, finding number 13 is not clearly erroneous in light of the GAL’s testimony that it would “absolutely” be in C.R.’s best interests to reside with Todd.
¶16 We now turn to the question of whether the District Court’s parenting plan represents an abuse of discretion. As Aimee points out, in Puccinelli v. Puccinelli, 2012 MT 46, 364 Mont. 235, 272 P.3d 117, we reversed a parenting plan on grounds that it was not supported by evidence at trial but only by post-trial GAL recommendations not subject to cross-examination.
¶17 In contrast to the situation in Puccinelli, the District Court’s parenting plan in the present case was supported by evidence at trial. The court had heard the GAL’s testimony that residing with Todd would be in C.R.’s best interests. Among other unchallenged findings, the court also found:
Although there is not sufficient evidence to conclude that [C.R.] is currently harmed by the alternating week schedule, Aimee’s parenting style with her daughters and [C.R.] establishes that she is unable or unwilling to co-parent, and such skills will become more important as [C.R.] gets older. Todd’s home and parenting style offers greater stability and continuity of care for [C.R.]. The child should be placed in Todd’s primary care and the Final Parenting Order issued contemporaneously herewith is in the child’s best interest.
We conclude Pucinnelli is not on point.
¶18 In addition, after having learned of Aimee’s impending deployment just before the hearing, the GAL prepared and filed with the court a second, “interim” report. In that report, the GAL recommended that C.R. live with Todd during the deployment. The GAL recommended that, after Aimee’s deployment, C.R. should continue to reside primarily with Todd, and the parties should either agree on a schedule for parenting time, attend mediation, or seek the appointment of a GAL to offer recommendations regarding his best interests at that point in time. Aimee never asked for a hearing or asserted any right to examine the GAL about her “interim” report.
¶19 Aimee also relies on § 40-4-219(10)(a), MCA, which provides:
Except as provided in subsection (10)(b), a court-ordered or de facto modification of a parenting plan based in whole or in part on military service orders of a parent is temporary and reverts to the previous parenting plan at the end of the military service. If a motion for an amendment of a parenting plan is filed after a parent returns from military service, the court may not consider a parent’s absence due to that military service in its determination of the best interest of the child.
This statute does not apply here because the parenting plan adopted by the District Court was the original court-ordered parenting plan, not a modification of a parenting plan based on Aimee’s service in the military. We observe that Aimee retains the right under § 40-4-219, MCA, to move for an amendment of the parenting plan based on changed circumstances that may occur in the future.
¶20 We hold that Aimee has failed to establish that the District Court’s finding of fact number 13 was clearly erroneous or that the court clearly abused its discretion in the parenting plan it adopted.
¶21 Issue Two: Did the court err by including Aimee’s Russell Country Federal Credit Union account twice in its calculation of the marital estate?
¶22 The District Court set forth its valuation of the various components of the marital estate in a spreadsheet format. Aimee argues that the court erred by including her Russell Country Federal Credit Union checking account twice on the spreadsheet; once with an approximate value of $2,947 and then again with an approximate value of $1,625. The court allocated both amounts to Aimee. This was clear error, claims Aimee.
¶23 The record confirms Aimee’s argument. The District Court’s spreadsheet shows the same account number for both of the Russell Country accounts it lists. Hearing Exhibit 17 — the only bank statement in the record concerning the Russell Country accounts — shows that Aimee held two Russell Country accounts as of May 31, 2010. She held a “primary shares” balance of $289.30 and a “free checking draft” balance of $1,624.82. We observe that the “free checking draft” account approximates the $1,625 amount allocated to Aimee by the District Court in its second allocation of the Russell Country account to her.
¶24 Todd relies on the District Court’s finding that “Aimee’s history of transferring funds to and from numerous accounts, over 13 separate accounts, and her refusal to answer Todd’s questions regarding marital funds made it inequitable to divide all of the assets on one particular date.” Although this statement by the District Court provides a rationale for using various dates for valuing assets, it does not provide a rationale for including the Russell County account balance in the marital estate twice. The total amount the District Court has credited to Aimee, $4,572, exceeds by a considerable amount the $ 1,914.12 total value of the two accounts shown on the Russell Country May 2010 bank statement.
¶25 We hold that the District Court erred in including Aimee’s Russell Country checking account in the marital estate twice. This case is remanded to allow the District Court to correct that error and to adjust the total marital estate value and equalization payment from Aimee to Todd accordingly.
¶26 Issue Three: Did the court err in determining the value of the Three Rivers bank account?
¶27 Aimee points out that the bank statements from Three Rivers Bank that were introduced into evidence showed that the balance in the parties’ account at that bank fluctuated significantly over time. She argues the District Court abused its discretion when it valued that account at $34,840 as of May of2009 instead of at $2,297.98 as of May of 2010 — the date as of which the court valued most other property in the marital estate.
¶28 We have stated that a district court may use different dates for valuing the assets of the parties if appropriate under the circumstances. An equitable apportionment of marital property is more important than “designating the moment” at which the court should value marital property. Schwartz v. Harris, 2013 MT 145, ¶ 18, 370 Mont. 294, 308 P.3d 949.
¶29 Aimee contends, incorrectly, that the District Court did not articulate its reasons for determining the dates for valuing the respective bank accounts and, specifically, the Three Rivers bank account. To the contrary, the court found that “Aimee’s history of transferring funds to and from numerous accounts, over 13 separate accounts, and her refusal to answer Todd’s questions regarding marital funds made it inequitable to divide all of the assets on one particular date.” The court further found that
Todd established that before the divorce was filed, the parties had at least $34,840 in joint savings to which both parties had contributed. Aimee seized sole control over these funds without Todd’s knowledge or consent, and transferred funds to numerous accounts to which Todd did not have access. It is fair and equitable to include in the marital estate the sum of $34,840 and allow Aimee to keep all of the bank accounts to which she appeared to have transferred such funds.
The District Court thereby described the circumstances justifying the use of different dates for valuing the assets of the parties.
¶30 We hold Aimee has not established that the District Court erred in determining the value of the Three Rivers bank account.
¶31 Issue Four: Did the court err by including the value of a post-separation account held under the name of Jeffrey S. Lamoreaux in its distribution of the marital estate?
¶32 In response to discovery requests concerning all bank accounts in which she had an interest, Aimee had provided a February 29, 2012 bank statement for a Rocky Mountain Bank account held under the name of Jeffrey S. Lamoreaux. Lamoreaux was living with Aimee at the time of the hearing. The court included approximately one-half of the valué of the account — $5,000—as an asset allocated to Aimee in the distribution of the marital estate.
¶33 On appeal, Aimee asserts that the District Court abused its discretion when it included the Rocky Mountain account in its valuation and distribution of the marital estate. She argues that the account did not exist during the parties’ marriage and was held solely in the name of a third party.
¶34 In addition to the finding mentioned above about Aimee’s history of transferring funds to and from numerous accounts without Todd’s knowledge or consent, the court found “Aimee admitted at trial that she had failed to include on her disclosure [of assets] an account held in her boyfriend’s name that also contained funds contributed by her. Thus, it is equitable to include in the marital estate the Rocky Mountain Bank account[.]” Under cross-examination by Todd’s attorney, Aimee testified the money in the Rocky Mountain Bank account “is not all his, it’s not all mine,” without specifying the amount of money she had in that account.
¶35 Under these circumstance, we hold that the District Court did not err in including half of the value of the Lamoreaux Rocky Mountain Bank account in the marital estate.
¶36 Issue Five: Did the court err by issuing a retirement benefits order that was inconsistent with the decree of dissolution?
¶37 The District Court’s decree of dissolution provides that “[t]he amounts accrued in Aimee’s retirement accounts during the marriage should be divided equally between the parties ... and Aimee shall prepare the ... necessary documents to effectuate this division within 30 days after the date this Decree is entered.” As Aimee points out, the court’s January 15, 2014 Retirement Benefits Order awarded Todd 50% of her Thrift Savings Plan retirement account, regardless of when it was accrued. Aimee characterizes this as a clerical error that must be corrected.
¶38 Todd maintains Aimee waived her right to appeal this question because she refused to participate in the process of preparing the orders to divide her retirement accounts. He also points out that the notice of appeal was filed before the retirement benefits order was entered.
¶39 It is plain from the record that the retirement benefit order is inconsistent with the decree on which it is based. Aimee is correct that this represents a clerical error that must be corrected. For purposes of judicial expediency, we order the District Court to enter a corrected retirement benefit order as to Aimee’s Thrift Savings Plan retirement account.
Fees and costs.
¶40 Todd asks this Court to order Aimee to pay his costs on appeal. Additionally, he requests sanctions, in the form of his attorney fees, against Aimee under M. R. App. P. 19(5), on grounds that she took this appeal without sufficient and reasonable grounds, causing further delay and harassment, and based on mischaracterization of the factual record.
¶41 M. R. App. P. 19(3)(a) provides that “[c]osts on appeal will be awarded to the prevailing party unless otherwise specifically provided by the supreme court in its decision.” Inasmuch as Aimee has prevailed on Issues 2 and 5, we conclude Todd is not entitled to costs as a prevailing party, and that sanctions are not justified.
CONCLUSION
¶42 This case is remanded to the District Court for entry of a corrected judgment as discussed under Issue 2 and a corrected retirement benefits order regarding Aimee’s Thrift Savings Plan retirement account. In all other respects, we affirm the judgment entered by the District Court.
JUSTICES WHEAT, COTTER, BAKER and RICE concur.
|
[
-30,
-7,
-37,
-15,
-33,
-50,
-30,
-34,
6,
-11,
-50,
34,
18,
36,
-40,
-10,
-38,
-16,
21,
-22,
2,
16,
-4,
67,
-22,
22,
-8,
-32,
-6,
-36,
6,
-25,
15,
-18,
78,
-2,
9,
8,
-16,
-60,
-35,
42,
-15,
-8,
-24,
60,
14,
-10,
-27,
1,
55,
-56,
-30,
23,
39,
44,
-19,
52,
-13,
-30,
-26,
4,
4,
-1,
60,
4,
72,
21,
-17,
20,
-6,
-70,
-4,
-55,
-61,
4,
-42,
59,
-41,
-10,
-12,
-17,
-59,
-41,
20,
-26,
-16,
57,
-35,
58,
-24,
38,
21,
21,
30,
24,
25,
-37,
13,
23,
10,
-46,
8,
53,
-7,
17,
-11,
17,
54,
-4,
41,
-24,
21,
28,
-12,
32,
0,
6,
31,
-26,
34,
106,
-8,
-16,
84,
-26,
17,
38,
36,
21,
-19,
4,
-12,
-30,
-44,
-72,
-17,
-30,
-45,
8,
27,
-46,
42,
-34,
35,
35,
-23,
-62,
59,
-49,
21,
-19,
11,
78,
45,
-72,
1,
-1,
-10,
-43,
58,
23,
8,
21,
-18,
-13,
41,
3,
-5,
-22,
85,
2,
-61,
2,
4,
-12,
-1,
-63,
-24,
-33,
38,
34,
20,
-48,
-47,
19,
14,
-14,
-66,
-38,
-59,
-53,
36,
36,
19,
-29,
45,
37,
59,
-1,
5,
-37,
76,
44,
28,
-24,
32,
-9,
19,
-11,
3,
7,
27,
0,
-34,
-37,
2,
-69,
-49,
-15,
49,
-55,
35,
-66,
-70,
-4,
-14,
4,
-19,
-31,
-19,
3,
23,
17,
-32,
-5,
-6,
-51,
-35,
-22,
-49,
-40,
-4,
-1,
-6,
-4,
-27,
0,
4,
9,
-44,
-4,
-11,
4,
21,
-2,
-18,
17,
39,
24,
37,
-21,
-3,
4,
-11,
8,
-5,
-8,
4,
10,
38,
5,
41,
-28,
21,
-26,
-19,
-3,
-30,
13,
21,
20,
-2,
12,
6,
43,
26,
9,
83,
17,
-12,
-39,
17,
4,
29,
-64,
-64,
-52,
-57,
-47,
-21,
12,
21,
81,
53,
-14,
-21,
-2,
-4,
-22,
70,
18,
15,
-27,
26,
3,
-29,
5,
-11,
37,
-1,
-27,
-60,
-25,
-42,
2,
-58,
-40,
-48,
0,
-13,
44,
-4,
3,
59,
-28,
1,
0,
4,
-14,
-5,
-47,
-19,
-17,
20,
-36,
2,
6,
-3,
2,
-11,
79,
0,
0,
-17,
6,
50,
-43,
-31,
-78,
-24,
-19,
-26,
-69,
0,
89,
41,
-16,
0,
6,
-41,
29,
11,
81,
63,
-29,
0,
49,
-14,
9,
-72,
-17,
7,
57,
31,
-31,
0,
-10,
-11,
-17,
-1,
-38,
-11,
23,
-20,
29,
5,
-23,
-20,
-29,
15,
21,
56,
-34,
-11,
-15,
-26,
-39,
-29,
-11,
13,
0,
-2,
5,
25,
-12,
-32,
-13,
3,
59,
-10,
-6,
-35,
-63,
14,
1,
-34,
9,
-1,
-22,
-23,
51,
-44,
-8,
35,
-2,
46,
40,
-5,
46,
-39,
51,
33,
-3,
-50,
-28,
3,
-62,
65,
15,
-31,
14,
23,
20,
19,
-61,
17,
-39,
7,
0,
44,
-12,
34,
18,
25,
15,
-38,
11,
15,
38,
-1,
70,
2,
78,
57,
49,
-7,
25,
25,
-25,
-7,
-44,
-71,
35,
-61,
39,
-33,
-3,
13,
15,
14,
21,
-13,
-40,
-26,
-43,
2,
12,
25,
-61,
-4,
-18,
5,
44,
43,
-23,
-36,
-27,
61,
-35,
0,
-17,
41,
-5,
-25,
-11,
21,
16,
73,
36,
41,
0,
1,
-63,
0,
24,
16,
22,
7,
2,
-17,
47,
-16,
-21,
-18,
22,
26,
-37,
16,
-32,
39,
14,
20,
0,
-28,
27,
24,
-63,
5,
22,
14,
17,
-12,
42,
68,
-24,
-14,
-8,
29,
-45,
19,
15,
-76,
-12,
-33,
-55,
-24,
-47,
-43,
-65,
-10,
-40,
-25,
-16,
34,
-14,
11,
-39,
-34,
-6,
-5,
12,
-39,
-26,
-65,
-16,
44,
33,
71,
-8,
-9,
-6,
-38,
66,
-4,
7,
-1,
-15,
-2,
-3,
0,
12,
-34,
-15,
-2,
-34,
0,
28,
-20,
6,
2,
28,
5,
-36,
19,
-23,
23,
-53,
-6,
-14,
0,
31,
0,
-23,
-5,
-27,
-36,
40,
-8,
-7,
54,
-57,
28,
-11,
14,
-31,
-7,
13,
20,
-38,
53,
47,
-11,
15,
25,
-49,
35,
25,
-34,
-37,
21,
47,
-1,
0,
-2,
21,
-3,
-11,
13,
0,
-38,
-16,
24,
50,
12,
-1,
-1,
28,
5,
28,
-56,
50,
-26,
65,
-2,
7,
-32,
2,
23,
-27,
15,
-63,
-23,
12,
-14,
-61,
17,
-11,
14,
-16,
4,
5,
5,
-1,
-37,
-15,
-33,
100,
-18,
-21,
11,
33,
-43,
-37,
27,
51,
-33,
31,
-8,
21,
-16,
42,
-2,
-24,
-49,
-9,
16,
-46,
-33,
-18,
-57,
48,
2,
-26,
-8,
-34,
-17,
-17,
28,
2,
14,
47,
0,
38,
-3,
45,
-12,
-18,
7,
46,
7,
42,
0,
17,
17,
69,
-17,
4,
-24,
-29,
-23,
13,
17,
-36,
-38,
10,
38,
-32,
-3,
-1,
0,
38,
-9,
-3,
0,
-40,
-1,
-22,
15,
-22,
30,
-35,
17,
54,
-40,
37,
36,
0,
-6,
-42,
-8,
48,
0,
-27,
17,
-28,
22,
8,
24,
40,
-34,
-13,
24,
-38,
4,
43,
8,
4,
-47,
-21,
-13,
60,
8,
-30,
-13,
42,
-35,
21,
2,
35,
-28,
-7,
29,
38,
36,
11,
-8,
17,
-3,
-62,
46,
-44,
3,
-1,
17,
12,
-6,
54,
-5,
-4,
4,
-42,
10,
8,
12,
-8,
18,
39,
-3,
2,
14,
6,
-20,
-41,
59,
57,
56,
10,
54,
-27,
32,
-47,
38,
18,
32,
-49,
-87,
81,
-14,
-16,
-15,
34,
4,
9,
10,
37,
0,
-18,
21,
-4,
-18,
-15,
-33,
16,
-9,
9,
62,
-26,
-11,
-17,
-13,
52,
-20,
-2,
66,
-15,
34,
26,
-29,
-14,
-25,
20,
28,
7,
-52,
82,
-30,
-40,
-18,
-27,
-22,
39,
-52,
-3,
15,
-33,
26,
66,
-9,
-24,
-18,
17,
3,
1,
3,
-4,
-6,
-37,
2,
19,
-11,
-44,
11,
16,
-23,
-51,
1,
1,
-52,
51,
15,
72,
-7,
-8,
-8,
-23,
-39,
45,
-31,
-20,
-10,
-49,
-23,
-9,
-7,
26,
-2,
-62,
-7,
7,
36,
22,
-12,
13,
25,
-5,
-6,
-46,
-26,
17,
-51,
25,
10,
-3,
21,
-51,
32,
-7,
-26,
-27,
-1,
-29,
-13,
-16,
-23,
-15,
37,
26,
2,
-1,
1,
15,
6,
16,
-46,
-9,
-18,
-5,
-25,
-8,
38,
-33,
5,
32,
49,
33,
48,
-3,
-2,
17,
0,
-29,
33,
-45,
-21,
20,
-15,
-21,
-22,
46,
67,
3,
17,
-26,
16,
14,
29,
21,
69,
12,
2,
-2,
18,
-3
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Ernest Nelson (Nelson) appeals from an order of the Montana Water Court filed July 31,2013, dismissing his objections to the water rights claim by Randall and Ila Mae Brooks (the Brooks). The Brooks’ claim was contained in the Water Court’s Temporary Preliminary Decree for the Big Hole River Basin (41D) issued on April 6,2007. We affirm.
ISSUES
¶2 A restatement of the issues on appeal is:
¶3 1. Did Nelson have a previously adjudicated right to the Disputed Well?
¶4 2. Did the motion to amend the Statement of Claim by the Brooks’ repudiate the originally filed claim?
¶5 3. Did the Water Court err by relying on the Brooks’filed Statement of Claim as prima facie proof of the water right ?
¶6 4. Did the Water Court err in concluding that it need not consider whether the Brooks’ claimed right was a "use” right or "filed” right?
¶7 5. Did the Water Court err in concluding that sufficient evidence existed to amend the Brooks’purpose of use to include domestic use?
¶8 6. Did the Water Court err in concluding that ownership of the point of diversion for the claim was not dispositive of the ownership of the water right?
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
¶9 This case involves a dispute over the water rights to a well (Disputed Well) located in Beaverhead County, in the northwest quarter of the southeast quarter of the southeast quarter of Section 5, Township 4 South, Range 9 West, P.M.M. (all Sections referred to hereafter are in this township and range). The Disputed Well is located on federal Bureau of Land Management (BLM) land. Several mining claim sites were historically situated throughout BLM land in Sections 4, 5, 8, and 9. Private land holdings surround the BLM land. The mining claim (also called a mill site) where the Disputed Well is situated was originally established by Minerals Engineering in the early 1950s for processing tungsten ore. Minerals Engineering drilled several wells, including the Disputed Well, for different purposes including operation of the mill and domestic use for the miners. In 1963, Minerals Engineering filed a Declaration of Vested Groundwater Rights for 100 gallons per minute (gpm), listing the Disputed Well as the diversion point, means of withdrawing as an electric driven pump, and claiming continuous use for “primarily domestic” purposes since 1954.
¶10 Adjacent to the Minerals Engineering site, Carl Kambich owned a ranch (Kambich Ranch). Several documents were presented showing cooperation between Minerals Engineering and Carl Kambich (Kambich) since the early 1950s for wells, fences, etc. Most of the documents presented concern a well drilled by Minerals Engineering in another mining claim site located in Section 8 (Section 8 Well). This well was drilled sometime around 1955, and the project report states it provided inadequate water for the mining operations so was traded to Kambich for “other considerations.” This well has a limited flow, between 1/5 to 1/2 gpm, and uses natural artesian pressure to transfer water downhill to a stock tank. The current user of this well is not known, but documents relating to the maintenance and improvement of the Section 8 Well, signed by the Kambich family, are dated as late as 2007. Nelson and the Brooks agree that this is not the well the Brooks have been using.
¶ 11 Another document of importance between Kambich and Minerals Engineering, dated July 1,1953, is simply entitled “Indenture.” This document grants Kambich the “sole and exclusive right” to a water well “on Minerals No 3 mill site mining claim.” No further description of the well is given, but the Indenture grants the “right to enter into and upon said mill site claim, and to pump water from said well, to water stock thereat, or to convey all or any part of the water from said well across said mill site claim by ditch or pipe line to adjoining lands.” The well conveyed in this Indenture is the subject of further discussion below.
¶12 On April 15, 1982, Kambich filed a Statement of Claim for Existing Water Rights (numbered 41D-40063). The Statement of Claim described an unnamed well located in the northwest quarter of the southeast quarter of the southeast quarter of Section 5; a place of use in Section 4, due east from the well and within the mill site boundaries (first place of use); a priority date of January 1,1954; a pump as means of diversion; and a flow rate of 100 gpm. The purpose of use was noted as stock water, and the right was declared to be a filed appropriation right. Attached to the Statement of Claim was a map with a hand drawn point of diversion and place of use; a copy of the 1963 Declaration of Vested Rights originally recorded by Minerals Engineering for the Disputed Well; and the 1953 Indenture. The map appears to indicate the Disputed Well as the diversion point, and the Water Master and Water Court both interpreted it to be for this well.
¶ 13 The Brooks purchased the Kambich Ranch in 1990. Kambich filed a notice of transfer of water right for claim 41D-40063 to the Brooks on August 1,1990. The Brooks operated the ranch until 1993 when they sold off all but 120 acres, which they still own. In 1990, the Brooks claim the Disputed Well was not used at the first place of use, but instead provided water to a bam on the ranch for a bathroom and kitchen, as well as stock water pumped by means of an above-ground hose into tanks northwest of the well in Section 5 (second place of use). In 1993, the Brooks were granted a right-of-way permit by BLM to bury water pipe and electrical lines from the Disputed Well. Though the permit identifies the location of the right-of-way as the eastern half of the northeast quarter of the southwest quarter of the southeast quarter of Section 5, only a portion of the lines travel through this area as the well is located in the adjacent west half of the northwest quarter of the southeast quarter of the southeast quarter of Section 5. However, attached to the permit, and incorporated by reference, is a map with a hand drawn location showing a line from the Disputed Well to a location that appears to be the bam, northwest of the well.
¶14 In 2006 or 2007, the bam was converted into a home for the Brooks’ son, Tim. The bam has since been sold, and the Disputed Well is no longer its source of water. The bam now uses a different well on BLM land, 200 feet north of the Disputed Well. Tim was granted a right-of-way permit by BLM to access this well in 2007. The Brooks also built a new home in 2007, in the southeast quarter of the northeast quarter of the southwest quarter of Section 5, northwest of the Disputed Well and west of the bam. The Brooks currently use the Disputed Well as the water source for this home (third place of use), though they apparently did not file a request to change place of use with the DNRC. The water is conveyed by underground pipe. They claim to have been using the water in this location at a travel trailer since 1993, prior to and while building their home.
¶15 Minerals Engineering ceased its operations at some point in 1976. Successors to Minerals Engineering included General Electric Corporation (GE), Union Carbide Corporation, and Leonard Garrand (Garrand). In 2002, Nelson purchased the mine interests from Garrand, and in 2007, Apex Abrasives (Apex), a company, organized by Nelson, received a permit for mining operations on the site. Nelson claims BLM did not notify him of the Brooks’ use of the Disputed Well, but he discovered it in 2007. Apex subsequently drilled a new well from which it gets 115 gpm.
¶16 While the mining claims were in the hands of GE, GE filed three statements of claim for water rights. Claim 41D-92881 is for a surface water right, apparently with a point of diversion out of the Big Hole River. Claim 41D-92882 and 41D-92883 are both well claims with a priority date of December 31, 1954, a point of diversion in the south half of the southeast quarter of Section 5, and a place of use in the southeast quarter of the southeast quarter of Section 5. In a separate proceeding (case 41D-167), the Water Court considered objections to these three claims and issued post-decree abstracts for each in 2012. The two well claims were granted to Nelson for a combined total not to exceed 100 gpm. The Brooks did not object in this proceeding.
B. Procedural Background
¶17 The current Water Court case involves only the 41D-40063 claim originally filed by Kambich. BLM, GE, and Nelson all objected to the claim. BLM and GE later withdrew their objections, leaving Nelson as the sole objector. The abstract for the claim contained DNRC issue remarks indicating that claims 40063,92882, and 92883 all appeared to be duplicate claims for the same historic appropriation of water due to the similarity in priority dates and point of diversion. The remarks also stated that “ownership of this right may be questionable [because t]he place of use appears to be on federal land.”
¶18 On May 17, 2011, prior to hearing, the Brooks filed a motion to amend the Kambich Statement of Claim. They sought to amend the place of use to the third and current place of use in Section 5; the priority date to June 15, 1953; the type of right to “use” rather than “filed”; and the flow rate to 10 gpm. On May 26,2011, a DNRC water resource specialist filed a memorandum recommending acceptance of all requested amendments. Specifically, the memorandum notes that the 1953 Indenture “transferred ownership of this well from Minerals Engineering Company to the Kambich ranch.” As to place of use, the specialist determined that “it is possible that stock were watered on the Brooks property prior to 1973.” Finally, it notes that if the amendments were accepted, all issue remarks could be removed.
¶19 The matter proceeded to a hearing with the Water Master. Nelson argued that the Disputed Well was not located within the right-of-way granted to the Brooks by BLM in 1993; he was the owner of the Disputed Well; he was the owner of the 100 gpm associated with the well pursuant to case 41D-167; if the Brooks held any water right it was an exempt right with a priority date in 2005 when he claimed they began using water at their new home; and the only water right granted to Kambich from Minerals Engineering was to the Section 8 Well.
¶20 Nelson testified that he worked at the Minerals Engineering mine from 1955-57 for surveying and grade control. He stated that the site used water from wells drilled on the site in addition to water from the Big Hole River. He described the site as containing a flotation mill, as well as a camp with a cookhouse and trailers where people lived. Dirk Nelson (Dirk) is an engineer who works for Apex. He prepared an exhibit showing the mining site boundaries as well as all the wells in the area. According to this map, there are eleven wells within, or close to, the mining permit area. Dirk testified that the 10 gpm flow of the Disputed Well would not be useful to the mine, and if Apex was granted the right to the well it would have to be cleaned out and redrilled in order to get 100 gpm. Dirk further testified that the mine is not concerned about the Brooks’ use of 10 gpm. Rather, the mine’s objection relates to liability concerns because the well and pumphouse are located within the mining project perimeter. The mine permit requires fencing and controls over access to the site. The first fence was constructed in 1994, and the current fence was built in 2007. At this time, Nelson put a gate in the fence for the Brooks to access the pumphouse. The mine did not object to Tim Brooks’ use of the well outside the project boundary, and similarly would not object to the Brooks’ use of any well outside the project boundary.
¶21 The Water Master’s report found that the claim belonged to the Brooks, and agreed with the DNRC that the amendments requested by the Brooks should be accepted, amending the place of use, the priority date, the type of right, and the flow rate, which in turn would allow for the removal of all issue remarks. The Master noted that the right did not include domestic use even though the Brooks “presented some evidence of domestic use” because they did not object to the purpose of use or otherwise request to add such use prior to the hearing. She also concluded that, though Nelson had presented some “valid questions regarding the history of the well,” he had failed to overcome the prima facie proof in the Statement of Claim as required by § 85-2-227, MCA.
¶22 Nelson objected to several elements of the Water Master’s report. The Water Court agreed with Nelson’s argument that the Indenture did not convey the Disputed Well to Kambich, thus finding the Water Master’s determination that the Indenture referred to the Disputed Well to be clearly erroneous. To support this, the court stated that the Indenture mentioned the Section 8 Well, rather than one in Section 5. Thus, the Water Court concluded that the amended priority date of Jome 15,1953, was unsupported by the evidence and reverted the date back to January 1, 1954, the date on the Statement of Claim. Nonetheless, the court concluded that though the Indenture did not convey title to the Disputed Well to Kambich, this did not affect the Brooks’ ownership of the water right because Nelson had failed to meet his burden in contesting the prima facie evidence of the filed claim. The court further found that the “slight discrepancy” in the legal descriptions for the well and the right-of-way were not determinative of ownership.
¶23 The Water Court also agreed with Nelson’s objection regarding place of use, concluding that no evidence supported pre-1973 use at the third place of use (the Brooks’ new home) when the Brooks admit that water was first used in this location in 1993. The court noted that any changes to a water right made after July 1,1973, are regulated by § 85-2-402, MCA. It recognized that not allowing the change to place of use may subject the Brooks to hardship, but the only remedy for them was to file the proper change application with the DNRC.
¶24 The court rejected all other objections by Nelson. Specifically, the court determined that the claims granted to him in the prior case were “not for the well involved in this Case.” It also determined that acceptance of the significantly reduced flow rate, from 100 gpm to 10 gpm, is generally beneficial to all water users and such requests to reduce water rights are routinely granted. It further determined that the Water Master’s decision to amend the type of right to “use” rather than “filed” was “harmless error if it were error at all” because a decree issued by the Water Court is not required to distinguish the type of right, citing § 85-2-234(6), MCA. Thus, the court determined that it need not consider what type of right the Brooks had, as established by the evidence.
¶25 The Brooks also objected to the Master’s report, and requested that domestic use be added. The court accepted this argument, noting that purpose of use was originally published as an issue for resolution based on an objection, later withdrawn, by GE. Because there was evidence of pre-1973 domestic use, the Water Court added this as an additional purpose of use for the claim.
¶26 Nelson appeals from the Water Court’s decision. He argues that it was not harmless error to allow a “use” right to be declared in place of a “filed” right; the Brooks’ claim should have been terminated after finding the Indenture did not convey the Disputed Well; the Statement of Claim was repudiated by the Brooks’ attempt to amend the Statement of Claim, and thus the Brooks were not entitled to the prima facie proof statute; there was no evidence of beneficial use by the Brooks, and no evidence of domestic use; and finally, that he is the owner of the well and the associated water right by virtue of being the successor for the mining claim and the rights granted to him in case 41D-167.
STANDARD OF REVIEW
¶27 As this case involves both a Water Master and the Water Court, two standards of review are applicable. “[T]he Water Court reviews the Water Master’s findings of fact for clear error and the Water Master’s conclusions of law for correctness.” Heavirland v. State, 2013 MT 313, ¶ 14, 372 Mont. 300, 311 P.3d 813; see also W. R. Adj. R. 23.
¶28 We apply the same standard of review to the Water Court as we do to an appeal from district court. Heavirland, ¶ 15 (citing Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶ 16, 361 Mont. 77, 255 P.3d 179). Whether the standard of review was correctly applied is a question of law, which we review for correctness. Heavirland, ¶ 15. Thus, we review the Water Court’s order de novo to determine whether it correctly applied the clear error standard of review to the Water Master’s findings of fact, and whether its conclusions of law are correct. Heavirland, ¶ 15.
DISCUSSION
¶29 1. Did Nelson have a previously adjudicated right to the Disputed Well?
¶30 Nelson repeatedly asserts that he has a prior adjudicated right to the Disputed Well. Nelson bases this claim on the fact that case 41D-167 granted him the right to use two wells in Section 5 for a cumulative total of 100 gpm. The Brooks did not object to that proceeding or in any other way dispute Nelson’s claim to such use. Additionally, Nelson alleges that the BNRC determined the three claims were for the same water right through the issue remarks on the abstracts indicating that all three claims appeared to be for the same historical appropriation based on the similarity in priority dates and points of diversion.
¶31 Rather than raising it as an issue, Nelson presents this as a given fact and characterizes each issue as whether the Water Court appropriately granted the Brooks a senior claim to a previously adjudicated well when they failed to object to the prior adjudication. However, the Water Court held that Nelson’s claims as adjudicated in the prior case were “not for the same well involved in this Case.” The two wells granted to Nelson in the previous adjudication are both located in the south half of the southeast quarter of the southeast quarter of Section 5. The Disputed Well is in the northwest quarter of the southeast quarter of the southeast quarter of Section 5. Given the numerous wells in this small area (with three in the south half alone), there is no evidence to suggest that the Disputed Well was one of the wells previously granted to Nelson. Additionally, Nelson admitted that Apex has never used the Disputed Well, and that the Brooks’ use of the well does not interfere with Apex’s use of water. As no argument is presented on why the Water Court was incorrect in finding that the two wells from the prior adjudication were not the same as the Disputed Well, there is no reason to reverse such a finding. Thus, the issues in this case are appropriately framed as Nelson objecting to the Brooks’ claim to an unadjudicated well.
¶32 2. Did the motion to amend the Statement of Claim by the Brooks’ repudiate the originally filed claim?
¶33 Similar to the previous issue, Nelson claims as fact that the Brooks repudiated the Statement of Claim filed in 1982 by filing a motion to amend the claim’s priority date, place of use, and amount of use. He then points to this alleged repudiation as placing the burden of proof on the Brooks to establish their claim, apparently as a new and distinct claim rather than an amendment to the earlier filed claim. However, again, Nelson failed to present argument on why the filing of such a motion is a repudiation of the original claim. At most, the Brooks sought to amend certain elements of the filed claim. Nothing in the record indicates they abandoned use of the claim, transferred the claim, or in any other respect repudiated their right to the claim.
¶34 The effect of a motion to amend a statement of claim is simply that it is judged against the original claim to determine if sufficient evidence supports the requested amendment. W. R. Adj. R. 19 states that the original filed claim is prima facie proof of the elements of the claim, and even a claimant’s objection to her own claim must be proven by a preponderance of the evidence to overcome this prima facie proof. In Weinheimer Ranch, Inc. v. Pospisil, 2013 MT 87, 369 Mont. 419, 299 P.3d 327, claimants filed a motion with the Water Court to amend their previously filed claim’s priority date. The Water Court denied the motion, finding that there was insufficient evidence to support the new date. We affirmed. Weinheimer Ranch, ¶ 1. The Water Master, and ultimately the Water Court, had to evaluate the motion to amend against the original claim to determine whether the amendment could be made. Rather than holding that the motion to amend repudiated or terminated the previously filed claim or subjected the claimant to having to prove the original priority date once the amended date was rejected, we held that the originally filed claim was considered prima facie proof of its contents, and the claimants had the burden to prove the requested amendment (against their own earlier claim) by a preponderance of the evidence. Weinheimer Ranch, ¶ 28. Since the claimant couldn’t prove the amendment with sufficient proof, the originally claimed priority date remained in effect.
¶35 Here, the Brooks’ motion to amend did not repudiate the filed claim and require them to prove a new claim. Rather, the 1982 claim correctly remained prima facie proof of the elements, which required proof by a preponderance of the evidence by the Brooks to be amended. ¶36 3. Did the Water Court err by relying on the Brooks’filed Statement of Claim as prima facie proof of the water right ?
¶37 Section 85-2-227(1), MCA, states “a claim of an existing right... constitutes prima facie proof of its content until the issuance of a final decree.” Thus, an objector has the burden to prove by a preponderance of the evidence that the elements of the original claim “do not accurately reflect the beneficial use of the water right as it existed prior to July 1,1973.” W. R. Adj. R. 19. As explained above, the rules and our prior precedent are clear that a motion to amend a statement of claim is not treated as a repudiation of the original claim. Just as the motion to amend needed to be proven by a preponderance of the evidence to overcome the prima facie proof of the original claim, Nelson’s objections to the claim were correctly held to the same standard.
¶38 Nelson presented evidence that there were several wells in the area, including another well in a different Section that was used by both the Brooks’ predecessor in interest and Minerals Engineering. However, he presented no evidence to suggest that Kambich was not using the Disputed Well, as the Statement of Claim states. He does not claim to have used the water himself, or even know of who was using it. Rather, he relies on the inference that since the mine was operating until 1976, it stands to reason that Minerals Engineering was using it until this time and that the Brooks “began squatting on [the Disputed Well] in 1990 when the mine was dormant.” The court correctly concluded that such inferences are not sufficient to overcome the prima facie proof of the filed Statement of Claim for the Disputed Well.
¶39 4. Did the Water Court err in concluding that it need not consider whether the Brooks’ claimed right was a “use” right or “filed” right?
¶40 According to the Water Court Claim Examination Rules, a “use right” is defined as putting water to beneficial use “without written notice, filing, or decree.” W.R.C.E.R. 2(a)(71). A “filed right” is a right “which has been filed and recorded in the office of the county clerk and recorder as provided by statute prior to July 1, 1973.” W.R.C.E.R. 2(a)(25). Though a final decree is not required to have the type of right identified, § 85-2-234(6), MCA, Nelson points to the examination rules which require the summary report of a claimed right (the abstract) to identify the type of right. W.R.C.E.R. 5(a)(l)(vi). However, the examination rules are only applicable to the DNRC for examining claimed rights prior to issuance of a decree. W.R.C.E.R. 1(b). The Water Right Adjudication Rules contain no similar provision requiring the Water Master or Water Court to consider the appropriate type of right during adjudication. Ultimately the Water Court declined to consider Nelson’s objection to the type of right, concluding that even if a “use” right was incorrect, the error was harmless.
¶41 This Court will not disturb the ruling of a lower court if the error does not affect a party’s substantial rights. Renner v. Nemitz, 2001 MT 202, ¶ 28, 306 Mont. 292, 33 P.3d 255; M. R. Civ. P. 61. We have previously determined that harmless error analysis is appropriate when evaluating whether the fixing of an arbitrary appropriation date for a water right was reversible error. Vidal v. Kensler, 100 Mont. 592, 594, 51 P.2d 235, 236 (1935). In Vidal, we held that as the appropriation date is only material in a question of priority, fixing an incorrect date is “harmless unless the objecting claimant can showthat his right antedates the date fixed for another” claim. Vidal, 100 Mont. at 594, 51 P.2d at 236.
¶42 In the present case, it is unclear what effect, if any, the type of right has on either party. It is possible that under different facts the type of right may have a bearing on priority or other rights of the parties, but in the present case the type of right is immaterial. Both types require proof of beneficial use, which is the primary requirement for any water right. The amount of use, priority date of use, and purpose of use are not related to the type of right. The Brooks are the only individuals with a valid claim to the Disputed Well under the Water Court’s order. Whether that right is determined to be a “use” right or a “filed” right will not change Nelson’s position with respect to the well, or otherwise impact any other water rights he may have. Thus, we agree with the Water Court that even if declaring the right to be a use right was error, that error was harmless and will not be disturbed.
¶43 5. Did the Water Court err in concluding that sufficient evidence existed to amend the Brooks’purpose of use to include domestic use ?
¶44 The Water Master did not make a finding of fact that domestic use was not proven. Rather, she made a conclusion of law that despite there being “some evidence regarding domestic use,” such use would not be considered as the Brooks had not timely requested to add it. Nelson argues that the Brooks never claimed a domestic use or objected to the purpose of use, nor was there any evidence of such use prior to 1973. Though the Brooks did not originally claim domestic use through an objection to their own claim prior to hearing, the transcript reveals that domestic use was discussed throughout by all parties. The Brooks disputed the Master’s report regarding the lack of domestic use through a letter to the Water Court. The Water Court determined to treat their post-hearing request to add domestic use as an objection because it was filed before the deadline for objections to the Water Master’s report, and the purpose of use was properly notified as an issue to be determined based on earlier objections. Nelson did not present any authority as to why the Water Court’s treatment of the request as an objection was impermissible, so we will not consider that decision.
¶45 As to the sufficiency of the evidence, Nelson’s own briefing admits that evidence of domestic use prior to 1973 was established. His brief identifies as an uncontroverted fact that “Nelson testified that the Disputed Well was used for mining operations including the domestic needs of employees at the site [from 1955 to 1957].” (Emphasis added.) Nelson, having worked at the site during that time, explained that the area contained a camp where miners lived. Randall testified that it was his understanding from Kambich that the Disputed Well supplied the mining camp as it was the only well that provided potable water. He also explained that pipes still lead from the well to the foundations where the old bathrooms, showers, and kitchens used to be. The 1963 Declaration of Vested Rights for the Disputed Well further identifies the beneficial use to be “primarily domestic water.” Thus, there was evidence of pre-1973 domestic use of the water. From this evidence, we cannot conclude that the finding of domestic use by the Water Court was clearly erroneous.
¶46 6. Did the Water Court err in concluding that ownership of the point of diversion for the claim was not dispositive of the ownership of the water right?
¶47 Nelson claims the Water Court incorrectly disregarded the evidence it produced as to Apex’s ownership of the mining claim where the Disputed Well is situated. Nelson alleges that as the successor in interest to Minerals Engineering’s mining claims, it can be inferred that Apex is also the owner of the well itself. Nelson also points to the Brooks’ failure to present any chain of title evidence establishing their ownership of the well, other than the 1953 Indenture which the Water Court concluded covered a different well. This failure, it is argued, establishes that Nelson is the only possible owner of the Disputed Well and its related water use.
¶48 A water right is an usufructory right, that is a right to make use of the water, rather than a physical ownership right. Mont. Trout Unlimited, ¶¶ 31-32 (citing Albert W. Stone, Montana Water Law, 70, 73 (St. Bar of Mont. 1994)). We long ago stated that “the ownership of land where water has its source does not necessarily give exclusive right to such waters so as to prevent others from acquiring rights therein.” Woodward v. Perkins, 116 Mont. 46, 53, 147 P.2d 1016, 1019 (1944). Thus, like the Water Court, we conclude that Nelson’s claim of ownership of the mining claim where the Disputed Well is situated is not dispositive of the issue of ownership of the water right to use the Disputed Well. Nelson had the burden to prove that the 1982 Statement of Claim did not accurately describe the use of water from the Disputed Well prior to 1973. The ownership of the mining claim itself is not determinative of such use.
CONCLUSION
¶49 As the Water Court concluded, “Nelson may wish [the] Brooks’ well were elsewhere, but that desire does not translate into proof that [the] Brooks’ well claim is invalid.” Nelson failed to meet his burden in proving that the Brooks’ claimed use of the Disputed Well did not accurately reflect the use as it existed prior to 1973. We affirm the Water Court’s order.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and McKINNON concur.
A1990 BLM memorandum written during cleanup of the site identifies five wells in Section 5, and a spring in Section 8.
The Water Master’s report states that the “exhibits indicate that Kambich is still using the section 8 well, at least as of 2000.’’
Also of note, the 1990 BLM memo only identifies the Disputed Well as having an existing pump.
The location of this well is not described and the associated water rights claim number is not given.
In 2009, Apex allegedly laid barbed wire across the right-of-way to the well. The Brooks travelled to the pumphouse relatively frequently to turn it on and off, and Randall Brooks tripped over the wire, fell, and broke his shoulder. He retained counsel in his claim against Apexfor this incident, but the outcome is not explained in the record before us.
We note that the Water Court appears to have misread the Indenture on this point as the document does not mention a location by Section number, but rather notes a numbered mining claim site. Other evidence in the record suggests that the Section 8 Well could not exist in this location. However, as the Brooks did not cross-appeal on this issue, we will not consider it further.
|
[
10,
7,
11,
-7,
22,
13,
23,
18,
6,
58,
-15,
-25,
50,
-36,
52,
-15,
-85,
-57,
59,
-29,
-37,
-13,
53,
41,
32,
5,
-26,
22,
-41,
16,
-6,
25,
-54,
-33,
17,
52,
-12,
39,
-70,
-17,
-3,
49,
-17,
-22,
19,
23,
-17,
14,
11,
14,
26,
-57,
-30,
25,
-58,
-12,
-23,
-21,
-45,
-8,
-32,
2,
46,
63,
41,
31,
-5,
20,
-3,
-35,
-31,
10,
9,
-32,
21,
41,
42,
-15,
-43,
33,
-48,
15,
-26,
-15,
-19,
-13,
-35,
-15,
65,
0,
-41,
-10,
-12,
-37,
7,
9,
7,
-64,
-27,
14,
-24,
11,
20,
14,
8,
-34,
-25,
0,
20,
-1,
-7,
8,
-2,
-36,
-51,
43,
21,
-9,
-13,
-15,
-55,
34,
30,
37,
-26,
-32,
-14,
-40,
-23,
25,
-36,
-7,
9,
-40,
31,
45,
3,
0,
-50,
27,
15,
7,
26,
-56,
-3,
65,
4,
16,
4,
-20,
21,
37,
-1,
56,
6,
-20,
52,
-62,
2,
3,
21,
-3,
-7,
-20,
-44,
64,
41,
-60,
9,
-17,
29,
-43,
0,
27,
35,
30,
-11,
-10,
-28,
-13,
47,
-30,
14,
1,
-45,
29,
19,
29,
-3,
39,
-10,
-46,
20,
30,
-43,
-14,
2,
5,
-13,
-17,
2,
-11,
13,
21,
-4,
27,
-1,
7,
49,
6,
34,
51,
4,
-22,
16,
-5,
82,
-44,
-1,
-25,
33,
-5,
53,
7,
28,
5,
22,
32,
-2,
-59,
-31,
-22,
53,
-21,
11,
59,
-25,
-29,
-41,
-22,
-7,
-40,
-23,
-14,
-19,
-15,
-52,
0,
-23,
72,
-20,
-62,
-2,
24,
50,
12,
25,
-4,
-57,
-48,
29,
-2,
7,
-12,
5,
10,
-58,
12,
31,
4,
13,
21,
32,
2,
-37,
-65,
5,
-17,
41,
0,
1,
8,
-32,
13,
-20,
4,
-15,
-3,
-43,
43,
-30,
15,
-27,
-45,
-23,
-6,
0,
12,
14,
-31,
-32,
-26,
11,
33,
1,
39,
-46,
11,
-18,
5,
18,
64,
-72,
53,
15,
4,
-31,
-9,
-21,
-28,
16,
3,
25,
-13,
-39,
24,
7,
16,
11,
9,
-52,
24,
7,
11,
40,
-31,
52,
-11,
-37,
7,
23,
-31,
52,
24,
-13,
31,
36,
-33,
-6,
-16,
-14,
28,
-17,
27,
-35,
-29,
0,
-30,
-35,
16,
14,
0,
-13,
-57,
-18,
7,
-15,
-12,
63,
-19,
-65,
41,
18,
-25,
28,
21,
14,
14,
-46,
-7,
0,
13,
28,
-41,
70,
9,
52,
9,
11,
-31,
18,
-62,
-47,
41,
-1,
29,
-16,
-48,
31,
-1,
21,
11,
14,
-12,
-16,
-37,
-18,
-21,
-8,
-40,
44,
-14,
-41,
-26,
-4,
-15,
6,
36,
-19,
33,
2,
-66,
-46,
-34,
21,
-6,
89,
-2,
-11,
0,
-6,
44,
-29,
32,
-56,
28,
15,
20,
-57,
-9,
-51,
-14,
6,
-45,
-40,
-11,
0,
22,
-31,
-18,
1,
-11,
-42,
-20,
-26,
26,
39,
-47,
22,
-4,
-69,
73,
21,
9,
-2,
-14,
22,
-26,
-5,
46,
42,
86,
-17,
-36,
6,
56,
-54,
18,
16,
-62,
91,
-19,
-19,
38,
44,
-17,
-22,
4,
15,
-35,
30,
54,
9,
-103,
8,
-11,
1,
-60,
42,
-32,
7,
-17,
29,
-28,
11,
3,
15,
-1,
27,
77,
55,
-26,
25,
-49,
-41,
-6,
33,
-14,
-24,
42,
9,
11,
12,
3,
-29,
6,
-40,
-39,
121,
-20,
-38,
-14,
-7,
2,
-44,
28,
3,
-16,
-19,
-15,
9,
11,
58,
4,
-86,
40,
-19,
-19,
16,
-33,
29,
-13,
36,
17,
-23,
14,
-51,
-6,
-7,
-4,
34,
26,
-11,
-10,
-6,
24,
-23,
34,
-8,
39,
-5,
28,
-5,
-54,
-21,
-17,
-45,
-8,
-8,
102,
-8,
-40,
-7,
-40,
-54,
29,
43,
-8,
-9,
-7,
-28,
-33,
-37,
11,
-22,
0,
36,
-13,
-31,
1,
75,
-75,
1,
-2,
10,
55,
13,
-47,
-13,
28,
-7,
25,
12,
34,
31,
-2,
34,
-59,
60,
-30,
13,
-20,
3,
55,
-35,
24,
-37,
3,
30,
-19,
21,
-22,
-18,
-22,
5,
-26,
-10,
17,
-28,
38,
20,
3,
-9,
-33,
-18,
-31,
3,
-9,
-35,
-40,
-13,
29,
14,
-10,
-5,
32,
40,
5,
14,
-3,
49,
17,
7,
-13,
-19,
13,
27,
36,
13,
9,
13,
-22,
-5,
72,
14,
-50,
32,
1,
-12,
36,
10,
-20,
41,
4,
46,
29,
32,
44,
4,
-6,
42,
16,
11,
40,
26,
-25,
13,
21,
4,
-40,
9,
-17,
19,
10,
19,
-6,
12,
-65,
-30,
-1,
9,
-35,
47,
-26,
-37,
-11,
18,
-5,
1,
2,
6,
-8,
-7,
6,
-2,
53,
-51,
-26,
-57,
12,
5,
17,
28,
21,
25,
34,
-19,
21,
-7,
-29,
-18,
-13,
16,
5,
-49,
19,
63,
-20,
-31,
37,
24,
3,
4,
-28,
-22,
18,
-32,
35,
1,
-25,
36,
-17,
-31,
-24,
-65,
-44,
-32,
-24,
29,
41,
23,
30,
-11,
2,
-2,
10,
1,
66,
43,
-1,
-33,
-18,
-40,
12,
-13,
12,
12,
30,
-16,
-9,
-31,
-23,
30,
-30,
-1,
20,
1,
-14,
-89,
-36,
-8,
-55,
42,
29,
15,
-14,
3,
-5,
-35,
13,
-30,
-12,
43,
-7,
42,
-30,
-28,
76,
2,
-51,
-15,
-38,
-4,
22,
22,
29,
9,
20,
-20,
-39,
47,
21,
17,
54,
9,
-23,
20,
-10,
-34,
-16,
-45,
-2,
-16,
-51,
18,
-20,
12,
47,
31,
39,
-26,
42,
-11,
20,
-1,
11,
-49,
-70,
-10,
37,
84,
40,
-9,
51,
27,
-21,
86,
4,
-73,
52,
-25,
14,
-30,
19,
-44,
18,
-1,
-9,
11,
-27,
-26,
-4,
18,
17,
6,
-16,
26,
28,
-7,
41,
-5,
-38,
-3,
17,
-80,
4,
-12,
-79,
15,
-55,
6,
-16,
30,
25,
-16,
-22,
10,
-22,
17,
53,
-13,
-35,
-25,
-45,
6,
-46,
-37,
5,
-41,
73,
34,
11,
-10,
29,
-19,
-6,
-26,
-17,
-2,
35,
-70,
26,
-9,
-20,
-13,
62,
30,
17,
-19,
-39,
28,
-48,
30,
21,
38,
19,
-16,
-27,
-5,
13,
13,
-1,
3,
62,
50,
15,
-58,
54,
-7,
-58,
-29,
29,
-39,
26,
-44,
-19,
-6,
17,
-41,
5,
-32,
-12,
-2,
8,
4,
6,
9,
18,
25,
-44,
7,
-8,
-39,
28,
7,
-3,
-59,
-17,
12,
60,
2,
23,
-14,
17,
38,
46,
-14,
17,
-37,
-21,
13,
20,
-41,
-4,
22,
42,
20,
-44,
47,
-17,
-9,
-20,
0,
11,
-20,
-7,
-26,
-25,
-6,
33,
-12,
-5,
-39,
8
] |
JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Michael Simpson appeals an order for restitution entered by the Montana Ninth Judicial District Court, Toole County, on December 13, 2012. We address the following issues on appeal:
¶2 1. Whether Simpson preserved his objection to the award of restitution for two victims based on their lack of affidavits or testimony.
¶3 2. Whether the District Court’s restitution order was supported by substantial evidence.
¶4 We affirm in part, reverse in part, and remand for further proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
¶5 On July 16,2012, Simpson pleaded guilty to a single count of theft by common scheme arising from the theft of property from a salvage yard owned by Robert Appley. In exchange for the guilty plea, the State agreed to dismiss the remaining charges against him. Pursuant to the plea agreement, the State recommended a five-year commitment, suspended, to the Department of Corrections and restitution to be determined by the District Court. The agreement specifically provided that Simpson would be hable for restitution “to any victim on the charges that were dismissed pursuant this plea agreement.”
¶6 The court ordered a pre-sentence investigation (PSI) in part to determine an appropriate amount of restitution. The officer completing the PSI noted that restitution had been a “nightmare” to calculate, in large part because it was difficult to determine the value of the various scrap items. The PSI calculated Apple/s restitution request to be $30,460.59 for the various vehicle parts and scrap metal. The PSI also included amounts for two other alleged victims of thefts Simpson had committed, Archie Johnson and Kyle Coder. Johnson requested $500 for the insurance deductible for Simpson’s theft and damage of a flatbed trailer, and Coder requested $360 to reimburse him for his purchase from Simpson of a stolen Oldsmobile. Both items were recovered in Pondera County. Simpson’s plea agreement resulted in dismissal of the charges for these thefts, but Simpson agreed to pay restitution for the dismissed charges.
¶7 The District Court held a sentencing and restitution hearing on September 4, 2012. Near the end of the hearing, Simpson’s counsel raised objections to the evidence presented. He disputed Apple/s claimed amount of losses and argued that $8,000 would be a more appropriate amount of total restitution in this case. The court sentenced Simpson pursuant to the plea agreement on September 25, 2012. On December 13, 2012, it issued its order for restitution, ordering Simpson to pay a total of $31,878.78 to the victims. Simpson appeals the court’s order for restitution.
STANDARD OF REVIEW
¶8 A criminal sentence is reviewed for legality. State v. Benoit, 2002 MT 166, ¶ 18, 310 Mont. 449, 51 P.3d 495. “Findings of fact regarding the amount of restitution ordered as part of a criminal sentence are reviewed to determine whether they are clearly erroneous.” State v. Coluccio, 2009 MT 273, ¶ 40, 352 Mont. 122, 214 P.3d 1282, overruled in part on other grounds, State v. Kirn, 2012 MT 69, 364 Mont. 356, 274 P.3d 746. A finding of fact is clearly erroneous if it is not supported by substantial evidence. City of Billings v. Edward, 2012 MT 186, ¶ 18, 366 Mont. 107, 285 P.3d 523. Substantial evidence is “evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance.” State v. Jent, 2013 MT 93, ¶ 10, 369 Mont. 468, 299 P.3d 332.
DISCUSSION
¶9 1. Whether Simpson preserved his objection to the award of restitution for two victims based on their lack of affidavits or testimony.
¶10 A sentencing court is required to order an offender to pay full restitution to any victim who has sustained a pecuniary loss. Section 46-18-241, MCA. The court must comply with statutory requirements in determining an amount of restitution. Benoit, ¶ 23. Simpson contends that the District Court erred by ordering him to pay restitution to Johnson and Coder when the PSI did not include affidavits detailing their loss and they did not testify at the restitution hearing. He alleges that the court failed to comply with the statutory procedural requirements that a PSI include “an affidavit that specifically describes the victim’s pecuniary loss and the replacement value in dollars of the loss, submitted by the victim.” Section 46-18-242(l)(b), MCA. The State responds that Simpson failed to object to the amounts requested by Johnson and Coder and that he has waived his right to appeal the court’s order of restitution for these two victims.
¶11 “[W]e will not put a district court in error for failing to address an issue or an argument that was not made before it.” State v. David C. Johnson, 2011 MT 116, ¶ 21, 360 Mont. 443, 254 P.3d 578. “Above all else, the rationale underlying the timely-objection rule is judicial economy and “bringing alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.’ ” State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (quoting City of Missoula v. Asbury, 265 Mont. 14, 20, 873 P.2d 936, 939 (1994)). Although the Court will review an unpreserved claim that a criminal sentence is illegal, State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979), “a sentencing court’s failure to abide by a statutory requirement rises to an objectionable sentence, not necessarily an illegal one....” State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892. In David C. Johnson, we affirmed a district court’s restitution order despite the lack of victim affidavits where the defendant had not objected on that ground at the time of sentencing. David C. Johnson, ¶¶ 19-21. Soon thereafter, we reiterated that a defendant’s failure to object to restitution imposed at sentencing forfeits his claim on appeal that the PSI did not contain adequate information to support a restitution award. State v. Charley Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638.
¶12 Here, Simpson made a general objection at the restitution hearing to the lack of evidence presented for Applets requested restitution. He did not object to the amounts requested by Johnson and Coder or to the basis for their awards. As we held in David C. Johnson and Charley Johnson, the District Court’s alleged failure to require evidentiary support for these victim losses results in a merely objectionable sentence. Because Simpson failed to object on this ground, he has waived this issue for consideration on appeal.
¶13 2. Whether the District Court’s restitution order was supported by substantial evidence.
¶14 A victim who sustains pecuniary loss from a defendant’s criminal action is entitled to recover all special damages substantiated by evidence in the record that are recoverable in a civil action. Section 46-18-243(l)(a), MCA. Offenders are liable for restitution only for those offenses of which they have been found guilty or to which they have admitted or agreed to pay restitution. State v. Breeding, 2008 MT 162, ¶ 19, 343 Mont. 323, 184 P.3d 313. Even if actual losses are uncertain, they may be recoverable if they are calculated by use of reasonable methods based on the best evidence available under the circumstances. Benoit, ¶ 29. Reasonable methods include “a reasonably close estimate of the loss.” State v. Dodson, 2011 MT 302, ¶ 12, 363 Mont. 63, 265 P.3d 1254 (internal citations omitted). We have held that “ ‘[n]othing in the controlling restitution statutes... requires a court or a victim to substantiate a restitution calculation with documentation.’ ” State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321 P.3d 841 (quoting State v. McMaster, 2008 MT 268, ¶ 29, 345 Mont. 172, 190 P.3d 302). A sentencing court accordingly may award restitution in reliance on victim testimony. Aragon, ¶ 14. A defendant has a due process right to “ ‘explain, argue, and rebut any information’ presented at sentencing.” Aragon, ¶ 12 (quoting State v. Roedel, 2007 MT 291, ¶ 65, 339 Mont. 489, 171 P.3d 694). When a Defendant does not present contradictory evidence, the District Court does not err in relying on a victim’s estimates of loss. Dodson, ¶ 14.
¶15 Simpson challenges the court’s calculation of restitution for Appley, asserting that its calculations were not supported by substantial evidence in the record. He also objects to the court’s reliance on Appley’s estimates of loss. We address each specific argument in turn.
a. Total weight of the scrap metal
¶16 The District Court ordered Simpson to reimburse Appley for the cost of fourteen tons of scrap metal, amounting to $2,800.00 in damages. Simpson argues that the evidence in the record does not support the allegation that he stole this much scrap metal. Simpson points to receipts obtained from Pacific Steel and Recycling, attached to the PSI, which account for only approximately seven tons of scrap metal.
¶17 To support its findings regarding the amount of scrap metal, the District Court relied on Appley’s testimony that he had ten tons of scrap located in one area of the properly and four tons in another area. Appley testified as to the items that were missing from the two locations. He also completed a lengthy hand-written affidavit of these items, which was attached to the PSI. The officer who completed the PSI testified that the receipts from Pacific Steel and Recycling were from the Pondera County Attorney's initial investigation and that they may be incomplete. Later, when she was compiling the PSI, the officer was unable to obtain any records from Pacific Steel because of the amount of time that had passed. Additionally, although law enforcement’s initial investigation revealed that Simpson also scrapped metal at another recycling plant, there are no receipts from that center included in the PSI.
¶18 “ The credibihty of witnesses and the weight to be given their testimony are determined by the trier of fact, whose resolution of disputed question of fact and credibility will not be disturbed on appeal.’ ” State v. Heath, 2004 MT 126, ¶ 52, 321 Mont. 280, 90 P.3d 426 (quoting State v. Hilgers, 1999 MT 284, ¶ 12, 297 Mont. 23, 989 P.2d 866). Here, the District Court chose to believe Appley’s assessment of how much scrap iron was on his property and awarded him that amount rather than a reduced amount tied solely to the receipts attached to the PSI. Simpson does not support his contention that the attached receipts establish conclusively how much scrap iron Simpson stole from Appley’s property. The District Court acted within its discretion in relying on Appley’s testimony. The District Court’s determination of how much restitution to award for the scrap iron is not clearly erroneous.
b. Other parts
¶19 Simpson next disputes the court’s order of restitution for $400 in miscellaneous parts. Again, the District Court relied largely on Appley’s testimony to determine the value of loss for these items. Appley testified that he had parts in a shed that were taken by Simpson, including some “bell housings and transmissions.” A court may use reasonable methods to calculate restitution, including estimates, if it is reasonable under the best evidence available under the circumstances presented. Benoit, ¶ 29. Simpson argues that Appley’s request of $400 for these items was nothing more than complete guess work. Although there was confusion at the hearing when discussing the miscellaneous parts, Appley testified as to what was missing and, as written in his inventory, estimated that the missing items were worth $400. The District Court is in the best position to judge the credibility of witnesses and weigh the evidence before it. Heath, ¶ 52. Appley’s testimony and inventory attached to the PSI comprise sufficient evidence to support the $400 in restitution for the miscellaneous parts. We do not find clear error in this portion of the District Court’s order.
c. Radiators
¶20 Simpson next disputes the court’s imposition of restitution for the radiators stolen from vehicles in Appley’s yard. Simpson first argues that he did not take the radiators. The charging documents specifically list radiators as items stolen from Appley. The District Court sentenced Simpson pursuant to a plea agreement in which he agreed to pay restitution for losses related to any of the charges against him. Although Simpson disputes the number of radiators he stole, the District Court was entitled to reject his testimony. Imposing restitution for the radiators was proper. Breeding, ¶ 19.
¶21 Alternatively, Simpson alleges that the court did not have sufficient evidence to calculate the worth of the radiators to be $7,420.70. The District Court relied on Appley’s testimony in conjunction with receipts attached to the PSI from Appley’s car repair business. Simpson argues that Appley’s receipts were an improper tool for calculation because they included the cost of removing the radiator from the vehicle, which was already done. Appley testified to the necessity for the labor cost at the hearing, stating that when Simpson took out the radiators, he caused damage to the inside of the vehicles, making it more difficult to replace the radiators. Again, the District Court weighed the evidence before it and chose to believe Appley’s estimate over Simpson’s objections. Simpson does not point to more refiable or accurate information in the record that the District Court ignored. The District Court relied on testimony from Appley, who works in car repairs, and the documentation that he provided. We conclude that there is sufficient evidence in the record to support the District Court’s order for $7,420.70 in radiator replacement costs.
d. Road repairs
¶22 Simpson next disputes the cost for repair of Appley’s road. The District Court found that Simpson severely damaged the half-mile driveway to Appley’s salvage yard when he attempted to haul the stolen goods out in muddy conditions. The court ordered Simpson to pay $9,000 for repair of the road. The court based this amount on testimony from Appley and from Sam Nickol, an independent contractor who gave an estimate on repairing Appley’s road. Nickol’s estimate also is attached to the PSI.
¶23 Simpson argues that this order for restitution provides a windfall to Appley by improving the road beyond the condition it was in before Simpson damaged it. Simpson points to Appley’s testimony that the road was only a dirt road, arguing that the amount of restitution will result in upgrading “what was essentially a dirt path” into an improved gravel road. Simpson also testified as to his opinion that the amount of gravel in the estimate was unnecessary to improve the road. Nickol contradicted Appley’s statement that the road was only a dirt road, stating “Whether or not [Appley] remembers it, there’s been truckloads of gravel dumped in mud holes and that kind of stuff on and on and on ... . He said it was a dirt trail. Actually, it wasn’t. I mean it was an access road. In order to repair that, you have to replace that to where it will stand back up.” Simpson did not introduce contrary evidence of what would constitute a reasonable amount of repair. Further, a victim is entitled to recover “the full replacement cost of property taken, destroyed, harmed, or otherwise devalued as a result of the offender’s criminal conduct.” Section46-18-243(l)(b), MCA. The State is required to submit evidence of only a “causal relationship” between an offense and damage before a defendant maybe charged withpayingrestitution for the damage. Jent, ¶ 13. Here, the evidence supported the State’s contention that Simpson’s use of a flat-bed trailer on Appley’s property caused damage to the road. The testimony and documentation in the record supports the $9,000 repair cost. We affirm the road repair cost included in the court’s restitution order.
e. Aluminum Boats
¶24 The District Court’s restitution order included $500 for the value of two aluminum boats Simpson allegedly stole from Appley’s property. Simpson argues that this award was improper because he was not charged with stealing the boats. Although Simpson agreed to pay restitution for charges dismissed under the plea agreement, he did not agree to pay for items that he was never charged with stealing. We have disallowed restitution for offenses that defendants have not admitted, been found guilty of or agreed to pay. Breeding, ¶ 19; In re B.W., 2014 MT 27, ¶ 23, 373 Mont. 409, 318 P.3d 682.
¶25 The State charged Simpson with three counts of theft. The information lists the property he was accused of stealing as “radiators, scrap metal and automobile parts,” and “a 1951 GMC Pickup and a 1940 Oldsmobile.” The charging documents include no reference to the allegedly stolen boats. Appley did not report the boats missing until approximately a month after the charges were filed against Simpson. When questioned at the hearing, Simpson denied stealing the boats. The evidence presented regarding the boats does not establish that Simpson admitted to stealing them or that he agreed to pay restitution for the loss. Accordingly, we reverse the District Court’s imposition of restitution for the two aluminum boats.
f. 1951 GMC truck
¶26 Simpson finally disputes the court’s valuation of a 1951 GMC truck. The District Court included $4,000 in restitution for the truck, which Simpson admitted to having taken from the property. The court relied on Appley’s testimony that he estimated that the truck was valued at approximately $4,000. Appley based his testimony on the fact that he found a similar truck, in good condition, worth $17,000. Because his truck was not in good condition, Appley opined that $4,000 was an acceptable valuation. Appley’s testimony was not supported by any documentation of a similar make or model truck with the value he ascribed. Instead, the PSI author explained that she was unable to determine a specific value for the truck and found advertisements for similar trucks in good condition being sold for $2,800 and $5,000. The trucks in these advertisements appear to be in much better condition than Appley’s truck. The defense included as an exhibit at the restitution hearing a picture of Appley’s truck showing that it was riddled with bullet holes. Appley testified that he previously had received restitution for damage to the truck from that vandalism.
¶27 Although “documentation supporting the claimed loss is not generally required,” we have held that restitution is not supported by substantial evidence where the evidence before the court is conflicting and no other testimony or evidence is available to be examined or reviewed as to the discrepancy. Aragon, ¶ 20. Losses must be calculated by reasonable methods based on the best information available under the circumstances. McMaster, ¶ 28. In Aragon, the court was faced with two estimates for repair to a garage that the defendant damaged in a drunk-driving incident. Aragon, ¶ 6. The estimates were significantly different because one included the cost of repainting the house “to match the current color.” Aragon, ¶ 18. We reversed the District Court’s decision to use the more expensive estimate because there was no evidence indicating that the house needed to be painted and “[a] reasonable mind could not conclude, solely from the two estimates, that one was more appropriate than the other.” Aragon, ¶ 19.
¶28 Here, the District Court relied on Appley’s guess that his truck was worth $4,000 and ignored the prices in the advertisements included in the PSI. As in Aragon, the court did not give context for its decision to choose one estimate over another. A reasonable mind cannot conclude, from the competing evidence before the District Court, that Appley’s evidence was more appropriate to use. Accordingly, we reverse the court’s imposition of restitution for the $4,000 value of the GMC truck and remand for further factual findings to determine a proper amount of restitution for this item of property.
CONCLUSION
¶29 We affirm the District Court’s order of restitution to Johnson and Coder because of Simpson’s failure to preserve the objection he raises on appeal. We also affirm the Court’s order of restitution to Appley for the value of scrap metal, road repairs, miscellaneous parts and radiators. We reverse the court’s restitution to Appley for the aluminum boats and the 1951 GMC truck. We remand for further factual findings regarding the proper amount of restitution for Appley’s 1951 GMC truck.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, COTTER and RICE concur.
|
[
22,
10,
-26,
-6,
19,
-60,
-10,
-54,
7,
31,
34,
-7,
18,
-5,
-26,
-22,
-8,
-44,
-8,
-17,
3,
-45,
47,
-69,
2,
-25,
2,
13,
5,
0,
24,
28,
9,
-39,
32,
-6,
-25,
15,
11,
-1,
-21,
-33,
12,
10,
-71,
36,
-56,
-23,
14,
-67,
50,
1,
26,
-31,
73,
21,
16,
17,
-63,
37,
2,
-1,
9,
1,
-13,
-14,
7,
-12,
-21,
6,
-13,
20,
2,
34,
13,
-51,
-3,
8,
-2,
46,
-13,
-13,
-58,
-20,
23,
-62,
62,
-39,
-19,
15,
-21,
19,
30,
6,
23,
22,
52,
-58,
41,
-7,
-34,
-41,
-18,
25,
0,
3,
-1,
-67,
5,
56,
84,
-8,
53,
-43,
-63,
-3,
-9,
6,
54,
32,
-1,
9,
-33,
-9,
2,
-8,
49,
-12,
0,
48,
44,
27,
6,
-53,
-33,
-45,
-15,
7,
11,
118,
-4,
2,
-1,
2,
-6,
9,
-4,
13,
8,
-33,
38,
6,
-20,
45,
53,
-52,
28,
-28,
-12,
-25,
56,
-11,
-4,
38,
16,
19,
38,
-41,
-27,
-5,
47,
-29,
7,
-15,
13,
23,
-45,
-34,
-27,
-107,
18,
-11,
-8,
-26,
-64,
8,
38,
59,
3,
-34,
-11,
-8,
1,
12,
13,
-34,
84,
-21,
7,
7,
-13,
-59,
52,
-16,
50,
25,
114,
5,
19,
-13,
-39,
20,
29,
0,
-22,
-7,
113,
-53,
3,
6,
39,
-31,
11,
-25,
-17,
5,
0,
12,
0,
-5,
-67,
12,
-14,
-15,
-21,
8,
-8,
-51,
11,
39,
35,
-22,
-1,
-64,
33,
23,
-95,
-28,
-29,
-12,
-19,
-31,
46,
28,
-1,
-15,
38,
38,
-26,
-34,
-10,
-13,
26,
1,
-7,
44,
5,
-19,
-30,
42,
-9,
-24,
15,
-18,
-53,
1,
-74,
13,
-25,
-27,
9,
3,
48,
-30,
15,
-5,
-1,
77,
25,
-17,
28,
-72,
2,
-12,
-39,
-12,
6,
19,
-35,
52,
6,
-2,
-39,
-21,
50,
13,
44,
52,
-62,
-13,
0,
20,
-34,
-12,
79,
-47,
-33,
11,
26,
37,
70,
-8,
-40,
-59,
50,
-29,
-64,
-2,
-45,
-2,
-70,
6,
3,
4,
51,
9,
12,
1,
-3,
33,
-21,
5,
37,
-54,
10,
9,
-14,
-14,
-14,
-2,
5,
24,
-6,
9,
16,
-12,
-8,
19,
52,
-19,
59,
42,
-27,
-42,
9,
-8,
21,
-42,
-47,
-37,
-41,
-24,
-34,
-54,
70,
-8,
-2,
-46,
-20,
7,
7,
-3,
-77,
-43,
80,
-74,
-31,
-66,
-67,
-26,
-24,
5,
-17,
-8,
-17,
-56,
23,
-92,
-30,
-30,
-14,
34,
42,
-32,
-36,
-50,
20,
14,
-42,
-27,
-39,
17,
-1,
39,
-11,
9,
-29,
-20,
-32,
-8,
51,
45,
56,
-8,
46,
-44,
-14,
21,
-52,
42,
9,
26,
11,
-51,
-14,
26,
-18,
-20,
-23,
3,
-47,
17,
-7,
4,
9,
42,
-5,
-2,
67,
43,
-5,
9,
-10,
2,
-9,
71,
52,
-73,
-3,
0,
5,
-23,
-27,
20,
52,
-30,
50,
-10,
-29,
-17,
-12,
47,
10,
-1,
6,
42,
20,
27,
38,
24,
9,
-24,
-36,
32,
-21,
65,
-39,
7,
-32,
19,
11,
14,
-22,
-50,
13,
-26,
15,
-6,
72,
-30,
-10,
-31,
10,
65,
31,
21,
8,
-47,
56,
12,
69,
67,
58,
-9,
3,
-19,
11,
-2,
42,
68,
14,
-13,
-3,
-21,
-27,
70,
0,
-49,
-7,
-28,
-25,
-40,
27,
-53,
12,
-12,
3,
-11,
32,
3,
20,
-5,
-61,
28,
8,
32,
73,
-7,
40,
29,
39,
34,
71,
17,
17,
10,
-7,
-6,
16,
-8,
6,
45,
33,
63,
16,
-16,
-25,
-21,
18,
28,
-5,
-9,
15,
13,
16,
22,
19,
-10,
-10,
-30,
33,
38,
-36,
-36,
-50,
-2,
46,
4,
74,
12,
-24,
7,
-19,
20,
-55,
-19,
-15,
-33,
-41,
-7,
-7,
-24,
-19,
-36,
64,
-51,
26,
28,
-22,
-16,
-22,
35,
13,
34,
-12,
-16,
-10,
-13,
0,
14,
39,
-60,
6,
-83,
-10,
11,
-23,
-36,
-16,
4,
37,
-45,
23,
33,
-29,
29,
-6,
-14,
-59,
-25,
-4,
81,
-30,
20,
41,
-25,
-23,
48,
-24,
-27,
-7,
0,
4,
-9,
12,
33,
43,
-13,
-37,
1,
28,
5,
-50,
-13,
6,
-2,
-9,
30,
8,
-29,
-6,
-29,
-11,
60,
26,
7,
-24,
42,
24,
-42,
-33,
-110,
-38,
5,
-74,
13,
-44,
6,
29,
8,
4,
28,
-11,
-3,
26,
17,
32,
65,
-39,
-55,
-1,
15,
19,
-26,
1,
64,
-18,
15,
63,
13,
33,
55,
-22,
-40,
12,
12,
-12,
-8,
-28,
-21,
-12,
-54,
-4,
-7,
3,
-25,
-34,
28,
-38,
33,
12,
7,
-4,
44,
-62,
21,
-20,
27,
-1,
20,
-28,
2,
30,
42,
-24,
25,
11,
-15,
28,
27,
26,
-3,
-18,
67,
-36,
-14,
13,
4,
-70,
-34,
26,
59,
-25,
29,
35,
10,
51,
0,
68,
-36,
-64,
-49,
15,
53,
-56,
1,
67,
83,
-10,
-19,
0,
40,
-42,
11,
-61,
13,
26,
-34,
34,
22,
-81,
18,
11,
-10,
-12,
16,
42,
10,
-12,
-12,
4,
16,
11,
-40,
-4,
-23,
29,
29,
8,
-16,
-24,
-50,
28,
10,
74,
-1,
41,
-34,
-13,
-33,
44,
-57,
-89,
-13,
-25,
-18,
-18,
21,
-19,
-7,
-31,
-7,
-45,
9,
-86,
43,
5,
-6,
-17,
25,
1,
1,
-43,
0,
42,
23,
12,
8,
12,
4,
2,
-22,
-17,
9,
-27,
10,
5,
-17,
37,
-10,
54,
13,
-37,
6,
8,
-31,
31,
-27,
-66,
31,
-8,
38,
25,
33,
1,
12,
11,
-22,
-22,
-61,
0,
47,
-11,
14,
9,
8,
-27,
5,
-10,
-84,
-12,
7,
30,
7,
1,
-19,
-14,
-23,
22,
-3,
-21,
3,
-39,
-37,
24,
3,
9,
10,
8,
22,
-5,
19,
53,
-7,
-28,
-25,
-34,
-4,
27,
28,
33,
35,
55,
-8,
44,
0,
-19,
-65,
-48,
31,
-38,
42,
63,
-21,
-40,
32,
-23,
-79,
-5,
-25,
-3,
0,
21,
-20,
14,
-11,
9,
-57,
-1,
-22,
69,
-8,
0,
30,
72,
-24,
-51,
0,
29,
-5,
-43,
25,
-12,
2,
16,
41,
-26,
-55,
12,
3,
-26,
-1,
-2,
-23,
24,
4,
37,
-38,
-15,
-9,
-1,
-2,
-25,
63,
23,
-13,
55,
36,
-56,
7,
22,
-44,
-9,
28,
10,
-4,
-2,
28,
-12,
-44,
8,
-12,
-26,
-58,
-13,
11,
36,
37,
10,
0,
14,
40,
12,
-38,
-16,
-23,
-12,
29,
62,
49,
-64,
-28,
39,
32
] |
ORDER
On July 31, 2014, counsel for Appellant filed with this Court a Petition for Rehearing in the above-entitled matter. Appellee’s objection to the rehearing request was filed on August 4, 2014. The court having considered the petition and the objection,
IT IS ORDERED that the Petition for Rehearing is GRANTED.
IT IS FURTHER ORDERED that this Court’s July 22, 2014 Opinion in DA 13-0081, State of Montana v. Edward Harold Ghostbear 2014 MT 192, is hereby WITHDRAWN and a revised Opinion is issued this date. [Publishers Note: The revised Opinion is cited at 376 Mont. 500].
The Clerk is directed to mail a true copy hereof to all counsel of record.
DATED this 23rd day of October, 2014.
IS/ CHIEF JUSTICE McGRATH
/S/JUSTICE WHEAT
/S/JUSTICE COTTER
/S/JUSTICE BAKER
/S/ JUSTICE McKINNQN
/S/JUSTICE RICE
|
[
8,
-33,
1,
9,
41,
-45,
34,
-7,
-54,
32,
39,
-27,
21,
-9,
21,
-7,
11,
1,
18,
-46,
5,
-7,
-1,
7,
26,
-9,
0,
-20,
4,
-11,
41,
-22,
-3,
-52,
26,
-21,
-25,
52,
33,
1,
86,
17,
5,
-9,
3,
-89,
-12,
24,
-26,
-13,
32,
-27,
-42,
12,
-47,
-54,
-12,
-43,
-36,
47,
35,
37,
31,
46,
24,
8,
-16,
10,
4,
43,
-4,
-22,
-27,
7,
-52,
-18,
-58,
-45,
-23,
26,
-15,
3,
16,
-4,
36,
8,
35,
-27,
0,
64,
-19,
-26,
-31,
-7,
-3,
12,
6,
-85,
37,
-26,
-21,
-60,
-29,
-8,
31,
-55,
-101,
47,
36,
7,
47,
-3,
-59,
-46,
-8,
0,
-61,
48,
29,
-48,
-24,
48,
-16,
32,
-66,
-80,
49,
28,
29,
19,
-42,
36,
20,
-22,
21,
25,
41,
-61,
-72,
-41,
-4,
-24,
31,
-11,
12,
6,
-17,
1,
-26,
29,
50,
48,
75,
71,
0,
15,
10,
-54,
54,
-21,
28,
36,
-78,
-10,
0,
69,
20,
-36,
-48,
-46,
-13,
12,
-3,
53,
-9,
-13,
-43,
4,
34,
18,
8,
12,
53,
-17,
14,
40,
-12,
-21,
5,
-19,
-33,
-5,
71,
-43,
1,
1,
-22,
5,
-9,
10,
14,
6,
-18,
16,
-37,
-18,
62,
-63,
44,
21,
-3,
-3,
2,
5,
-14,
-6,
50,
-18,
-37,
10,
-1,
-33,
-3,
7,
-16,
-4,
108,
-11,
9,
-21,
-43,
-18,
6,
-43,
13,
-3,
-28,
-15,
60,
-7,
-32,
-60,
-20,
-45,
17,
25,
-29,
-19,
3,
-20,
47,
-23,
0,
32,
53,
-31,
41,
9,
-20,
-5,
-7,
-70,
53,
6,
-2,
3,
0,
-50,
47,
36,
0,
5,
47,
41,
-32,
2,
-17,
-39,
14,
-14,
0,
19,
-35,
36,
20,
43,
4,
-13,
21,
-20,
-16,
16,
-23,
6,
3,
7,
3,
-15,
-35,
-21,
66,
-24,
8,
-1,
-73,
15,
-8,
35,
37,
-14,
19,
86,
-7,
12,
12,
-51,
-5,
27,
51,
-45,
-17,
-3,
-13,
5,
-75,
-37,
70,
41,
-27,
-3,
26,
12,
7,
49,
40,
-4,
26,
-44,
-58,
6,
43,
-28,
14,
2,
-91,
18,
-9,
26,
-35,
21,
-63,
4,
1,
-25,
40,
23,
-57,
-53,
19,
18,
1,
-11,
-10,
-39,
4,
0,
24,
24,
-38,
-53,
-63,
-2,
26,
-47,
36,
12,
11,
15,
-36,
-3,
-4,
33,
-28,
-18,
17,
31,
0,
25,
30,
-59,
-29,
-21,
25,
41,
22,
7,
-7,
-32,
-20,
-2,
73,
24,
43,
54,
-4,
34,
-27,
10,
4,
55,
95,
56,
-85,
-30,
29,
2,
-31,
7,
6,
-9,
-13,
-38,
-25,
-6,
17,
-46,
47,
-4,
38,
39,
-46,
-2,
-49,
-8,
6,
-19,
-35,
-51,
-12,
60,
35,
-22,
-59,
-11,
10,
-42,
-23,
25,
28,
41,
-14,
35,
-45,
-72,
-49,
2,
40,
27,
-45,
-73,
-12,
45,
-14,
-1,
-12,
5,
33,
13,
40,
42,
-16,
-13,
-16,
37,
-30,
5,
-23,
5,
6,
-40,
8,
-43,
52,
15,
53,
25,
-18,
-31,
-24,
-13,
24,
6,
49,
38,
-37,
37,
-33,
-26,
5,
7,
55,
7,
10,
14,
30,
-16,
-24,
-8,
-44,
24,
23,
37,
18,
-77,
-17,
53,
43,
-57,
5,
29,
-41,
60,
40,
-62,
-19,
-22,
-19,
-16,
12,
-31,
4,
22,
7,
-47,
17,
26,
-4,
10,
20,
34,
25,
-1,
2,
-48,
25,
9,
-18,
48,
29,
-9,
60,
50,
-26,
-2,
-29,
-29,
37,
31,
13,
44,
44,
-3,
-29,
-24,
11,
43,
-30,
2,
-17,
25,
11,
26,
-24,
16,
38,
34,
-20,
-7,
-7,
48,
-21,
-19,
44,
27,
-17,
-60,
65,
-56,
-2,
32,
38,
-42,
-6,
-8,
-63,
40,
0,
-11,
-21,
38,
-3,
48,
-15,
13,
37,
-11,
2,
-20,
25,
20,
5,
44,
-18,
9,
-20,
20,
2,
-40,
58,
13,
-43,
-53,
19,
31,
4,
-70,
-32,
-7,
31,
62,
-23,
-41,
17,
-1,
41,
6,
-20,
-10,
29,
-37,
-2,
67,
20,
-53,
18,
17,
66,
63,
6,
-1,
39,
68,
-4,
0,
-26,
-15,
57,
-27,
0,
49,
46,
-50,
-56,
-46,
-10,
1,
-15,
-25,
6,
6,
68,
14,
-25,
19,
9,
-72,
0,
-3,
-9,
36,
7,
-30,
-22,
-24,
-2,
0,
60,
52,
-21,
26,
22,
-31,
-17,
-1,
2,
-16,
-31,
-11,
-30,
-1,
-15,
-5,
7,
1,
-40,
-32,
-46,
4,
-9,
-13,
-40,
5,
-11,
11,
-6,
-15,
-35,
-40,
2,
-36,
-1,
21,
-2,
78,
-41,
-17,
-1,
12,
-2,
22,
-21,
16,
-1,
34,
-34,
-24,
2,
53,
46,
14,
-15,
-61,
22,
24,
-27,
8,
59,
-1,
-30,
14,
14,
-44,
-58,
61,
-28,
57,
18,
30,
-17,
18,
116,
0,
55,
0,
17,
-42,
-10,
-44,
0,
68,
22,
6,
-16,
-15,
19,
-13,
24,
2,
49,
-1,
-3,
-18,
-87,
19,
22,
-37,
-21,
0,
-34,
-9,
-8,
-7,
25,
-45,
31,
-12,
19,
-6,
4,
34,
-7,
-21,
30,
61,
18,
-37,
-22,
33,
0,
26,
-41,
-8,
44,
-33,
61,
-66,
18,
-15,
-5,
-51,
24,
15,
13,
15,
-6,
-45,
-14,
5,
-56,
-1,
44,
-21,
-41,
-37,
-11,
-7,
17,
76,
26,
-6,
-16,
7,
24,
-35,
51,
-13,
-2,
-9,
5,
-14,
-40,
51,
-1,
28,
-3,
17,
-30,
-35,
-33,
61,
-15,
41,
29,
-17,
43,
-23,
63,
-32,
39,
26,
30,
-29,
1,
78,
-22,
-11,
11,
24,
40,
-71,
12,
17,
36,
-52,
-15,
-15,
-6,
-25,
16,
-45,
10,
-7,
-6,
81,
-2,
33,
-63,
-20,
-35,
-7,
-21,
-7,
-7,
10,
-2,
9,
-47,
6,
18,
29,
-4,
-22,
9,
-17,
36,
-16,
-38,
30,
71,
-19,
33,
21,
-1,
10,
-14,
1,
-71,
-8,
16,
-23,
23,
23,
-54,
-32,
50,
14,
-1,
17,
9,
5,
-30,
-13,
-19,
46,
14,
18,
-36,
-56,
-7,
-30,
25,
7,
29,
36,
40,
9,
22,
19,
-18,
6,
7,
-44,
4,
28,
-6,
10,
-2,
-22,
11,
22,
-17,
29,
-23,
36,
3,
36,
-27,
-26,
15,
16,
-20,
-14,
-21,
-32,
4,
43,
-30,
-48,
-38,
-49,
19,
-21,
-42,
-83,
10,
-28,
-19,
17,
-25,
-15,
-61,
30,
-9,
-40,
16,
-19,
15,
-19,
-20,
-18,
35,
-59,
-37,
4,
-23,
-53,
17,
12,
30,
14,
-48,
-6,
-29,
1
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 In July 2011, Tash Broadwater was charged in Helena, Montana, with misdemeanor driving under the influence of alcohol (DUI) and disorderly conduct. He requested a municipal court jury trial. His scheduled trial was postponed based upon an older case being set for trial on the same day. Before the date of his rescheduled trial, Broadwater moved to dismiss the case for lack of a speedy trial. The municipal court granted the motion. The City of Helena appealed to the First Judicial District Court, Lewis and Clark County, and the District Court reversed the municipal court’s order. On remand, Broadwater was convicted in municipal court of DUI and acquitted of disorderly conduct. Broadwater appeals the District Court ruling reversing the municipal court’s dismissal of the charges. We reverse the District Court and remand for entry of judgment in favor of Broadwater.
ISSUE
¶2 A restatement of the issue is whether the City of Helena met its burden under § 46-13-401(2), MCA, to show good cause for not bringing Broadwater to trial within six months.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On July 28, 2011, Broadwater was charged with DUI and disorderly conduct. On August 1, he appeared in the Helena Municipal Court and entered a plea of not guilty. At the omnibus hearing held on September 7, 2011, Broadwater requested a jury trial. The court set the trial for January 10, 2012. At the jury confirmation hearing on December 28,2011, the municipal court notified Broadwater that his trial may not occur on January 10 because there were other cases on the court’s calendar set for that day and the court heard cases in chronological order. In early January, the court informed Broadwater that his trial was rescheduled for February 14,2012, because an older case had been set for trial on January 10. The February 14 trial date exceeded the statutory six-month period for conducting misdemeanor trials by 12 days. Section 46-13-401(2), MCA.
¶4 On January 31, 2012, Broadwater moved to have his case dismissed on the ground that the City failed to provide him with a speedy trial. On May 11, 2012, the municipal court granted Broadwater’s motion to dismiss the charges holding that a “crowded” court calendar constituted “institutional delay” and was not justification for failing to provide Broadwater with a timely trial.
¶5 On May 18,2012, the City of Helena filed a notice of appeal in the First Judicial District Court, arguing that the municipal court did not conduct a proper “speedy trial” analysis. The City noted that under § 46-13-401(2), MCA, and established case law, misdemeanor charges against a defendant should be dismissed if the defendant’s trial is not conducted within six months of the defendant’s plea. As a predicate to dismissal, it must be demonstrated that the defendant did not request a postponement of the trial, and that the State has not shown good cause for the delay. The City acknowledged that Broadwater did not request a postponement. It asserted, however, that the municipal court did not conduct a “good cause” analysis; rather, it summarily concluded that “good cause” did not exist.
¶6 On August 2, 2012, the District Court issued its Decision and Order in which it held that the City had shown good cause for the institutional delay. The District Court observed that based upon the municipal court’s practice of scheduling backlogged cases in chronological order, the City “had no opportunity to assure a trial within the six-month period.” In response to Broadwater’s claim of prejudice, the District Court determined that the delay of 12 or 13 days beyond the statutory six-month speedy trial requirement was unlikely to impair witness memories. The case was remanded to municipal court and on September 6,2012, Broadwater was found guilty of DUI and acquitted of disorderly conduct.
¶7 Broadwater appeals the District Court’s order reversing the municipal court’s dismissal of the charges.
STANDARD OF REVIEW
¶8 On appeal from a municipal court, the district court acts as an intermediate appellate court. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. City of Billings v. Nelson, 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039 (citing City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461). In its appellate capacity, the district court is confined to review of the record and questions of law. Section 3-6-110, MCA. It does not issue factual findings or make discretionary trial rulings. State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70.
¶9 Whether the right to a speedy trial has been violated is a question of law and we review the trial court’s legal conclusions to determine whether the court’s interpretation is correct. Luke, ¶ 10; City of Helena v. Roan, 2010 MT 29, ¶ 7, 355 Mont. 172, 226 P.3d 601 (internal citations omitted).
DISCUSSION
¶10 Did the City of Helena meet its burden under §46-13-401(2), MCA, to show good cause for not bringing Broadwater to trial within six months?
¶11 The applicable statute in this case, § 46-13-401(2), MCA, provides:
After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.
¶12 Broadwater maintains on appeal that the City was obligated by this statute to bring him to trial by February 2,2012, or provide “good cause” why it could not. Broadwater argues that the City merely asserted that the court’s docket was crowded but failed to show how or why the crowded docket made it impossible to conduct his trial within the six-month timeframe. He notes that while the court could not conduct his trial on January 10, 2012, because of a conflict, 23 additional days remained to try him before the February 2 speedy trial deadline. He further submits that a crowded docket, on its own, should not be considered “good cause” because that “would essentially render the [speedy trial] statute... meaningless.”
¶13 The State argues that the District Court correctly overturned the municipal court ruling because the municipal court did not apply the appropriate standard for reviewing misdemeanor speedy trial issues. The State asserts that the District Court properly interpreted and applied § 46-13-401(2), MCA, and urges us to look at the totality of the circumstances in determining whether legally sufficient reasons, i.e., “good cause,” were presented for delaying Broadwater’s trial.
¶14 While both parties present elements of a constitutional argument to the Court, we do not apply a constitutional analysis for speedy trial in misdemeanor cases because Montana’s statutory speedy-trial protections regarding misdemeanors are “more strict than [our] constitutional analysis.” State v. Case, 2013 MT 192, ¶¶ 5-6, 371 Mont. 58, 305 P.3d 812. “The statute itself serves as the sole standard of whether ‘good cause’ for the delay has been shown.” State v. Martz, 2008 MT 382, ¶ 30, 347 Mont. 47, 196 P.3d 1239.
¶15 In Roan, we defined “good cause” in the context of the misdemeanor speedy trial statute:
Good cause is generally defined as a ‘legally sufficient reason” and referred to as “the burden placed on a litigant (usu. by court rule or order) to show why a request should be granted or an action excused.” ... Good cause will necessarily depend upon the totality of the facts and circumstances of a particular case.
Roan, ¶ 13 (internal citations omitted).
¶16 Roan was cited for misdemeanor reckless driving. He entered a plea of not guilty and a bench trial was scheduled. Two weeks before the trial date, Roan requested a jury trial which was scheduled to take place just prior to the expiration of the six-month speedy trial deadline. The City of Helena subsequently requested a continuance because one of its two witnesses was unavailable due to a medical condition. The trial was rescheduled for a date beyond the speedy trial deadline. Roan filed a motion to dismiss and the City Court denied it. Roan appealed to the district court which affirmed the City Court. We also affirmed holding that witness unavailability in such circumstances constituted “good cause.” Roan, ¶¶ 2 and 4-6.
¶17 Conversely, in State v. Ronningen, 213 Mont. 358, 362, 691 P.2d 1348, 1350-51 (1984), we held that the State failed to demonstrate good cause when it took no action to prosecute the defendant when the presiding district court judge retired, and the docket was rescheduled. Similarly, in State v. Bertolino, 2003 MT 266, ¶¶ 12-16, 317 Mont. 453, 77 P.3d 543, we held the State failed to demonstrate good cause for delaying the defendant’s trial beyond the six-month time when it blamed the delay on the defendant’s failure to comply with court orders but failed to request sanctions for the defendant’s actions.
¶18 In the case before us, the City’s exclusive “good cause” argument is that the municipal court’s docket was crowded. While the City cites numerous statistics relating to the number of trials, jury confirmation and omnibus hearings the municipal court conducts per week, it does not assert that — in the face of a crowded docket — it made any attempts to try Broadwater in a timely manner. There is nothing in the record or any supporting affidavit that, upon notice on December 28,2011, of the possibility that Broadwater’s trial would not occur on January 10, the City raised the “speedy trial” issue with the court or actively sought an alternate trial date or trial judge so as to allow the trial to take place before February 2. Likewise, the record is devoid of any indication that, upon firm notice in early January that the trial would not take place, the City undertook any attempt to identify a date and time for the trial during the remaining 23 days. The City presents no evidence of any actions it took in an attempt to ensure that Broadwater’s trial would be held in a timely manner. As in Ronningen and Bertolino, the City’s failure to make some effort to schedule a timely trial results in the City’s failure to meet its burden of showing “good cause” for the delay.
¶19 We are not saying a crowded court docket will never constitute "good cause” under a speedy tried analysis in a misdemeanor case. Had the City established by affidavit or otherwise that it attempted to reschedule the trial in a timely manner within the days remaining before the speedy trial calendar expired but the docket made this an impossibility, the result here may well have been different. We fully recognize that the municipal court docket is crowded; unfortunately, this has been the norm for a long time. Were we to hold here that the assertion of a crowded docket, without more, is sufficient to establish good cause for delaying a misdemeanor trial beyond six months, the exception would swallow the rule and § 46-13-401(2), MCA, would be rendered meaningless. We therefore hold that in order to establish good cause for delaying a trial beyond six months due to a crowded docket, the City must demonstrate, by affidavit or otherwise, that it affirmatively attempted to provide the defendant with a trial within six months but that the status of the docket rendered it impossible to do so.
CONCLUSION
¶20 For the foregoing reasons, we reverse the District Court’s ruling reversing the order of the municipal court. We remand with instructions to reinstate the municipal court order dismissing the charges against Broadwater.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON and RICE concur.
|
[
17,
40,
-17,
-4,
-14,
-42,
2,
-28,
-1,
82,
7,
-29,
55,
-92,
83,
-65,
-44,
-31,
-12,
-15,
-45,
-2,
-10,
0,
3,
-15,
-56,
4,
-23,
-15,
32,
0,
3,
24,
42,
23,
9,
20,
14,
-27,
76,
27,
0,
16,
19,
-32,
-23,
21,
-23,
-39,
10,
-50,
-65,
2,
25,
0,
-40,
-11,
-33,
69,
1,
42,
-48,
-19,
30,
14,
38,
7,
-22,
-5,
7,
-9,
-16,
17,
26,
4,
30,
8,
13,
32,
-14,
29,
0,
3,
-11,
-19,
-27,
14,
11,
-28,
0,
-10,
-13,
-34,
-17,
16,
28,
-42,
13,
-28,
-73,
-1,
33,
37,
-42,
-51,
8,
11,
25,
17,
14,
47,
34,
3,
46,
9,
16,
43,
-13,
26,
-4,
12,
28,
36,
-16,
-52,
43,
33,
-5,
-5,
-57,
-42,
41,
-52,
29,
71,
17,
69,
-16,
23,
20,
3,
24,
36,
-28,
53,
16,
10,
14,
33,
-22,
-20,
26,
27,
16,
-42,
0,
-18,
-20,
19,
1,
-2,
22,
15,
21,
40,
-10,
5,
-25,
-43,
4,
-36,
20,
54,
18,
-10,
-63,
-51,
17,
-42,
6,
7,
-7,
-9,
16,
19,
17,
-25,
53,
-37,
-52,
2,
-10,
-23,
40,
-38,
61,
11,
-5,
13,
10,
34,
12,
19,
0,
32,
-23,
36,
58,
-9,
29,
-2,
-30,
-7,
6,
-51,
2,
-31,
-41,
-36,
-14,
-22,
33,
-32,
-40,
31,
-1,
40,
19,
3,
8,
19,
16,
18,
34,
-46,
-40,
-17,
17,
-8,
-8,
-10,
8,
20,
-5,
41,
-26,
-31,
-42,
22,
13,
-31,
29,
1,
16,
9,
44,
-12,
-42,
-8,
28,
24,
38,
-27,
-16,
-20,
63,
58,
32,
-8,
13,
12,
10,
-21,
-34,
-23,
-15,
-14,
32,
81,
1,
9,
16,
52,
-25,
-25,
6,
21,
-7,
-1,
-1,
-1,
-78,
62,
-23,
-30,
20,
32,
-25,
40,
34,
-19,
16,
64,
-18,
-10,
-15,
51,
-30,
-14,
20,
-20,
-58,
-9,
-4,
-9,
-19,
1,
7,
-56,
25,
-40,
21,
-44,
-45,
-24,
27,
-28,
-7,
-14,
-12,
17,
-37,
22,
15,
-34,
32,
-18,
-22,
8,
-4,
-26,
31,
-13,
-19,
71,
33,
-28,
-20,
-22,
-38,
21,
0,
14,
-17,
-34,
-58,
-53,
13,
-37,
-20,
13,
-23,
-7,
27,
13,
33,
5,
0,
-28,
-40,
-49,
22,
-25,
16,
2,
-15,
31,
-69,
38,
19,
-26,
8,
-32,
28,
-24,
17,
-46,
-19,
-43,
37,
47,
-24,
-34,
0,
-25,
-39,
-29,
8,
-10,
13,
11,
38,
-52,
-12,
-51,
24,
12,
-25,
-36,
-13,
-59,
59,
18,
-19,
-11,
-60,
-48,
-60,
0,
-4,
7,
23,
-16,
-10,
36,
20,
41,
12,
-4,
20,
46,
55,
-1,
-16,
73,
-23,
0,
6,
-10,
-52,
10,
-68,
6,
20,
-3,
38,
-21,
3,
53,
27,
31,
24,
5,
-26,
41,
7,
33,
-14,
-20,
6,
-32,
7,
-13,
14,
-1,
-53,
-3,
26,
22,
-18,
18,
36,
-49,
0,
51,
-21,
34,
-11,
-22,
13,
-1,
-46,
0,
19,
13,
-17,
-43,
19,
12,
-30,
38,
-42,
23,
-29,
-15,
0,
52,
-25,
-24,
-15,
-39,
-55,
5,
-15,
-60,
33,
13,
-55,
20,
22,
26,
13,
-40,
-19,
24,
20,
-38,
45,
-20,
58,
16,
1,
-50,
-64,
-6,
-20,
-34,
-30,
-30,
-19,
16,
-5,
-21,
-9,
28,
-35,
27,
51,
0,
-7,
41,
3,
-55,
13,
32,
-13,
-4,
18,
30,
-6,
54,
10,
-11,
8,
-9,
-57,
-6,
44,
-21,
26,
58,
-18,
5,
-32,
39,
-48,
-81,
55,
-58,
10,
75,
-48,
-9,
-21,
4,
-10,
-22,
-12,
43,
-50,
70,
-18,
-10,
-25,
-15,
42,
-8,
-16,
-29,
-32,
27,
49,
37,
20,
-31,
51,
-10,
-10,
2,
42,
4,
-36,
34,
13,
28,
29,
-25,
-86,
42,
24,
21,
-25,
12,
3,
7,
-7,
-58,
5,
-37,
-44,
-36,
10,
42,
-38,
14,
0,
-8,
21,
-39,
-54,
-57,
-17,
-33,
0,
-30,
-45,
29,
-11,
-33,
-15,
55,
31,
-29,
12,
10,
-1,
16,
-49,
-16,
-23,
-3,
-29,
-50,
-31,
8,
2,
-43,
44,
22,
20,
23,
-25,
24,
7,
-12,
18,
25,
-17,
28,
22,
-35,
37,
21,
23,
-66,
6,
-17,
0,
-23,
-14,
-33,
26,
-52,
-13,
24,
-46,
48,
93,
-26,
23,
40,
-9,
33,
29,
30,
-10,
6,
-26,
-38,
-41,
16,
2,
-20,
-28,
50,
-1,
-11,
-13,
8,
-18,
35,
36,
-3,
3,
-55,
-29,
15,
-4,
14,
-12,
25,
-26,
58,
14,
-39,
-89,
37,
6,
15,
3,
1,
-17,
22,
0,
5,
-21,
-1,
-29,
0,
-12,
-5,
53,
17,
-14,
-14,
6,
-16,
-53,
-45,
8,
-18,
50,
-5,
-16,
73,
31,
5,
-59,
0,
40,
3,
48,
16,
1,
-34,
32,
24,
24,
30,
-12,
-24,
7,
-17,
-11,
53,
-3,
11,
-10,
-40,
11,
21,
-47,
-26,
15,
14,
20,
57,
-24,
32,
-19,
-46,
-13,
35,
-4,
6,
-22,
20,
-63,
-37,
-2,
-21,
26,
-10,
19,
-14,
56,
-7,
34,
-24,
-22,
48,
40,
38,
67,
-55,
10,
2,
-28,
-27,
24,
-46,
-1,
22,
17,
-1,
-29,
5,
54,
10,
-4,
1,
37,
-2,
-45,
0,
44,
13,
0,
-6,
-78,
8,
-42,
0,
5,
30,
55,
22,
25,
51,
26,
-8,
-50,
-34,
-36,
-6,
4,
-26,
-21,
27,
7,
-16,
25,
-13,
3,
3,
16,
-52,
-54,
-16,
-55,
-13,
32,
56,
-26,
10,
-6,
61,
-43,
-9,
71,
-41,
-2,
-12,
15,
-48,
-56,
0,
57,
-7,
-1,
10,
26,
-41,
-6,
61,
-31,
-8,
-12,
-108,
-11,
19,
9,
31,
-19,
-87,
-49,
-14,
-1,
44,
-7,
1,
-14,
-11,
43,
-35,
-83,
4,
44,
3,
-3,
63,
10,
71,
-39,
24,
-35,
-9,
3,
54,
-28,
15,
6,
0,
-47,
-14,
39,
14,
-17,
-44,
-55,
10,
-21,
26,
61,
36,
22,
-35,
-16,
4,
-47,
-20,
-9,
30,
30,
1,
11,
26,
60,
-39,
16,
60,
-9,
9,
29,
-20,
-19,
-27,
20,
11,
0,
-19,
-18,
55,
25,
13,
-6,
1,
5,
10,
-26,
33,
32,
-8,
2,
-20,
-40,
0,
-2,
21,
4,
-34,
6,
32,
-6,
38,
-54,
3,
-27,
9,
59,
60,
-43,
-13,
51,
-26,
7,
3,
53,
30,
0,
29,
-31,
-42,
-79,
0,
-45,
-46,
-8,
10,
-37,
82,
13,
2
] |
MR. JUSTICE STARK
delivered the opinion of the court.
The disposition of this case hereafter made renders it unnecessary to make more than a brief statement of the facts disclosed by the pleadings and testimony. Tracy E. Poor and Daniel H. Poor each owned a tract of land located in Toole comity. They had become indebted to divers persons and corporations, amongst them being the Emerson-Brantingham Implement Company, hereafter referred to as the implement company, and the Libby Lumber Company, hereafter referred to as the lumber company. Various of their creditors had obtained liens upon tbeir lands by mortgage or attachment. To enable them to pay off a portion of this indebtedness an agreement was entered into between Tracy E. and Daniel IT. Poor and their creditors, including the implement company and the lumber company, by which Tracy E. Poor was to obtain a farm loan on Ms land for the sum of $2,200 and Daniel H. Poor was to obtain a farm loan on Ms land for the sum of $2,500, which loans should each be secured by mortgages, the creditors agreeing to release their liens so as to make the farm loan mortgages a first lien upon the respective lands. Applications for the farm loans were made by the Poors, who executed notes for the above amounts, and gave mortgages to secure the same, which were duly recorded in order to further the negotiations.
It was agreed that, after the money had been received on these farm loans, it should be distributed amongst the creditors in proportions which had been stipulated for. In further aid of the agreement of the parties and to accomplish the desired result, Tracy E. and Daniel H. Poor executed their joint note to the implement company for the whole amount due it, and likewise executed their joint note to the lumber company for the amount of its claim, and as security for the payment of these notes executed separate mortgages on their respective lands to the implement company and the lumber company. Both of these notes and all of the mortgages were left with John W. Coburn, an attorney at Cut Bank, Montana, by whom it was agreed they were to be held until the money from the farm loans had been received, when Coburn was to apply upon these notes that part of the proceeds of the farm loans which each was entitled to, and thereafter cause the mortgages to be recorded so that the implement company’s mortgage would be a lien upon the Tracy E'. Poor land immediately subsequent to the farm loan mortgage, and the lumber company mortgage was to be recorded so as to be a third lien on the Tracy E. Poor land; whereas the Daniel H. Poor mortgages were to be recorded so that the lumber company’s mortgage would be a lien on his land immediately subsequent to the farm loan mortgage, and the implement company's mortgage was to be recorded so that it would be a third lien thereon.
Through no fault of Daniel H. and Tracy E. Poor the negotiations for the farm loan were never completed, so that no money was ever received thereon. The implement company secured possession of the note and mortgages, which had been left with Coburn under the agreement above recited for its benefit, and assigned the same to the plaintiff herein, who commenced this suit to foreclose the mortgages. The lumber company never obtained actual possession of the note and mortgages, which had been executed in its favor and deposited with Coburn as above set forth.
The complaint in the action is in the ordinary form used in foreclosure proceedings, and alleges that the note and mortgages above referred to were executed and delivered to the implement company, and by it assigned to the plaintiff. The defendants, Tracy E. Poor and Walburga G. Poor, his wife, made no appearance in the action, and their default was duly entered. The other defendants filed separate answers, in which the circumstances surrounding the execution of the note and mortgages to the plaintiff’s assignor and the delivery of the same to Coburn are set out in detail, but, aside from a formal denial of the execution of the same, presented to the court no question for determination, except whether the note and mortgages mentioned in the complaint had been delivered.
The case was tried to the court without a jury. At the conclusion of the testimony the court found as a matter of fact that the note and mortgages executed by Tracy E. and Daniel H. Poor to the implement company were delivered, and likewise found that the note and mortgages executed by these parties to the lumber company were also delivered, and also found that it was agreed between the parties that the mortgages were to have been recorded so as to establish their priorities in the order which has been hereinabove indicated; and found all the facts generally in favor of the plaintiff. In the conclusions of law and in the decree entered in accordance therewith, the court directed that the Daniel II. Poor lands should be sold subject to the amount due, if any, on the mortgage to the lumber company.
The court’s finding of fact No. 27, which is incorporated in the decree, is as follows: “That no evidence being given at the trial as to the amount of said mortgages to said lumber company, or the amount now due, if anything, thereon, the court makes no findings with reference thereto, and expressly reserves the right to hear evidence, permit further pleadings, and make additional findings, and render such decree or judgment with reference to the liens of defendants, Libby Lumber Company and Libby Yards Company, as is fair and equitable. ’ ’
The decree in the action was entered on September 22, 1922. The plaintiff has appealed ‘ ‘ from that part of the judgment made and given in favor of plaintiffs and against said defendants * * * on September 22, 1922, in which it is ordered and adjudged that the following described land [here describing the Daniel IT. Poor land] ® * * be sold by the sheriff of said county of Toole, subject to the amount then due defendant Libby Lumber Company under its mortgage, # # * and said plaintiff appeals from so much of said judgment as finds, concludes or adjudges that said defendant Libby Liimber Company had or has any mortgage on said land,” i. e., it is an appeal from a part of the judgment. The statute does not permit such an appeal to be taken.
Section 9731, Eevised Codes of 1921, provides that “An appeal may be taken to the Supreme Court from the district court in the following eases: (1) From a final judgment entered in an action or special proceedings commenced in a district court, or brought into district court from another court.”
In Barkley v. Logan, 2 Mont. 296, and Plaisted v. Nowlan, 2 Mont. 359, this court held that an appeal will not lie from part of a judgment, under a statute which was identical with subdivision 1 of section 9731, supra. Tbe second of tbe above cases Avas decided at the January term, 1876. At the session of the legislative assembly in 1877 the above-mentioned section AA'as amended so as to read: “From a final judgment, or any part thereof, entered in an action. * * * ” (Sec. 431, p. 157, LaAvs 1877.)
When the Codes were adopted in 1895, the words “or any part thereof’’ (see. 1722, Code Civ. Proc. 1895) Avere omitted from this section, and, as so amended, the section was carried down through the Revised Codes of 1907 (sec. 7098, Rev. Codes 1907), and into the Revised Codes of 1921, without change.
In the case of Largey v. Sedman, 3 Mont. 472, the notice of appeal Avas from “the whole of said judgment against appellant for costs of suit, and from the whole of said " * * decree affecting the interest of appellant in and to said property.” This Avas an appeal taken in a mortgage foreclosure case on behalf of the only party appearing and defending therein, and the court held that this was equivalent to an appeal from the AAdiole of the judgment, and therefore did not come within the rule laid down in the Barkley and Plaisted Cases above referred to.
In Bitter Root Irr. Co. v. Cooney, 67 Mont. 436, 218 Pac. 945, which was an appeal from an order creating an irrigation district, by one of the persons whose lands were sought to be embraced therein, a motion to dismiss the appeal on the ground that it was from a portion of the judgment instead of from the whole thereof, was denied. The court, after referring to the statute and cases above cited, held that the facts took it out of the operation of the rule laid down in Barkley v. Logan and Plaisted v. Nowlan, supra, and brought it Avithin the rule announced in Largey v. Sedman, supra. Speaking of the position of the appellant Cooney and the issue raised on the appeal, the court held that “it was in no way dependent upon the determination of any isssue betAA’een the petitioners and any other person whose land Avas sought to be included in the district. In all essential particular’s it was the same as though it were an independent proceeding between petitioners and the objector,” and therefore that the appeal was equivalent to and was in fact an appeal from the whole of the judgment, so far as the parties to that appeal were concerned.
The reasonableness of the rule which forbids an appeal from a part only of a judgment is well illustrated in the case now under consideration. The findings and judgment as to the plaintiff’s note and mortgages are not subject to review in this proceeding, because no appeal has been taken therefrom. If plaintiff’s position as to the note and mortgages of the lumber company should be sustained without reference to the condition of its note and mortgages, the result of this appeal would be to sustain the plaintiff’s note and mortgages, and defeat the lumber company’s note and mortgages, although it is apparent from the record that all were given at the same time, under identical conditions, and with a like object in view.
Again, the court’s finding No. 27 above quoted, which is ■ incorporated in the decree, is not attacked or made the subject of review under the plaintiff’s notice of appeal, so that, whether authorized or not, it remains operative whatever the result of this appeal may be. If upon the question now presented this court should sustain plaintiff’s contention, it would have to order the decree of the lower court modified so as to direct a sale of the Daniel H. Poor land freed from the lumber company’s mortgage, so far as the plaintiff is concerned. If, in the meantime, the lower court has exercised, or shall in the future exercise, the right, which it reserved by finding No. 27, to permit further pleadings to be filed, allow further evidence to be introduced, and has made or shall make an additional decree in the ease wherein a sale of the Daniel H. Poor land under the lumber company’s mortgage is ordered freed from the lien of plaintiff’s mortgage, so far as the lumber company’s mortgage is concerned, we would have presented the anomalous situation of the same court in the same action making two orders of sale of the same property, under conditions diametrically opposed to each other. The law undertakes to prevent such a condition arising as the result of the determination of an appeal to this court.
Rehearing denied December 3, 1923.
"Without an appeal from the whole judgment and having the eutire record before it for review, the court cannot comply with section 8805, Revised Codes of 1921, which provides that "In equity cases, # " * the supreme court shall review all questions of fact arising upon the evidence presented in the record, * * * and determine the same, as well as questions of law. i:= * * ”
The reason for the rule is well indicated in Barkley v. Logan, supra, in these words: “When an appeal is taken from a judgment, it must be from the whole of it. The statute does not authorize the taking of a judgment into an appellate court for review by piecemeal. The appeal must bring the whole judgment before the appellate court. This court cannot reverse or affirm the fragment of a judgment. Jurisdiction for this purpose has not been conferred. If the whole decree is not before this court, how can it know the effect of its action in reversing or affirming a portion of it upon the remainder, over which this court has no jurisdiction, because there is no appeal therefrom?”
Since the attempted appeal herein is not authorized by the statute, it is dismissed.
Dismissed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
[
28,
35,
24,
-12,
-5,
-5,
16,
-8,
14,
19,
-8,
-1,
15,
49,
48,
-23,
-31,
-50,
-14,
43,
5,
-46,
-28,
-5,
-10,
-27,
-31,
-2,
-3,
68,
-14,
0,
-17,
26,
-20,
2,
-36,
-10,
14,
-18,
31,
-7,
-9,
2,
22,
8,
21,
-65,
21,
-6,
48,
-46,
37,
11,
1,
22,
-6,
-18,
-51,
15,
68,
-66,
46,
15,
34,
-22,
-20,
12,
43,
10,
0,
3,
2,
-21,
65,
-14,
31,
-23,
-35,
11,
-35,
-23,
42,
19,
-31,
-13,
-33,
-37,
-18,
49,
-60,
-23,
32,
25,
20,
11,
15,
20,
-74,
21,
17,
-33,
-22,
19,
12,
-61,
4,
14,
14,
10,
24,
28,
-5,
27,
-29,
8,
-8,
43,
7,
19,
-47,
26,
-40,
-34,
-36,
0,
-2,
14,
0,
-4,
29,
4,
-7,
31,
4,
18,
-31,
3,
-21,
-10,
56,
-6,
-34,
-31,
-13,
0,
7,
-23,
-4,
-41,
8,
-5,
-15,
14,
68,
-34,
28,
-15,
16,
-56,
45,
-20,
21,
14,
-17,
65,
14,
3,
-29,
24,
32,
11,
-63,
-1,
35,
-11,
-8,
-36,
27,
7,
-22,
-2,
-12,
-30,
11,
50,
49,
8,
13,
-5,
12,
-4,
-11,
12,
-47,
-45,
7,
-34,
-13,
12,
36,
11,
21,
25,
34,
12,
1,
-7,
4,
23,
22,
8,
-17,
-7,
-29,
54,
-30,
-38,
30,
-30,
61,
21,
-50,
-53,
-31,
-41,
38,
56,
1,
-21,
-74,
-3,
4,
5,
16,
-8,
-40,
-56,
-26,
-32,
-19,
-74,
-37,
-15,
3,
51,
-7,
-12,
32,
-18,
-66,
12,
-5,
30,
9,
13,
21,
14,
-25,
-67,
-11,
16,
-36,
-26,
56,
13,
-12,
-17,
9,
22,
0,
-2,
28,
20,
-41,
-31,
-10,
-9,
-15,
0,
8,
8,
-42,
0,
0,
14,
16,
0,
-77,
-3,
48,
-61,
35,
-8,
18,
11,
6,
-41,
9,
27,
-35,
-20,
-32,
-30,
32,
25,
-36,
-12,
-18,
-28,
-21,
0,
-25,
-64,
2,
7,
-15,
1,
19,
14,
2,
23,
-2,
-7,
13,
24,
48,
-52,
-18,
39,
-6,
-29,
4,
47,
23,
-7,
47,
6,
10,
-15,
-1,
15,
28,
0,
16,
11,
-7,
-18,
-26,
35,
28,
59,
21,
46,
0,
10,
22,
10,
-29,
-35,
42,
-20,
-13,
6,
-8,
1,
-12,
-37,
-35,
4,
44,
24,
45,
-4,
13,
-4,
-19,
15,
-37,
-7,
32,
52,
69,
24,
3,
34,
34,
-34,
-20,
-16,
-33,
-31,
8,
45,
8,
-45,
53,
-51,
-12,
-32,
-29,
39,
10,
-22,
-18,
-10,
-11,
-42,
-28,
-66,
-31,
-6,
-15,
-21,
-28,
8,
7,
-11,
-9,
22,
8,
-22,
37,
-13,
26,
-48,
30,
20,
-49,
11,
-29,
41,
-33,
1,
39,
16,
-29,
50,
-6,
30,
-17,
31,
-47,
-22,
42,
-1,
-10,
1,
76,
-35,
12,
-23,
-20,
32,
40,
13,
43,
-59,
41,
-25,
26,
-36,
5,
-37,
13,
25,
4,
-44,
20,
19,
-39,
39,
72,
9,
34,
17,
-5,
-24,
-64,
13,
-9,
0,
8,
29,
-34,
0,
-48,
-3,
-16,
-20,
48,
12,
-6,
-41,
-37,
-51,
26,
-31,
34,
-15,
-4,
-23,
11,
-23,
-45,
-39,
-1,
5,
-35,
59,
63,
-36,
30,
15,
-43,
44,
-18,
-2,
34,
84,
41,
8,
-44,
15,
-1,
-14,
-39,
37,
65,
-11,
-20,
72,
-16,
-32,
-13,
35,
27,
27,
-32,
-40,
-46,
-12,
17,
-10,
-59,
13,
40,
-52,
0,
9,
-9,
-35,
16,
22,
17,
14,
-42,
6,
6,
23,
32,
10,
-31,
-41,
47,
-19,
0,
-3,
12,
-11,
6,
-4,
0,
29,
4,
-19,
-30,
-3,
-4,
-14,
-34,
-3,
-28,
-57,
-47,
4,
30,
28,
-16,
36,
-2,
-13,
13,
-11,
-90,
-26,
5,
8,
-2,
35,
-66,
11,
-8,
0,
-17,
-16,
7,
-9,
26,
29,
-11,
2,
52,
12,
-2,
13,
8,
-3,
3,
-10,
26,
21,
-10,
-39,
-3,
-17,
-39,
6,
-9,
46,
-18,
-14,
-5,
19,
-52,
16,
44,
7,
-33,
-28,
-14,
-22,
-3,
-38,
9,
-5,
-14,
-5,
28,
-19,
5,
40,
35,
-52,
2,
26,
53,
7,
-11,
-24,
46,
6,
-6,
93,
0,
11,
36,
31,
16,
25,
83,
-21,
3,
6,
19,
15,
8,
17,
32,
7,
-4,
-3,
-7,
28,
-52,
0,
43,
22,
-27,
16,
36,
46,
-10,
31,
-19,
-34,
51,
18,
-71,
3,
82,
17,
5,
51,
-12,
34,
-93,
0,
16,
9,
34,
18,
-20,
11,
-46,
13,
-16,
-14,
-44,
-40,
-23,
-49,
-31,
1,
9,
-59,
2,
-14,
-29,
58,
-34,
48,
-21,
44,
24,
12,
-6,
0,
-11,
-18,
18,
67,
20,
54,
-78,
0,
8,
9,
11,
-26,
17,
-8,
-6,
0,
-30,
-43,
-26,
46,
-63,
-17,
53,
-18,
-1,
1,
37,
-7,
-6,
-26,
-4,
-47,
25,
18,
-102,
7,
26,
-8,
7,
32,
41,
35,
13,
-53,
-43,
-50,
-40,
-38,
34,
39,
35,
51,
4,
20,
6,
-19,
-31,
21,
0,
19,
-44,
-10,
-50,
0,
4,
-10,
33,
42,
8,
0,
23,
33,
-29,
-7,
17,
-2,
-5,
-7,
-17,
8,
0,
32,
-10,
-18,
11,
-18,
2,
69,
-33,
-12,
-26,
25,
48,
-19,
-28,
18,
15,
-2,
39,
17,
-15,
0,
-11,
-36,
-30,
-31,
40,
14,
-33,
33,
9,
-40,
8,
-26,
13,
0,
-24,
-17,
52,
22,
0,
23,
15,
0,
-22,
45,
5,
-29,
22,
-57,
27,
26,
-36,
30,
13,
17,
-41,
-26,
11,
-16,
45,
22,
7,
24,
2,
37,
-18,
22,
12,
-18,
48,
26,
0,
-42,
-45,
-13,
-13,
0,
-8,
-49,
34,
-16,
-4,
24,
0,
34,
33,
-33,
35,
58,
-1,
-7,
3,
-29,
-16,
-19,
-106,
63,
-21,
-21,
22,
17,
-1,
0,
-30,
9,
27,
-28,
2,
10,
-24,
-1,
-46,
-6,
21,
-9,
-22,
-11,
1,
3,
18,
-16,
34,
-5,
-5,
-16,
-1,
-16,
-1,
-43,
-16,
7,
49,
21,
5,
62,
35,
28,
-53,
21,
45,
7,
-60,
30,
23,
-30,
-38,
15,
17,
-13,
-30,
-29,
9,
1,
20,
-39,
8,
22,
31,
0,
-24,
-34,
-3,
23,
-19,
42,
-10,
-73,
1,
-15,
-32,
-17,
-8,
24,
4,
3,
5,
35,
-5,
12,
21,
-29,
36,
-22,
-33,
23,
12,
-28,
-14,
29,
21,
-38,
-62,
-26,
-12,
-20,
10,
0,
-29,
-17,
-18,
33,
4,
-33,
-3,
40
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
C. C. Hopkins was convicted of the crime of robbery, and appealed from the judgment and from an order denying him a new trial.
The several specifications of error relied upon relate to the admission of evidence and will be grouped and considered under two general heads, but to illustrate the rulings of which complaint is made a brief statement of the case is necessary.
In November, 1920, the defendant Hopkins was sheriff of Musselshell county; Frank Wilson was chief of police of the city of Eoundup, and George Bennett was a pool-hall proprietor in Eoundup, residing at the Grand Hotel in that city.
James P. Barroeh, the prosecuting witness in this case, tes tified that he lived in Lewistown; that about November 16, 1920, Bennett came to Lewistown and there contracted to purchase from the witness a quantity of intoxicating liquor; that, on November 26, the witness, with one Ed. Harrold, transported twenty cases of whisky, of the value of $1,600, from Lewistown to Eoundup, to be delivered to Bennett pursuant to the agreement; that they arrived at Eoundup about 10 o’clock on the evening of the 26th, saw Bennett at his pool-hall, and arranged to make delivery to him at the hotel a short time later; that about three-quarters of an hour later they returned to the pool-hall, and from there Bennett accompanied them to the hotel; that they stopped their automobile in the alley directly back of the hotel; that Bennett entered the building by a rear entrance to ascertain whether it was safe to make delivery at that time; that; as Bennett returned to the alley, Hopkins and Wilson appeared upon the scene, each armed with a gun; that, at the command of Hopkins, the witness and Harrold surrendered, and, under the direction of Wilson and in company with him and Bennett, they drove their car with its cargo of liquor to the city jail, where they found Hopkins awaiting them; that the witness and Harrold were locked in a cell, while Hopkins and Wilson stored the liquor in the jail; that they were then released, permitted to take their car, and were ordered to leave town at once. Further evidence was introduced to show that a warrant was not issued for the arrest of Barroeh, and that the defendant did not make return of any liquor seized by him at or near that time. Over the objections of defendant, Barroeh was permitted to give, somewhat in detail, the conversations which he claims to have had with Bennett in Lewistown and in Eoundup, not in the presence of defendant, and the rulings admitting this evidence constitute the assigned errors of the first group.
For the declared purpose of showing that the defendant was not acting in the discharge of his official duties as sheriff when he took the liquor from Barroch in the manner described by that witness, or, in other" words, to prove the felonious intent charged in the information, the state was permitted to introduce the testimony of one George E. Heath, of Zortman, Montana, to the effect that he, with one Frank Pryble, transported ten cases of whisky from Zortman to Roundup early in November, 1920; that about November 9 he contracted to sell the liquor to Bennett; that while in the act of delivering it, and while in the alley back of the Grand Hotel on the evening of November 9, Hopkins and Wilson appeared, each armed with a gun, and compelled witness and Pryble to surrender and to drive their ear with its cargo of liquor to the city jail, where the witness and Pryble were locked in a cell while Hopkins and Wilson stored the liquor in the jail; that they were then released, and ordered to leave town at once. The records disclosed that a warrant for Heath’s arrest had not been issued, and that the defendant did not make return of any liquor seized by him at or near that time. It was admitted by the county attorney that the foregoing testimony given by Heath was the same as the testimony which Heath had given in the same court upon the trial of cause No. 347. In cause No. 347, Hopkins, Wilson and Bennett were charged jointly with the crime of grand larceny in taking the ten cases of liquor from Heath on November 9, 1920, and were tried upon the charge, and acquitted prior to the trial of this ease.
After defendant had introduced his oral testimony which amounted to a categorical denial of all of the testimony given by Barroch, his counsel offered in evidence the record in cause No. 347. The court refused to admit it generally, but admitted it for the sole purpose “of affecting the credibility of the witness Heath,” and instructed the jury accordingly.
In admitting the testimony of Heath, in refusing to admit the record in cause No. 347 without qualifications, and in limiting the purpose for which the record might be considered by the jury, it is contended the court erred, and these alleged errors are comprehended in the second group of assignments.
1. It is an elementary general rule that a defendant in a 'criminal case cannot be bound by conversations between third parties not in his presence, hence the rulings permitting Barroch to testify to the conversations- he had with Bennett were prima facie erroneous. An exception to the general rule, as well established as the rule itself, permits evidence of the acts and declarations of a co-conspirator done or made in furtherance of a common design to be admitted against all the other parties to the conspiracy, whether the acts or declarations were done or made in their presence or with their knowledge, provided only that they were done or made during the life of the conspiracy (State v. Allen, 34 Mont. 403, 87 Pac. 177), but the evidence of such acts or declarations is admissible only after proof of the existence of the conspiracy (subd. 6, see. 10531, and sec. 11977, Rev. Codes 1921; State v. Dotson, 26 Mont. 305, 67 Pac. 938).
There is not any pretense here that the existence of a conspiracy between Hopkins, Wilson and Bennett had been shown at the time the objectionable evidence was admitted; and the only evidence introduced at any time tending to prove the existence of such a conspiracy is that Bennett contracted to purchase the liquor from Barroch; that he was present when Hopkins and Wilson took the liquor from Barroch; that he accompanied Wilson, Barroch and Harrold to the city jail and was present there when Barroch and Harrold were released from custody.
A conspiracy is constituted by an agreement, and is a part- nership in criminal purposes. (United States v. Kissel, 218 U. S. 601, 54 L. Ed. 1168, 31 Sup. Ct. Rep. 124 [see, also, Rose’s U. S. Notes].) While it is not essential that the agreement between the parties should be formal, it is necessary that their minds meet understandingly, so as to bring about an intelligent and deliberate agreement to do the acts. (12 C. J. 544.)
Of course, it is not indispensable that a conspiracy be proved by direct evidence. Circumstantial evidence is legal evidence, and, if sufficient, will establish the existence of a conspiracy, but we conclude that the few isolated circumstances detailed above do not furnish the required quantum of proof, and that the court erred in admitting the evidence under consideration.
2. It is the general rule that, upon the trial of one ac- cused of crime, evidence of a distinct and independent offense is not admissible. To enlarge the scope of the inquiry beyond the facts pertinent to the offense for which the accused is being tried would ordinarily subject him to the danger of surprise against which no possible foresight might be able to prepare and no innocence defend. But if particular facts tend to establish an element of the offense for which he is being tried, they may be proved and the evidence is not the less relevant because it may disclose or tend to disclose that the accused had committed another crime. In the language of Justice Brewer “No man can by multiplying crimes diminish the volume of testimony against him.”
In order to make out the charge of robbery it was necessary for the state to prove that defendant acted with felonious 'intent in taking the liquor from Barroch, and, to establish that intent, the state offered the testimony of Heath. In harmony with the rule just stated, the state may introduce evidence of other acts similar to the one for which the accused is being tried, for the purpose of proving criminal intent. (State v. Newman, 34 Mont. 434, 87 Pac. 462; State v. Hill, 46 Mont. 24, 126 Pac. 41; State v. Pippi, 59 Mont. 116, 195 Pac. 556.)
The reason which underlies the rule admitting such evidence may be illustrated by reference to the state’s theory of this case, assuming the truth of the testimony given by the state’s witnesses, for the purpose of this illustration only. By virtue of defendant’s official position as sheriff, and in the regular discharge of his duties, he might have taken the liquor from Barroch in the manner described by that witness without committing any offense whatever; indeed, it was his duty to seize the liquor, and, if in his judgment it was reasonably necessary to make an exhibition of force to accomplish his purpose, he could not be subject to criticism upon that score. But, having seized the liquor, it was his duty to arrest Barroeh, even though he had no warrant, take him before the proper tribunal, and lodge complaint against him, and also make proper return- of the liquor so seized. (Sec. 9, Chap. 143, Laws 1917.) This cause of action arose, if at all, prior to the enactment of Chapter 9, Laws of Extraordinary Session of 1921, and the provisions of section 11070, Bevised Codes of 1921, are not invoked and could not be relied upon successfully in this instance. Now it might be possible that the failure of the defendant to detain Barroch, to make the required complaint against him, and to make return of the liquor seized, could result from mere inadvertence on the officer’s part; but, if it be shown that ten days previously he had pursued the same course of conduct with reference to his transaction with Heath, common sense applies the doctrine of logical inferences, and may eliminate entirely the element of inadvertence or innocent intent. Inadvertence would be an unusual and abnormal element which might perhaps be present in one instance, but the oftener similar instances occur with similar results the less likely is the abnormal element the true explanation of them. In short, since similar results do not usually occur through abnormal causes, the recurrence of similar results tends to negative accident nr inadvertence or other innocent mental state, and to establish a criminal intent. (1 Wigmore on Evidence, sec. 302.)
Under the rule just considered, the testimony of Heath was admitted properly.
But this evidence of the alleged offense committed on No- vember 9 was admitted solely for the purpose of tend ing to prove that defendant acted with a felonious intent in taking the liquor from Barroch on November 26. Defendant had been compelled to meet and rebut the same testimony given by Heath upon the trial of cause No. 347, and this he did successfully, with the result that the jury trying that cause pronounced him not guilty, and, when the record of that acquittal was introduced by defendant upon the trial of this cause, the court advised the jury that it could be considered only as reflecting upon the credibility of Heath; in other words, the court indicated that the jury might find that the testimony given by Heath upon the trial of this cause was true, notwithstanding the record of acquittal. The question then arises: What force or effect should have been given to the record in cause No. 347 when introduced upon the trial of this cause?
The dearth of authority upon the subject seems almost inexplicable. Mr. Freeman says: “Important as the subject would apparently appear to be, it is one which has not been thoroughly explained by the text-writers, and not frequently passed upon by the courts, considering the vast multitude of criminal cases and the various questions raised in that class of cases.” (163 Am. St. Rep. 20.)
The doctrine of res adjudicada as applied in civil cases is fairly well settled. It has its foundation in two fundamental maxims of the law: “A man shall not be twice vexed for one and the same cause” and “It is for the public good that there be an end to litigation.” (Broom’s Legal Maxims, 247-250.) Almost a century and a half ago the English House of Lords declared “that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or, as evidence, conclusive between the same parties upon the same matter, directly in question in another court.” (Duchess of Kingston’s Case, 20 How. St. Tr. 355), and the doctrine has been adhered to in this country ever since.
In Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685, the court stated the rule as follows: “It is irresistible that the judg ment of a court of competent jurisdiction is conclusive as evidence upon parties and privies in respect to every question directly involved in the issue and determined by the judgment. ’ ’
In Freeman on Judgments, section 318, it is said: “The principles applicable to judgments in criminal cases are, in general, identical, so far as the question of estoppel is involved, with the principles recognized in civil cases.”
In 2 Van Fleet’s Former Adjudication, section 628, the author says: “If there is a contest between the state and the defendant in a criminal case, over an issue, I know of no reason why it is not res judicata in another criminal case. ’ ’
In Commonwealth, v. Evans, 101 Mass. 25, the doctrine was applied to the fullest extent. Evans was first charged with assaulting Henry McKenzie with a knife, and was tried and convicted. Later McKenzie died as the result of the wound, and Evans was then charged with manslaughter, and upon the trial of that charge he sought to prove that he used the knife in necessary self-defense. In rebuttal the commonwealth introduced the record of his conviction in the assault case, and the trial court instructed the jury that the record was conclusive evidence that the use of the knife upon McKenzie was unjustifiable, and that the defense that the knife had been lawfully used by the defendant in self-defense had been determined by the judgment, and was not open to him. In reviewing that instruction, the supreme court said: “The only question is as to the effect of that judgment, as evidence, upon the issues of fact raised in the trial of this case for manslaughter. The court below ruled that it established conclusively that the assault was unjustifiable, and therefore disproved the position of the defendant in this ease, that the knife was used in self-defense. Upon general principles, the parties being the same, the former judgment must be held to have established all facts which were involved in the issue then tried, and essential to the judgment rendered upon it. The conviction for assault and battery therefore necessarily excludes all justification which could have been set up under the general issue of not guilty. The facts of the assault remain the same; and whatever would sustain the ground of self-defense, now relied on, would have been a complete defense to the former prosecution. The verdict and judgment in that ease were therefore rightly held to be a conclusive answer to the attempt at justification made in this ease.”
In People v. Frank, 28 Cal. 507, the defendant was convicted of passing a draft with a forged indorsement upon it, knowing that the indorsement was a forgery. To prove the felonious intent, the state was permitted to show that at about the same time the defendant had passed two other drafts, designated 3 and 9, with the same forged indorsement upon each of them. In offering this evidence, the prosecuting officer admitted that the defendant had been charged with forging the indorsement on draft 3, and with passing the draft, knowing that the' indorsement was a forgery, and had been tried upon the charge and acquitted. The supreme court held that the admission of the evidence did not do violence to the doctrine of res judicata under the peculiar circumstances there involved, but in the course of the opinion said: “The soundness of the doctrine to the effect that the judgment of a court of competent jurisdiction directly upon the point is as a plea at bar, or as evidence conclusive upon the same matter coming directly or incidentally in question in another action between the same parties, cannot be doubted. * # * In order to render the verdict and judgment of not guilty upon the draft offered in evidence conclusive upon the facts which the prosecution sought to prove for the purpose of showing guilty knowledge, it must appear with certainty from the evidence offered in support of the alleged estoppel that those facts were directly and necessarily found by the verdict in that case in favor of the defendant; or in other words, that the jury could not have found the verdict which they did without having passed directly upon the facts offered to be proved, and found them against the prosecution.” After enumerating the several propositions which were necessarily involved in the trial of the defendant for passing draft 3, the court continued: “Now if all these propositions were directly and necessarily decided in favor of the defendant by the verdict and judgment in question, then the district attorney was estopped from making the proof; or if either of them was so decided, as to such he was estopped, upon the principle that matters which have been once judicially determined cannot be again drawn into controversy as between the parties and privies to the determination,” and concluded: “The verdict cannot operate as an estoppel, except as to the allegation that the defendant forged the indorsement.”
In Bell v. State, 57 Md. 108, the defendant was convicted of passing an order for the payment of money on July 16, 1880, knowing it to be forged. Upon the trial the state offered evidence to prove that on July 17 defendant had passed a similar forged order. In defense the record was offered, which disclosed that the defendant had been charged with passing the order on July 17, and had been tried and acquitted. But counsel for defendant offered the record “for the purpose of affecting the weight and credibility of the evidence against the accused,” and it was admitted for that limited purpose only. Before the jury, however, counsel for defendant undertook to argue that the record was conclusive against the contention of the state, but were not permitted to continue to argue to that effect. In disposing of the contention made, the appellate court said: “At the time that record was offered, the counsel might, if they had thought proper, have offered it generally, or as conclusive evidence, that the appellant had not forged or uttered the cheek of July 17, and as an estoppel upon the state, and, if rejected by the court when thus offered, or admitted for the purpose only of affecting the weight and credibility of the evidence against him, the appellant might have then excepted to such ruling, and had it reviewed by this court. But it was not so offered. On the contrary, it was offered expressly on the terms and for the purpose which the court had stated it would be admissible for; that is, for the purpose of affecting the weight and credibility of the evidence against the accused. And even when the court interposed and stated the purposes for which alone the record had been admitted, the appellant might have excepted to the ruling, limiting the effect of the record to this particular purpose, if it had not been offered ‘under the permission of the court as stated in the first exception.’ (Sauerwein v. Jones, 7 G. & J. 341; Inloes v. American Exchange Bank, 11 Md. 185.) But he excepted, not to the limitation thus put upon the effect of the record as evidence, but to the court’s refusal to permit his counsel to argue that the record had a larger and broader effect, than that to which it had been limited by the court. The court has an undoubted right to state to the jury the legal effect of evidence which has been introduced and submitted to their consideration. (McHenry v. Marr & Emmart, 39 Md. 532, 533; Wheeler v. State, 42 Md. 570.) Not having excepted to the statement made by the court of the legal effect of the record, it became the law of the case. (Hogan v. Hendry, 18 Md. 128; Davis v. Patton, 19 Md. 128; Dent v. Hancock, 5 Gill (Md.), 127.) Being the law of the case, counsel were not at liberty to argue against it.”
In Mitchell v. State, 140 Ala. 118, 103 Am. St. Rep. 17, 37 South. 76, the defendant was convicted of arson, in burning a building belonging to Sue Harris. To prove the criminal intent in the commission of that offense, the state offered evidence tending to prove that about the same time and near the same place, the defendant had set fire to a building belonging to one Murphy. In defense the record was offered which disclosed that the defendant had been charged with burning the Murphy building, and had been tried and acquitted. The trial court refused to admit the record in evidence, and on appeal the supreme court said: “The evidence so offered was admissible under the doctrine of res adjudicada, whereof it has been well said: ‘A final judgment on the merits determining any issue of law or fact after a contest over it, forever sets at rest, and fixes it as a fact or as the law in any other litigation between the parties.’ (Yan Fleet’s Former Adjudication, 2 et seq.) * * * For the error in rejecting the offer above referred to, the judgment will be reversed, and the cause remanded.” The following cases, though not directly in point, illustrate the-same pi’ineiple: Commonwealths. Ellis, 160 Mass. 165, 35 N. E. 773; Coffey v. United States, 116 U. S. 436, 29 L. Ed. 684, 6 Sup. Ct. Rep. 437 [see, also, Rose’s U. S. Notes].
It is manifest that, if Heath told the truth, this defendant was guilty of the crime charged against him in cause No. 347, and the only possible explanation of the verdict “not guilty” returned in that cause is that the jury determined that Heath was not a credible witness. If then his story, as told upon the trial of cause No. 347, was false, it was equally false when repeated upon the trial of this cause, and the record of acquittal was a conclusive adjudication that defendant did not commit the criminal offense on November 9, and estopped the state, upon the trial of this cause, to say that Heath’s testimony tended to prove that defendant acted with criminal intent in taking the liquor from Barroch on November 26, if in fact he did take it.
In refusing to admit the record generally, and in limiting the purpose for which it was admitted, the trial court erred.
For the reasons given, the judgment and order are reversed, and the cause is remanded to the district court of Musselshell county for a new trial.
Reversed and remanded.
Me. Chief Justice Callaway and Associate Justices Coopee, Galen and Staek concur.
|
[
-31,
2,
102,
17,
-62,
-26,
-20,
16,
-47,
29,
22,
-20,
-3,
6,
11,
0,
-35,
-26,
48,
-19,
43,
-49,
1,
-9,
12,
-39,
-1,
27,
-35,
40,
45,
51,
31,
-3,
34,
64,
15,
0,
26,
-50,
-45,
4,
-49,
9,
20,
39,
18,
-55,
19,
-8,
-14,
-91,
30,
33,
-37,
13,
11,
-3,
26,
-18,
50,
-42,
-22,
-4,
-36,
-41,
2,
-32,
43,
-15,
-2,
-24,
-14,
-85,
10,
-31,
3,
-15,
-17,
-41,
-53,
5,
62,
-22,
-37,
-11,
-1,
-61,
33,
15,
25,
24,
25,
-47,
1,
5,
-1,
-49,
-50,
-2,
-61,
-56,
-42,
15,
24,
57,
-43,
2,
9,
31,
-29,
0,
75,
21,
-37,
-68,
-23,
-57,
-36,
35,
24,
55,
74,
-24,
-28,
-49,
6,
-22,
-18,
-7,
2,
17,
16,
38,
-70,
-27,
0,
-14,
-37,
43,
-1,
-20,
14,
-11,
4,
4,
-20,
59,
-25,
29,
-20,
11,
18,
34,
1,
-14,
0,
-11,
-30,
46,
-7,
-16,
25,
-42,
4,
16,
-10,
-51,
-17,
-26,
-23,
-2,
-13,
86,
68,
50,
-27,
-20,
-27,
-14,
-23,
11,
16,
-17,
10,
-23,
37,
52,
-30,
42,
-24,
38,
-35,
1,
-56,
-33,
-26,
-59,
16,
-25,
-15,
-2,
-9,
-25,
-30,
33,
9,
33,
51,
-29,
7,
-28,
1,
-9,
5,
-8,
-25,
-31,
-22,
12,
-30,
-7,
-34,
11,
-8,
-58,
-1,
-5,
-21,
16,
-34,
9,
-25,
20,
-24,
-29,
33,
-22,
-4,
11,
-47,
-27,
-51,
-46,
-9,
-12,
28,
-17,
-6,
27,
4,
-16,
34,
15,
-8,
33,
51,
-45,
-12,
25,
11,
26,
-24,
11,
-34,
20,
-22,
4,
12,
69,
33,
-43,
1,
44,
15,
-16,
-10,
86,
0,
19,
-23,
26,
46,
11,
89,
-14,
-39,
22,
14,
42,
28,
0,
-44,
49,
22,
6,
89,
66,
-53,
-10,
16,
43,
-14,
21,
-13,
8,
-19,
21,
-35,
-33,
70,
0,
-20,
-9,
79,
18,
7,
-11,
9,
-24,
-28,
9,
19,
18,
38,
-22,
20,
-8,
-9,
-27,
16,
16,
7,
-52,
-72,
5,
0,
55,
64,
32,
-36,
-14,
-8,
-57,
-43,
6,
-7,
-27,
-62,
-27,
-12,
-8,
27,
24,
5,
20,
-16,
-14,
-6,
-30,
74,
-8,
33,
72,
62,
8,
-6,
-37,
6,
3,
3,
-12,
24,
-48,
-6,
-11,
42,
13,
6,
44,
0,
-10,
0,
-41,
13,
53,
39,
-29,
-21,
12,
-3,
40,
0,
-8,
-70,
11,
-15,
0,
68,
-80,
-27,
17,
-10,
-20,
-16,
-13,
-63,
36,
27,
-47,
-53,
-31,
47,
31,
-13,
40,
-19,
-1,
-26,
-24,
0,
-2,
51,
-19,
17,
-36,
43,
28,
-16,
-42,
25,
-6,
26,
4,
-71,
-29,
27,
3,
-17,
10,
-2,
7,
7,
52,
1,
20,
14,
-21,
24,
40,
24,
0,
16,
9,
6,
74,
28,
-2,
1,
-59,
73,
7,
-17,
48,
-3,
9,
-29,
-50,
-18,
-16,
-4,
28,
38,
-43,
-48,
21,
9,
-27,
7,
9,
29,
45,
11,
70,
-2,
-37,
-11,
-60,
-9,
56,
37,
12,
12,
-19,
-18,
-15,
-31,
12,
-64,
-43,
-39,
-16,
0,
-13,
-12,
26,
18,
19,
9,
63,
8,
70,
25,
-54,
-12,
-48,
-8,
33,
-11,
7,
54,
34,
-18,
28,
-32,
-1,
-12,
-7,
29,
-55,
-20,
-10,
-41,
-18,
0,
9,
-3,
39,
55,
-35,
7,
5,
35,
15,
-71,
25,
-33,
12,
38,
28,
-29,
49,
9,
-47,
7,
-43,
-52,
14,
-17,
11,
20,
26,
-8,
15,
17,
-4,
26,
46,
29,
-9,
18,
57,
6,
10,
-10,
6,
-42,
-33,
31,
12,
46,
17,
-1,
21,
-4,
39,
44,
-10,
-40,
-9,
-4,
22,
-13,
23,
52,
-10,
-20,
-18,
1,
24,
16,
-33,
20,
90,
66,
-30,
-3,
29,
-55,
22,
26,
-23,
-31,
-1,
-15,
22,
-54,
-8,
-28,
-7,
-8,
30,
-21,
90,
4,
-57,
-61,
-11,
-11,
20,
-41,
7,
24,
25,
-41,
38,
-14,
31,
-75,
-17,
2,
40,
5,
16,
5,
33,
10,
39,
48,
-36,
-18,
-13,
-14,
24,
-15,
-33,
4,
-24,
-9,
12,
31,
27,
-55,
-10,
35,
-8,
12,
28,
4,
-2,
7,
-46,
27,
-25,
3,
-10,
-7,
7,
56,
-5,
32,
-11,
-19,
-16,
7,
-34,
-13,
-5,
-50,
72,
-4,
14,
11,
1,
-4,
36,
10,
-5,
-59,
-17,
9,
-56,
20,
-11,
22,
-5,
49,
-38,
-21,
-7,
-6,
-3,
-25,
-25,
14,
-10,
-31,
-12,
-33,
23,
-18,
0,
1,
-5,
18,
20,
20,
15,
11,
-49,
61,
-6,
-4,
31,
-1,
-41,
-93,
-20,
-2,
10,
-48,
-10,
14,
41,
10,
-30,
-20,
30,
0,
-4,
89,
-9,
16,
-26,
-2,
6,
45,
37,
-40,
-35,
0,
25,
57,
-47,
-67,
4,
-2,
26,
-8,
32,
-14,
-53,
17,
-4,
-51,
14,
-17,
2,
9,
35,
-69,
14,
-40,
-43,
3,
19,
-9,
43,
23,
1,
-20,
-29,
-13,
14,
-41,
-43,
4,
31,
-22,
33,
7,
-2,
30,
10,
50,
2,
17,
-21,
-9,
4,
-16,
-12,
20,
14,
2,
-28,
44,
-61,
-28,
-18,
-11,
-10,
26,
-6,
23,
-23,
8,
15,
-85,
-15,
-21,
-13,
-2,
27,
55,
-11,
-8,
-7,
12,
20,
36,
-4,
34,
55,
0,
-17,
-10,
-18,
-32,
0,
-21,
11,
-11,
-52,
-19,
-22,
16,
-56,
28,
29,
0,
12,
4,
-42,
-18,
19,
72,
-24,
-22,
60,
-40,
34,
28,
-23,
-76,
67,
15,
44,
66,
37,
-13,
-56,
32,
31,
66,
-65,
-58,
-36,
5,
1,
-18,
6,
16,
-3,
-11,
-48,
55,
-30,
36,
-48,
17,
-33,
-49,
36,
23,
-72,
15,
-14,
6,
19,
-2,
-14,
-35,
-1,
-6,
13,
-25,
-38,
94,
16,
21,
21,
7,
52,
26,
-3,
-11,
13,
19,
59,
-62,
67,
-6,
-25,
-44,
-4,
14,
-26,
-31,
-27,
-24,
-42,
0,
47,
-14,
-22,
-6,
-31,
-29,
45,
-19,
24,
-7,
17,
73,
-27,
-59,
-7,
-9,
29,
-58,
31,
-14,
2,
2,
17,
-7,
-18,
-29,
9,
13,
0,
39,
2,
60,
-11,
27,
17,
10,
-38,
-2,
-24,
3,
21,
5,
-23,
2,
38,
-21,
45,
-28,
8,
24,
55,
-13,
29,
10,
-11,
-69,
-52,
16,
-42,
25,
32,
5,
-49,
-23,
54,
-33,
-44,
0,
-2,
-18,
-6,
-60,
22,
0,
62,
-60,
22,
-5,
29,
-15,
28
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This action was instituted by the plaintiff to recover eight per cent interest from January 31, 1918, on $4,000 for two years and nine months, upon a promissory note, the principal amount of which was paid at maturity and by agreement accepted by the plaintiff without prejudice to her right to claim interest. The note reads as follows:
“$4,000. Jan. 31, 1918.
“Two years and nine months after date, for value received, I promise to pay to the order of Elsie Burnett at the First Nat. Bank of Lewistown, Mont., four thousand dollars with interest at-per cent, per annum.
“W. 0. Burnett.”
Defendant’s answer pleads affirmatively an understanding had between the parties at the time of the execution of the note that it should be noninterest bearing. Issue was joined by reply. The case was tried before the court with a jury. The defendant undertook to introduce proof tending to show an agreement at the time of the execution of the note, not to pay interest. Upon objection such evidence was by the court rejected, as was also defendant’s offer of proof made to similar effect. On plaintiff’s motion a verdict was directed in her favor, upon which judgment was regularly entered for the sum of $880 and costs. The appeal is from the judgment.
But one question arises determinative of this appeal, viz.: "What is the legal effect of the note as executed, as respects plaintiff’s right to collect interest thereon?
Section 8421 of the Revised Codes of 1921 provides: “Where an instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given, and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in ae cordance with the authority given, and within a reasonable time. ’ ’
There is no obligation placed upon the payee to complete the note by filling in the blank rate of interest. In this instance, the plaintiff not having done so, the defendant cannot be heard to complain, for he is in no worse position than if she had in fact inserted the figure 8. The contract is*to pay the note “two years and nine months after date, * * * with interest at-per cent per annum. ’ ’ The legal rate of interest fixed by law is eight per cent per annum, and in the absence of express agreement fixing a different rate, that is the rate to be allowed. The statute (Rev. Codes 1921, sec. 7725) reads: “Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the rate of eight per cent per annum after they become dire on any instrument of writing, except a judgment, on an account stated, and on moneys lent or due on any settlement of accounts from the date on which the balance is ascertained, and on moneys received to the use of another and detained from him. In the computation of interest for a period of less than one year, three hundred and sixty-five days are deemed to constitute a year.”
In the absence of fraud or mistake, neither of which is alleged in the present case, “when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing.” (Sec. 10517, Rev. Codes 1921.) In this case the best and only evidence of the contract is the writing itself. (Id., sec. 10516.)
The written contract superseded all prior negotiations and agreements, and to it alone must we look to determine the obligation of the defendant. (Kelly v. Ellis, 39 Mont. 597, 104 Pac. 873; Rowe v. Emerson-Brantingham Co., 61 Mont. 73, 201 Pac. 316; State ex rel. Broadwater Farms Co. v. Broadwater Elevator Co., 61 Mont. 215, 201 Pac. 687; Cook v. Northern Pac. Ry. Co., 61 Mont. 573, 203 Pac. 512; Leigland v. Rundle Land & Abstract Co., 64 Mont. 154, 208 Pac. 1075; Webber v. Killorn, 66 Mont. 130, 212 Pac. 852.)
Evidence offered to show the understanding of the parties as to the payment of interest at the time of the execution of the note was properly excluded.
We think the correct rule and that sustained by both reason and authority is that a promissory note payable with interest without specifying the rate carries interest at the rate prescribed by law. (22 Cyc. 1530; Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369; Hornstein v. Cifuno, 86 Neb. 103, 20 Ann. Cas. 1267, 125 N. W. 136; Wyoming Nat. Bank v. Brown, 7 Wyo. 494, 75 Am. St. Rep. 935, 53 Pac. 291; Franklin Nat. Bank v. Roberts Bros. Co., 168 N. C. 473, 84 S. E. 706.)
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
-47,
-9,
5,
11,
-24,
-8,
45,
-57,
27,
-4,
7,
56,
22,
29,
-24,
34,
16,
-60,
21,
-19,
-58,
-55,
21,
-55,
-9,
36,
-6,
17,
23,
37,
17,
14,
-48,
71,
-44,
-17,
-10,
-21,
34,
-16,
45,
9,
21,
35,
-29,
42,
-12,
-100,
67,
-34,
34,
-42,
4,
-6,
-10,
26,
7,
-41,
-22,
15,
-50,
-54,
62,
25,
-18,
1,
24,
12,
-25,
1,
-32,
-49,
6,
-46,
-56,
-43,
20,
3,
-74,
-40,
-72,
-76,
-54,
30,
-33,
-35,
-32,
-14,
32,
10,
14,
13,
17,
-12,
-17,
35,
0,
-11,
-4,
54,
13,
-73,
-44,
0,
24,
37,
-8,
-20,
1,
2,
-16,
49,
-14,
-1,
-50,
-11,
-26,
19,
12,
-34,
-23,
32,
6,
-16,
-19,
-7,
-76,
2,
1,
-9,
5,
48,
-37,
72,
-32,
-14,
-23,
-23,
56,
6,
-13,
-62,
-1,
4,
-9,
-25,
17,
-11,
-26,
-44,
-32,
-23,
39,
9,
8,
-46,
-20,
-59,
-33,
-23,
31,
-37,
38,
2,
5,
30,
-19,
26,
49,
-36,
73,
10,
-84,
-4,
2,
24,
35,
-60,
33,
-22,
-7,
75,
12,
13,
35,
-13,
-68,
10,
82,
13,
-8,
-17,
-37,
18,
-46,
-19,
-24,
-11,
17,
-23,
7,
-2,
12,
24,
-50,
0,
-11,
-6,
0,
63,
-18,
-8,
-38,
30,
-52,
14,
85,
-32,
-14,
43,
-22,
18,
-42,
-36,
-11,
-12,
36,
-19,
-2,
30,
-101,
14,
8,
37,
10,
47,
-1,
23,
-53,
23,
-24,
5,
55,
-15,
-32,
3,
-21,
14,
2,
4,
-1,
13,
-25,
9,
76,
37,
38,
-19,
-3,
-52,
-11,
30,
9,
-18,
11,
-47,
6,
-4,
-6,
-6,
34,
-63,
-3,
52,
2,
-42,
45,
-15,
-29,
-50,
2,
-8,
-25,
36,
36,
-2,
-26,
-9,
4,
38,
9,
29,
41,
-14,
30,
42,
0,
13,
8,
46,
11,
-64,
12,
46,
-40,
-11,
-8,
8,
-58,
-69,
9,
32,
-24,
-22,
62,
16,
-51,
4,
49,
57,
86,
37,
3,
1,
18,
29,
0,
-60,
-29,
-22,
26,
33,
-10,
31,
-16,
7,
26,
34,
16,
-41,
54,
17,
-3,
0,
30,
6,
-27,
5,
-48,
58,
-3,
24,
-18,
12,
-21,
44,
27,
-4,
-19,
55,
18,
26,
27,
-65,
50,
12,
-31,
58,
-13,
39,
-19,
52,
-6,
-91,
-24,
42,
25,
-32,
-8,
24,
-52,
-25,
-5,
-14,
-10,
64,
26,
-52,
3,
-38,
8,
23,
-9,
45,
-50,
-31,
19,
-43,
-59,
-52,
-23,
12,
-2,
-25,
-35,
10,
10,
22,
1,
53,
24,
-7,
-22,
-49,
19,
28,
4,
27,
-12,
-38,
28,
-51,
-32,
-13,
11,
-32,
12,
20,
-27,
-24,
-9,
7,
51,
-7,
-20,
-38,
10,
35,
11,
28,
86,
34,
-61,
8,
-6,
18,
-6,
-62,
44,
34,
40,
-35,
65,
46,
33,
31,
47,
14,
-42,
-49,
-14,
26,
-3,
56,
18,
-3,
39,
-18,
14,
24,
5,
19,
7,
-8,
24,
55,
-19,
-38,
-33,
19,
-31,
-19,
23,
5,
-18,
-18,
-54,
-25,
-66,
-7,
55,
-7,
-36,
-5,
-16,
-51,
-66,
-49,
0,
-11,
-26,
13,
20,
20,
-16,
39,
-2,
-44,
13,
21,
32,
2,
36,
33,
25,
15,
-16,
9,
-6,
71,
28,
-22,
-34,
48,
-41,
-15,
19,
50,
5,
-26,
-46,
8,
-27,
-30,
-30,
-9,
25,
1,
-29,
-38,
-53,
-26,
26,
63,
-41,
-9,
8,
6,
5,
26,
-19,
-84,
43,
62,
-40,
16,
20,
3,
-9,
-29,
-7,
69,
-50,
19,
13,
-35,
27,
36,
-49,
-38,
-27,
-77,
-36,
0,
6,
-47,
-37,
-10,
15,
-31,
37,
11,
-48,
-15,
-19,
35,
-33,
31,
5,
35,
71,
41,
-34,
40,
59,
-4,
-16,
-50,
-1,
23,
-10,
52,
53,
29,
-5,
-57,
-10,
40,
39,
-23,
47,
37,
10,
44,
-7,
-84,
3,
-11,
-1,
1,
31,
64,
-9,
23,
39,
-14,
-78,
-9,
-18,
30,
51,
12,
30,
53,
-57,
46,
-5,
-19,
13,
-20,
-10,
33,
-8,
0,
-9,
11,
0,
-9,
33,
-18,
39,
8,
69,
-75,
-5,
12,
8,
-9,
-14,
16,
-9,
-2,
6,
23,
-36,
28,
-2,
13,
0,
5,
37,
-11,
10,
-34,
42,
26,
-23,
-33,
24,
-16,
-34,
-4,
27,
51,
-18,
-86,
5,
-1,
0,
16,
14,
10,
-62,
13,
1,
1,
62,
64,
17,
32,
43,
-74,
23,
38,
-48,
-3,
-50,
23,
-29,
16,
36,
-22,
-18,
-28,
-3,
-34,
70,
41,
-32,
-36,
23,
-35,
56,
-1,
-45,
24,
21,
-16,
-33,
45,
53,
15,
-55,
11,
6,
-16,
-13,
2,
32,
14,
-37,
27,
-34,
11,
-53,
-21,
-29,
8,
-24,
-6,
33,
-25,
17,
7,
-26,
42,
-64,
7,
11,
-36,
-20,
49,
-31,
16,
-11,
-2,
-29,
-30,
-19,
-43,
-13,
-8,
-28,
44,
-4,
-32,
-22,
-34,
26,
22,
-3,
12,
-25,
-26,
13,
18,
0,
18,
28,
83,
-70,
23,
-20,
-20,
-20,
25,
-19,
-6,
-18,
-22,
0,
-71,
-24,
3,
59,
49,
30,
25,
-4,
11,
-51,
-10,
-1,
0,
-36,
50,
-58,
-9,
15,
-15,
-54,
28,
4,
39,
25,
19,
-7,
43,
-61,
31,
22,
7,
-26,
12,
-17,
15,
17,
-17,
-7,
-27,
5,
-61,
-47,
7,
20,
-5,
-4,
61,
23,
-16,
0,
43,
6,
-37,
-37,
-10,
20,
-16,
43,
-8,
-2,
20,
0,
10,
58,
32,
-35,
25,
14,
3,
-47,
17,
-33,
-10,
-36,
46,
28,
-49,
38,
44,
-43,
20,
2,
-1,
-25,
10,
45,
-7,
-51,
10,
-51,
19,
-21,
-39,
35,
-78,
0,
-39,
34,
26,
25,
3,
37,
2,
4,
16,
10,
40,
29,
44,
29,
-19,
36,
-38,
-38,
70,
8,
-61,
35,
11,
43,
-36,
-24,
-29,
22,
9,
-6,
14,
-22,
29,
-8,
9,
19,
40,
-22,
44,
-44,
-17,
2,
2,
39,
-30,
33,
78,
18,
-9,
21,
-49,
39,
-3,
-11,
71,
8,
36,
30,
-32,
-24,
9,
17,
13,
-43,
40,
-9,
-29,
-3,
-38,
37,
-46,
66,
-29,
-38,
-24,
-7,
-14,
-27,
-7,
88,
-34,
-42,
-10,
16,
-9,
-41,
23,
3,
0,
-29,
23,
3,
-11,
8,
-3,
-12,
34,
18,
-30,
71,
-30,
5,
0,
-29,
-31,
-1,
52,
-41,
-92,
-2,
-8,
-79,
-20,
-3,
12,
32,
28,
-16,
25,
5,
9,
-11,
23,
12,
-5,
-5,
60
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This action was brought by the plaintiff, a resident of Ravalli county and a land owner within the Bitter Root irrigation district, in behalf of himself and all others similarly situated to enjoin the sale of $1,140,000 worth of coupon bonds of the district, $145,000 of which have been advertised for sale and will be sold unless injunction issue. Demurrer to the complaint was sustained, and judgment entered for defendants. Plaintiff appeals.
To avoid prolixity it may be said that the controversy is divided into three parts, presenting the following questions: (1) Whether the court’s order establishing the district is void for failure to give accurate descriptions of the lands included within the district as required by section 7169, Bevised Codes of 1921; (2) whether the statute imposing a tax upon the entire acreage of each tract, based upon the proportion thereof to be irrigated, is constitutional; (3) whether the bonds proposed to be issued are in conformity with the law.
Two minor questions will be mentioned later.
1. The court made its order establishing the district on December 9, 1920. It then included 13,202 acres. Upon proper petition presented the court on July 7, 1921, made an order annexing 6,991.20 acres to the district, and on June 24, 1922, the court, upon petition, made another order annexing 681 acres thereto. So far as this record discloses, neither the plaintiff nor anyone else interested in this controversy appealed from either of these orders. Plaintiff’s action, therefore, is in the nature of a collateral attack, and unless the order creating the district is void upon its face by reason of uncertainty in description the plaintiff must fail upon that score. (O’Neill v. Yellowstone Irr. Dist., 44 Mont. 492, 121 Pac. 283.)
In the first order this appears: “That the lands included in the original petition, less a deduction of seven and one-half per cent, agreed to be not benefited by irrigation, shall be included in the district.” By reason of this language it is urged that uncertainty is cast into the order; but in view of what precedes and follows the quoted language, this sentence is ineffectual for any purpose and must be disregarded as meaningless.
After making the necessary findings and allowing the petition, the court ordered: “That the irrigation district known as the Bitter Root irrigation district be and the same is hereby established; that the lands contained and included within said district and which will be benefited by irrigation by means of said system are described as follows, to-wit. # # #
The descriptions embraced in the order consist of a large number of parcels of land. Some are parts of Hamilton Heights, Summerdale Orchards, Mountain View Orchards and the like, and are referred to by lot and block “according to the official plat thereof on file and of record in the office of the county clerk” of the county; other lands are described by metes and bounds, and others by legal subdivisions, forty acres or less. Each and all of the descriptions are sufficient to identify the particular tract of land involved; indeed, thus far the descriptions are accurate. But following the description of each lot or parcel there is additional matter, the whole being in tabulated form.’ For instance:
Lot. Block. Gross Area. Area Included
3 1 14.82 11.80
4 1 14.80 12.40
Others appear thus: After setting forth “that part of the northeast quarter of the northeast quarter lying under canal” (section, etc., given later in description), there appears under “'Gross Area” the figures “15.40,” and under “Area Included” the figures “15.40.” In other words, in one case the “Gross Area” is the same as the “Area Included”; in another, “Area Included” is less than “Gross Area.”
As illustrative of the probable meaning of the phrase “Gross Area” and “Area Included” we find in the second order descriptions of lots and parcels tabulated substantially as are those in the first order, but the phrases are “Gross Acres” and “Irrig. Acres.”
An analysis of all the things done as shown by this record leads to the conclusion that “Area Included” must have been intended to mean “Area Irrigable,” or else it does not mean anything. But if it means that it serves no useful purpose. The court did not have any authority to fix the amount of the irrigable area in the respective tracts in the original order, which was made under the provisions of section 2 of Chapter 116 of the Session Laws of 1919, now section 7169, Revised Codes of 1921. Under the provisions of that section, which has to do with the hearing on the petition, the court, if it finds that the statutory requirements have been met up to that time, shall make and enter an order: Setting forth its finding and allowing the petition; establishing the proposed district; giving accurate descriptions of the lands included within the proposed district; dividing the proposed district into three, five or seven divisions, as may be advisable in view of the size of the district; appointing as commissioners one competent person for each division of the district; “such finding and order shall be conclusive upon all the owners of lands within the district that they have assented to and accepted the provisions of this Act; and shall be final unless appealed from to the supreme court within sixty days from the day of entry of such order.”
It is provided in the fore part of the section that: “The court may make such changes in the proposed district as may be deemed advisable, or as fact, right and justice may require; but shall not exclude from such proposed district any land which is susceptible of irrigation from the same general source, and by the same general system of works applicable to the other lands of such proposed district, if the owner or owners of such lands shall file in such district court a written request that such lands be included in such district; nor shall any lands which will not, in the judgment of the court, be benefited by irrigation by means of said system of works, nor shall lands already under • irrigation, nor lands having water rights appurtenant thereto, nor lands that can be irrigated from sources more feasible than the district system, be included within such proposed district, unless the owner of such lands shall consent in writing to the inclusion of such lands in the proposed district, as hereinafter provided, and to this end the court may subdivide lands included within the petition or proposed at the hearing to be included within such district into forty-acre tracts or smaller subdivisions thereof. * * * ”
It is plain that when the parcels of land have been reduced into forty-acre tracts or smaller subdivisions thereof, or are already in the form of lots, being parts of blocks (less than forty acres), the statute does not contemplate that the court may scale them still further by arbitrarily excluding portions thereof. But it is fair to say that no such attempt appears to have ■ been made by the court. A critical examination of the order discloses beyond a doubt that the court intended to and did include within the district all of the lots and parcels of land described. It was unnecessary to have made any mention of the gross area, because, as is above adverted to, the descriptions were sufficient without stating the acreage included within each. To be sure, mention of the acreage is permissible by inference drawn from the language of section 7190, Bevised Codes of 1921.
The amount of irrigable areas in the respective tracts is fixed by the commissioners by authority of section 7235. If they see fit, they may ask the court for an order confirming their action, by the provisions of that section. (It is true that by the provisions of sections 7190 to 7194, inclusive, the court may fix irrigable acreages upon the petition of the individual land owner or land owners, but these sections do not have any application to the instant case.)
Thus it follows that the words “Area Included” and the figures appearing thereunder have no proper place in the order, are nugatory, and consequently must and will be disregarded. “Superfluity does not vitiate.” (Sec. 8766, Bev. Codes 1921.)
2. By the provisions of section 7235: “On or before tho second Monday in July each year the board of com missioners of each irrigation district in this state shall ascertain the total amount required to be raised in that year for the general administrative expenses of the district, including costs and maintenance and repair and interest on and the principal of the outstanding bonded or other indebtedness of the district, * * * and shall levy against each forty-acre tract, or fractional forty-acre tract of land in the district (or where lands shall be owned and held in twenty-acre tracts or less, then against each such tract), that portion of the said amount so to be raised which the irrigable area of such tract bears to the total area of all of the irrigable lands in the district. But the tax thus determined by the irrigable area of each such tract shall become a lien upon the entire tract of land of which such irrigable area forms a part, and attaches thereto as of the first Monday of March of that year.” (Provisions amendatory and supplementary to section 7235 are found in Chapter 157, section 19, Laws of 1923.)
Thus the apportionment of the assessment is on the basis of the irrigable area in each tract, the unit tract being forty acres or less. Montana being a semi-arid state, its people are greatly interested in whatever tends to the development of its arid lands by supplying water thereto. That irrigation of one portion of a tract of arid land benefits and consequently increases the value of the remainder, like truth, needs no demonstration. This method of apportionment has had the benefit of long experience in other states and it is the consensus of opinion that no fairer method has been devised. It cannot be said that the unit selected as a basis, forty acres or less, is unreasonable or in anywise arbitrary.
Respecting local improvements, the method of apportionment of assessments primarily is to be determined by legislative authority. (McMillan v. City of Butte, 30 Mont. 220, 76 Pac. 203.)
But appellant insists that the method provided is in contra- vention of section 11 of Article XII of Montana’s Constitution, which declares: “Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax”; and of section 1 >of the same Article, which declares in part: ‘‘The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property. * * * ” There is no merit in this contention. These provisions of the Constitution relate only to taxation for governmental purposes. They do not imply any such narrow construction as operates to restrict the development of the natural resources of the state through what have become known as improvement districts, the basic plan of which is to benefit the whole by the improvement of a part. In other words, the restrictions contained in those sections have no relation to special assessments for benefits to property. This general subject was under discussion in Billings Sugar Co. v. Fish, 40 Mont. 256, 135 Am. St. Rep. 642, 20 Ann. Cas. 264, 26 L. R. A. (n. s.) 973, 306 Pac. 565, in which the present holding with reference to irrigation districts was clearly foreshadowed. The decision in that case is in point here. (See, also, Houck v. Little River Drainage Dist., 239 U. S. 254, 60 L. Ed. 266, 36 Sup. Ct. Rep. 58 [see, also, Rose’s U. S. Notes]; Northern Pac. Ry. Co. v. John Day Irr. Dist., 106 Or. 140, 211 Pac. 781; City of Denver v. Knowles, 17 Colo. 204, 17 L. R. A. 135, 30 Pac. 1041.)
3. Appellant also contends that the form of bonds pro- posed to be issued and sold does not comply with Chapter 38, Laws of 1923, approved February 28, 1923, which provides that the state and all political subdivisions of the state and other taxing units having the power of issuing bonds shall give preference to amortization bonds, and accept serial bonds only when amortization bonds cannot be negotiated to good advantage. Neither is there any merit in this contention.
Defendants are proceeding under Chapter 34, Part IV, of the Civil Code, sections 7208 to 7231, inclusive (which for brevity’s sake we shall call the 'Irrigation Law), and specifically under sections 7210, 7211, 7212 and 7214.
Chapter 38, as its title and subject matter show, is a general statute on the subject to which it relates. The provisions of the Irrigation Law respecting the issuance and sale of bonds are special. This court has held hitherto that: “Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent to any necessary repugnancy between them, the special will prevail over the general statute.” (Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; Reagan v. Boyd, 59 Mont. 453, 197 Pac. 832.)
A comparison in detail of the two statutes will not be useful. Suffice it to say that in some respects their provisions are antipodal. The provisions of Chapter 38 cannot be reconciled with the Irrigation Law respecting the issuance of bonds; they are wholly inapplicable thereto. A comparison of the two Acts will show that if it should be held that Chapter 38 repealed the provisions of the Irrigation Law respecting the sale and issuance of bonds, it will be impossible for irrigation districts to issue bonds until the legislature shall provide still further and additional methods for the purpose. The legislature by enacting Chapter 38 did not intend to nor did it bring any such condition to pass. On the contrary, by enacting Chapter 157, Laws of 1923, approved March 12, 1923, it amended the Irrigation Law, and specifically sections 7210, 7212 and 7214, thus leaving no doubt as to its intent on the subject.
4. It is urged by appellant that the tax provided to pay principal and interest on the bonds is insufficient on its face. Upon the record, however, this contention may not be maintained.
Another objection is that as the 681 acres were included within the district after the court made its order providing for the issuance of the bonds, the owners of that land have not had an opportunity to object to the bond order. But the owners of the 681 acres do not appear to be complaining; the action of the appellant in tailing up the cudgel in their behalf is merely gratuitous. It does not concern him, and upon this feature of the case he will not be heard.
Finding no error in the record, the judgment is affirmed.
Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-28,
57,
10,
-25,
-3,
14,
28,
24,
41,
41,
-10,
-3,
3,
44,
21,
-1,
-30,
-15,
72,
33,
10,
-53,
-6,
-34,
15,
11,
-35,
-22,
-17,
3,
38,
-15,
-10,
8,
1,
20,
20,
33,
-24,
-37,
0,
1,
-22,
-32,
11,
31,
-5,
-49,
61,
-11,
-19,
11,
-37,
9,
-52,
14,
32,
5,
-31,
34,
-41,
-10,
6,
19,
8,
12,
15,
7,
18,
-10,
-50,
11,
20,
-59,
32,
-1,
3,
-13,
-29,
2,
-21,
26,
-6,
-14,
3,
-28,
-44,
18,
9,
22,
-41,
12,
12,
9,
19,
10,
30,
-1,
-10,
-4,
37,
-47,
7,
16,
21,
-8,
-48,
18,
73,
20,
35,
17,
-70,
-11,
-59,
-17,
-9,
-14,
-17,
-71,
16,
0,
-12,
41,
-34,
47,
-17,
-19,
14,
-19,
-16,
25,
7,
0,
40,
-16,
28,
-49,
10,
51,
11,
-16,
33,
0,
16,
0,
48,
30,
-17,
21,
53,
23,
-6,
44,
2,
-22,
53,
-23,
-8,
-3,
52,
10,
29,
-39,
-56,
69,
-28,
-10,
-6,
-27,
65,
14,
-34,
-13,
19,
-19,
15,
-35,
9,
4,
13,
22,
30,
-44,
-8,
15,
-53,
31,
-5,
32,
-30,
-71,
12,
-14,
-18,
14,
1,
-15,
-8,
13,
13,
-31,
20,
13,
-26,
49,
-35,
13,
-12,
18,
-56,
-8,
44,
-14,
-5,
-19,
0,
12,
-3,
-13,
46,
70,
24,
49,
-1,
-55,
2,
-10,
15,
-9,
-16,
64,
33,
28,
-18,
20,
-12,
28,
-25,
33,
2,
11,
-28,
-68,
-15,
23,
-4,
-16,
9,
30,
-33,
-7,
31,
50,
-6,
-13,
-11,
-43,
-34,
-73,
46,
3,
15,
10,
-75,
-67,
-47,
-3,
24,
-3,
-50,
4,
4,
27,
-8,
-29,
56,
-16,
-20,
5,
2,
-10,
21,
34,
6,
21,
46,
56,
-40,
29,
-36,
6,
-37,
-18,
44,
20,
-7,
6,
56,
-28,
-37,
-52,
10,
14,
-3,
-17,
-12,
10,
-3,
-5,
17,
57,
-23,
4,
-27,
22,
25,
51,
54,
-57,
-14,
60,
39,
-5,
-3,
33,
49,
-12,
-46,
-7,
0,
38,
0,
-1,
27,
-17,
-29,
-10,
-42,
12,
13,
-6,
8,
35,
22,
36,
34,
-14,
7,
37,
0,
5,
-26,
19,
-33,
-34,
19,
-18,
-19,
-19,
16,
-5,
11,
-65,
-53,
10,
-27,
-27,
22,
4,
-65,
-11,
-6,
1,
32,
-18,
20,
40,
-35,
-10,
-9,
9,
8,
29,
65,
34,
-11,
23,
-13,
-36,
11,
-31,
-39,
74,
-21,
14,
27,
-8,
-23,
-8,
-20,
19,
-4,
-60,
-14,
47,
41,
-12,
30,
-10,
60,
-36,
1,
-63,
16,
20,
-39,
48,
50,
28,
15,
-42,
-22,
-11,
11,
8,
8,
33,
-8,
-31,
-28,
20,
-22,
-38,
-12,
23,
9,
-38,
-27,
41,
-13,
26,
34,
15,
-26,
-29,
8,
40,
37,
31,
-4,
-4,
-52,
21,
-22,
22,
19,
-30,
37,
-45,
-27,
84,
-23,
11,
-37,
-9,
-34,
-15,
8,
-9,
-19,
64,
50,
26,
13,
16,
-10,
-42,
43,
-37,
-13,
-46,
17,
-35,
-28,
27,
-23,
-6,
14,
12,
-18,
17,
-6,
-76,
-23,
-8,
-11,
-31,
5,
-14,
23,
-7,
-26,
-30,
-28,
28,
-14,
-21,
0,
88,
14,
-28,
23,
-63,
9,
-5,
32,
12,
-4,
-6,
-13,
22,
-50,
-33,
-13,
-14,
-27,
-2,
89,
-18,
-46,
10,
-34,
-18,
-57,
18,
-8,
30,
-11,
-78,
24,
-3,
20,
45,
-65,
1,
-27,
-47,
5,
-34,
-2,
20,
-12,
5,
-17,
12,
-45,
-76,
-11,
34,
12,
19,
0,
-51,
-2,
24,
-7,
-1,
-23,
20,
-1,
20,
-38,
-32,
22,
-42,
2,
22,
46,
-13,
-10,
-48,
-19,
-45,
-23,
52,
29,
25,
6,
-1,
20,
0,
-30,
2,
29,
32,
-4,
8,
15,
22,
-8,
20,
-1,
38,
-3,
26,
-28,
1,
22,
-4,
-61,
33,
57,
4,
63,
15,
30,
-22,
48,
13,
-5,
-23,
39,
9,
20,
-26,
-22,
21,
-39,
3,
27,
-27,
29,
-28,
23,
21,
-28,
46,
-41,
-7,
44,
-35,
-19,
-28,
0,
-11,
9,
2,
4,
-7,
15,
34,
8,
-79,
32,
-9,
-13,
1,
20,
-27,
18,
-41,
-13,
-13,
-57,
0,
3,
63,
-3,
11,
-8,
-39,
-11,
-5,
0,
-25,
70,
68,
-7,
-12,
-10,
-14,
-30,
-12,
27,
2,
-8,
22,
6,
-4,
64,
13,
9,
31,
-18,
-34,
-3,
8,
-41,
-81,
28,
-13,
17,
-11,
-4,
-12,
36,
1,
1,
10,
67,
-46,
-9,
20,
-33,
-18,
30,
23,
-62,
-19,
26,
1,
-45,
-2,
-23,
59,
0,
-26,
-32,
38,
-2,
42,
15,
30,
-35,
34,
11,
34,
12,
-23,
18,
16,
-6,
44,
-22,
53,
35,
9,
-23,
45,
-6,
-48,
1,
3,
-52,
5,
-50,
15,
-8,
-6,
-6,
22,
-23,
17,
2,
7,
4,
-13,
-16,
37,
45,
-34,
-20,
-11,
12,
-30,
-45,
11,
-10,
-20,
-16,
-25,
-33,
-26,
-3,
-16,
16,
55,
13,
18,
-41,
-57,
-4,
-20,
-29,
-4,
2,
11,
-26,
8,
0,
-13,
27,
60,
17,
4,
-32,
17,
-2,
-4,
-28,
-9,
37,
-13,
37,
-9,
-68,
48,
-42,
-67,
-31,
3,
23,
32,
42,
7,
21,
-12,
-49,
63,
30,
-49,
19,
8,
-1,
-21,
11,
3,
-8,
20,
-34,
5,
-10,
-42,
-17,
-4,
-34,
7,
1,
40,
-29,
13,
-12,
8,
22,
-26,
-15,
0,
0,
70,
64,
28,
-10,
-11,
22,
-3,
38,
6,
3,
41,
1,
9,
19,
-26,
-16,
47,
-7,
-56,
42,
-22,
9,
-38,
2,
-11,
-5,
-25,
18,
39,
22,
40,
61,
-18,
-34,
35,
-14,
-8,
-17,
-44,
-17,
-3,
-4,
-37,
-8,
-39,
-49,
4,
61,
62,
7,
-5,
0,
-35,
-20,
-23,
-23,
0,
7,
-70,
3,
15,
-16,
-2,
-39,
-23,
-45,
-1,
-39,
24,
7,
63,
-8,
28,
4,
-26,
23,
27,
13,
15,
-41,
-18,
-26,
-23,
54,
31,
-10,
2,
14,
8,
-21,
0,
-38,
32,
-3,
50,
-11,
-45,
-52,
20,
29,
-12,
-45,
23,
0,
-32,
11,
17,
40,
48,
-48,
11,
7,
-4,
10,
-17,
36,
23,
-13,
-16,
31,
1,
1,
5,
-49,
-29,
46,
68,
10,
-46,
-40,
-10,
-5,
-11,
6,
-35,
-4,
48,
-41,
1,
-4,
-58,
12,
-25,
-25,
35,
0,
-26,
21,
-5,
36,
-3,
0,
-42,
-41,
-13,
-25,
69,
22,
25,
-38,
-22,
-7,
-27,
-11,
-18
] |
MR. COMMISSIONER ROSE
prepared the opinion for the court.
This action was instituted to recover on an indemnity insurance policy issued by the defendant to the plaintiff on December 8, 1919, by the terms of which the defendant company agreed, subject to certain conditions, to indemnify the assured against loss or expense resulting from claims for personal injuries suffered or alleged to have been suffered by others than its employees by reason of the use of a certain automobile or motor-truck described in the policy. The case was tried to a jury and a verdict returned for the plaintiff, upon which judgment was duly entered and this appeal is from the judgment, the defendant’s motion for a new trial having been denied.
The policy involved herein contains, among others, the following stipulations:
“Report of Suit Against Assured. C. If suit is brought against the assured to enforce a claim for damages covered by this policy he shall immediately forward to the company or its duly authorized agent every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend such suit in the name and on behalf of the assured. The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals,' but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement or in any legal proceeding, or incur any expense, or settle any claim, except at his own cost, without the written consent of the company previously given, except that, as respects liability for personal injuries covered hereunder, the assured may provide at the company’s expense such immediate surgical relief as is imperative at the time of the accident.
“Suit Against Companies. J. No action shall lie against the company to recover for any loss and or expense covered by this policy arising or resulting from claims upon the assured for damages, unless it shall be brought by the assured for loss and or expense actually sustained and paid in money by him after actual trial of the issue. The Aetna Life Insurance Company, in accordance with the terms of this policy, hereby assumes the following risks, while the automobiles described herein are within the limits of the United States of America and Canada, namely: Cause Five — Liability. Against loss and/or expenses arising or resulting from claims upon the assured for damages on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered, by any person or persons not hereinafter excepted, by reason of the ownership, maintenance and/or use of any of the automobiles described herein, provided such accidents or alleged accidents occur while this policy is in force, and provided further that: (1) This company shall not be liable under this clause of the policy for: (a) Accidents occurring while the automobiles described are being operated in any race or speed contest, or by any person in violation of law as to age or in any event under the age of sixteen years; (b) accidents to assured’s domestic or household servants while engaged in operating or caring for an automobile; (c) accidents to any other employee of the assured arising out of and in the usual course of the trade, business, profession or occupation of the assured; (d) any obligation assumed by or imposed upon the assured by any Workmen’s Compensation agreement, plan or law. (2) This company’s liability for loss on account of an accident resulting in bodily injuries and/or death to one person is limited to five thousand dollars ($5,000); and, subject to the same limit for each person, this company’s total liability for loss on account of any one accident resulting in bodily injuries and/or death to more than one person is limited to ten thousand dollars ($10,000).”
During the life of the policy one John Ouimet was seriously injured by the automobile truck of respondent and thereafter, through his guardian, instituted suit to recover $30,000 damages, in which action it was alleged that Ouimet was an employee of respondent at the time of the injury complained of, which was denied in respondent’s answer. In compliance with the terms and conditions of the policy the appellant was duly notified of the suit and the summons and complaint were promptly delivered to it, whereupon appellant refused to assume any responsibility and declined to defend the action upon the alleged ground that Ouimet was an employee of respondent company. Upon the refusal of appellant to defend the action, the respondent interposed an answer and after issue joined, upon advice of counsel, compromised the claim for the sum of $3,000 and consented that judgment be rendered against it for said sum, which amount was paid by respondent to Ouimet, and after payment of the judgment the present action was instituted following appellant’s refusal to reimburse respondent for the amount, with costs, together with $200 expended for counsel fees.
The two principal questions submitted on this appeal for determination are: (1) Whether Ouimet was or was not an employee of respondent at the time of the accident; and (2) we are' required to construe the policy provision designated clause J, requiring respondent’s liability to be determined by a trial of the issue.
By its denial of liability and refusal to settle or defend the action as provided in clause C of the policy, the insurer breached the contract and released the insured from its agreement not to settle the claim without the written consent of insurer and waived clause J of the contract, making actual trial of the issue a condition precedent to a recovery.
That the compromise settlement effected by the respondent was fair and reasonable cannot be questioned although, under appellant’s theory of the law of the ease, the respondent must litigate the claim and actually pay the amount of the judgment after trial of the issue. After denial of liability by the insurer, the respondent compromised the claim, fearing that damages might be awarded in an amount in excess of the insurance, in that or some other action by the injured person or his guardian. The refusal of the insurer to defend the action was unjustified and it did so at its peril. It constituted a breach of the contract and the respondent clearly was entitled to recover such damages as were the natural and ordinary consequence of the breach. In substance appellant’s contention is that it would not be liable in any event, whether Ouimet was or was not an employee. It cannot escape liability by declaring in advance of trial that the claim for damages is not one covered by the policy.
Section 8169, Revised Codes of 1921, provides certain rules for interpreting agreements of indemnity, among which are the following: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: (4) The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect tó the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so. (5) If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter, suffered by him in good faith, is conclusive in his favor against the former.” And in a suit on an indemnity policy the burden is upon the insurer to rebut the foregoing presumption. This the appellant failed to do.
The leading case upon the questions presented is that of St. Louis D. Beef etc. Co. v. Maryland Casualty Co., 201 U. S. 173, 50 L. Ed. 712, 26 Sup. Ct. Rep. 400 [see, also, Rose’s U. S. Notes], which is decisive of the matters submitted. To the same effect see, also, Butler Bros. v. American Fid. Co., 120 Minn. 157, 44 L. R. A. (n. s.) 609, 139 N. W. 355; Mayor Lane & Co. v. Commercial Casualty Ins. Co., 169 App. Div. 772, 155 N. Y. Supp. 75; In re Empire State Surety Co., 214 N. Y. 553, 108 N. E. 825; South Knoxville Brick Co. v. Empire State Surety Co., 126 Tenn. 402, Ann. Cas. 1913E, 107, 150 S. W. 92; Fullerton v. United States Gas. Co., 184 Iowa, 219, 6 A. L. R. 367, 167 N. W. 700; Interstate Cas. Co. v. Wallins Creek Coal Co., 164 Ky. 778, L. R. A. 1915F, 958, 176 S. W. 217; Rieger v. London etc. Co., 202 Mo. App. 184, 215 S. W. 920; United States F. & G. Co. v. Pressler (Tex. Civ. App.), 185 S. W. 326; Western Ind. Co. v. Walker-Smith Co. (Tex. Civ. App.), 203 S. W. 93.
The contention of appellant that the judgment entered by consent against the respondent was upon the merits and that thereby the question of Ouimet’s employment became res adjudicata is without merit. Where the insurer has denied its liability under the policy and has refused to defend an action brought by the person injured, the liability of the in sured to such injured person and the extent of that liability may be litigated for the first time in an action on the policy between the insurance company and the insured. (Butler Bros. v. American Fid. Co., supra; St. Louis D. Beef etc. Co. v. Maryland Cas. Co., supra; sec. 10558, Rev. Codes 1921; Kansas City, etc., v. Southern Ry. News Co., 151 Mo. 373, 74 Am. St. Rep. 545, 45 L. R. A. 380, 52 S. W. 205; Glen Falls, etc., v. Insurance Co., 162 N. Y. 399, 56 N. E. 897.)
It was incumbent upon the plaintiff to prove that Ouimet was not in its employ. Proof was submitted upon this disputed question of fact, and the trial court very properly denied defendant’s motion for a nonsuit and for a directed verdict. The jury found this issue in favor of plaintiff, and their finding in this regard is not subject to review by this court, but is conclusive upon appeal. The jury are the exclusive judges of the credibility of a witness and of the weight to be given to his testimony. The evidence was conflicting upon this question, and this court will not interfere where the record on appeal shows substantial evidence to support a verdict and judgment, as appears in this case. The trial judge and the jury had the opportunity of seeing the witnesses and' of observing their demeanor on the stand; consequently they were better qualified to determine their credibility than are the justices of this court from an examination of the record on appeal. (Sees. 10505, 10672, Rev. Codes 1921; Lehane v. Butte Elec. Ry. Co., 37 Mont. 564, 97 Pac. 1039; Lizott v. Big Blackfoot Mill. Co., 48 Mont. 171, 136 Pac. 46; O’Langan v. First St. Bank of Hilger, 59 Mont. 190, 196 Pac. 149; Wick v. Western L. & Cas. Co., 60 Mont. 553, 199 Pac. 272.)
No abuse of discretion is shown in any of the trial court’s rulings, and on the other errors assigned it does not appear that prejudice was suffered by appellant so as to justify a reversal or retrial of this case.
We recommend that the judgment be affirmed.
Per Curiam :
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
Affirmed.
|
[
-53,
-2,
12,
-3,
38,
3,
-10,
-72,
44,
-43,
15,
17,
2,
5,
16,
20,
-6,
-9,
41,
-17,
-43,
-40,
10,
-88,
-33,
-44,
42,
-33,
10,
-14,
-19,
24,
0,
35,
-15,
15,
-31,
-35,
-75,
18,
-19,
29,
35,
26,
6,
-5,
27,
9,
74,
-48,
38,
-33,
-20,
-7,
-38,
-24,
18,
63,
-8,
56,
-48,
-76,
86,
5,
-24,
-18,
0,
42,
1,
56,
21,
6,
-11,
30,
-21,
-41,
1,
1,
-40,
-75,
-41,
-33,
33,
-69,
-1,
49,
5,
-6,
-21,
-37,
-32,
8,
-4,
-7,
-60,
-5,
-31,
-2,
-32,
59,
33,
-27,
-14,
47,
2,
74,
14,
-33,
22,
21,
-4,
27,
-7,
-27,
7,
-37,
-27,
0,
3,
14,
0,
-23,
26,
-12,
-3,
64,
18,
1,
-61,
-16,
-27,
40,
90,
82,
17,
-18,
7,
-50,
15,
49,
6,
0,
1,
24,
8,
73,
4,
6,
-18,
2,
47,
31,
15,
11,
-47,
-71,
-68,
-88,
37,
-22,
6,
-52,
-8,
40,
-19,
-26,
-9,
15,
39,
11,
20,
-71,
7,
-6,
16,
48,
15,
-22,
-47,
-25,
-12,
33,
-54,
-3,
-3,
-115,
39,
56,
29,
-76,
86,
-34,
-53,
62,
-36,
-5,
-9,
50,
31,
42,
62,
-51,
-19,
-13,
3,
72,
-24,
7,
72,
16,
33,
28,
-14,
-4,
21,
36,
6,
-21,
14,
-43,
-57,
-34,
-33,
-30,
-17,
-5,
-4,
-26,
43,
15,
-14,
1,
-5,
73,
-54,
-16,
-17,
-70,
36,
41,
22,
-6,
55,
-45,
36,
-26,
9,
-5,
-2,
-25,
11,
1,
49,
13,
-38,
-10,
14,
-29,
-7,
-7,
-34,
29,
-18,
48,
25,
-8,
29,
-37,
43,
-34,
20,
-27,
-20,
14,
18,
-44,
37,
-5,
20,
-6,
-21,
20,
-23,
44,
-48,
9,
20,
5,
-28,
-40,
48,
9,
50,
-12,
27,
-10,
43,
36,
-50,
38,
-14,
-5,
-11,
30,
40,
-2,
-48,
-39,
-14,
-11,
-82,
22,
20,
-38,
64,
1,
34,
-19,
31,
-5,
24,
41,
-18,
34,
6,
-41,
41,
-31,
15,
11,
-24,
-3,
42,
39,
-58,
-44,
-26,
22,
49,
8,
-2,
-19,
49,
1,
-49,
13,
28,
-17,
-34,
15,
-27,
6,
-34,
-78,
-18,
48,
61,
5,
-8,
23,
43,
12,
54,
30,
5,
-10,
7,
13,
-62,
75,
24,
-9,
-63,
-71,
20,
-41,
-10,
0,
-60,
14,
33,
-22,
-31,
-30,
-51,
62,
32,
-50,
-27,
-24,
-71,
18,
32,
60,
-31,
5,
-5,
-20,
-27,
30,
34,
36,
-37,
-32,
-30,
11,
61,
44,
-15,
-33,
-86,
-15,
23,
-55,
-7,
48,
-18,
27,
-34,
-40,
62,
-30,
-7,
15,
16,
-28,
18,
30,
-30,
-42,
18,
-27,
-3,
-28,
-48,
-36,
-2,
-41,
45,
46,
-24,
40,
-46,
50,
-33,
37,
25,
47,
33,
11,
42,
2,
76,
-6,
-24,
62,
22,
50,
-14,
-13,
-37,
-27,
-3,
15,
31,
-21,
0,
17,
22,
-55,
15,
-43,
-38,
32,
42,
-17,
-60,
-56,
-30,
28,
-40,
-13,
19,
9,
-33,
20,
46,
8,
11,
21,
27,
25,
-24,
-31,
-41,
-14,
-30,
0,
-17,
-56,
-36,
-3,
13,
-10,
-32,
-17,
31,
-77,
0,
-50,
27,
47,
28,
-7,
81,
17,
-39,
13,
41,
-43,
19,
3,
-13,
30,
-36,
-54,
-8,
18,
29,
-86,
-6,
-18,
-14,
-32,
-16,
58,
26,
26,
-35,
-57,
-3,
20,
-2,
-24,
1,
-29,
23,
72,
29,
-13,
-5,
-19,
46,
-13,
79,
2,
-2,
-28,
-34,
30,
50,
17,
-30,
6,
15,
13,
2,
-1,
50,
-66,
-83,
-4,
3,
16,
-19,
-11,
-17,
-29,
-61,
-30,
50,
-2,
-59,
4,
-80,
22,
-22,
53,
-43,
-50,
53,
29,
20,
13,
74,
34,
16,
-10,
-45,
16,
-25,
-9,
-41,
39,
4,
5,
16,
18,
51,
12,
2,
-17,
-10,
-16,
21,
-32,
-23,
25,
38,
17,
14,
7,
15,
56,
46,
30,
0,
-20,
-19,
50,
61,
18,
1,
-7,
-20,
14,
-31,
103,
0,
-21,
-12,
22,
94,
-4,
-25,
6,
19,
15,
17,
-33,
-32,
1,
3,
-58,
-46,
47,
17,
11,
-40,
11,
-43,
-39,
-33,
1,
7,
-44,
14,
-42,
-2,
0,
0,
-11,
34,
-7,
11,
46,
-31,
22,
-30,
56,
2,
13,
-10,
12,
-34,
19,
-15,
-1,
36,
18,
-2,
5,
-47,
-44,
-26,
39,
85,
25,
-6,
-8,
-2,
-3,
-14,
-1,
-41,
15,
-21,
14,
44,
-4,
22,
-50,
-13,
-76,
3,
39,
-11,
29,
-12,
-64,
-9,
-60,
17,
2,
-23,
85,
33,
7,
-14,
15,
37,
-44,
-29,
-14,
-15,
15,
5,
-49,
16,
-10,
17,
51,
80,
54,
11,
-30,
-79,
22,
68,
4,
-11,
-31,
19,
-33,
4,
3,
-24,
29,
32,
-69,
2,
30,
56,
-1,
-30,
22,
-2,
41,
-43,
-12,
18,
17,
38,
-29,
-9,
14,
46,
-62,
-21,
32,
7,
23,
23,
30,
-63,
-7,
4,
-3,
20,
7,
-23,
47,
-5,
-14,
-27,
4,
-28,
-14,
36,
-10,
27,
-3,
-58,
23,
14,
-34,
65,
5,
61,
-25,
-45,
-12,
43,
-8,
4,
10,
-25,
-9,
-9,
-2,
-42,
33,
-36,
6,
0,
-21,
-8,
-19,
33,
-10,
-23,
-40,
-52,
15,
-45,
83,
33,
-46,
-71,
-40,
1,
44,
-94,
74,
-31,
-24,
-19,
-16,
-10,
47,
-41,
-13,
-4,
7,
-4,
-37,
50,
-50,
6,
-24,
-44,
-71,
-57,
14,
60,
35,
-4,
4,
-45,
21,
-17,
89,
-20,
-48,
-38,
26,
15,
-73,
46,
36,
-28,
-34,
-12,
44,
-72,
11,
-16,
4,
-108,
12,
43,
42,
-25,
-16,
26,
-5,
-36,
42,
43,
-27,
-6,
-1,
33,
66,
-21,
30,
-9,
-69,
-49,
14,
52,
-30,
3,
-13,
7,
79,
-11,
3,
-19,
52,
7,
-20,
9,
-31,
18,
19,
6,
5,
27,
39,
-26,
-19,
9,
75,
20,
-11,
-22,
-49,
-38,
8,
-3,
13,
-10,
30,
-31,
-47,
50,
-21,
-35,
55,
47,
47,
29,
42,
1,
-29,
0,
29,
-4,
7,
-33,
0,
-13,
-24,
38,
-22,
16,
-47,
-28,
-54,
29,
54,
10,
-2,
-62,
-41,
46,
-21,
-21,
-39,
-55,
17,
20,
73,
19,
-42,
-24,
36,
-9,
23,
-3,
33,
5,
38,
12,
-6,
31,
86,
26,
-24,
-8,
33,
21,
26,
-88,
1,
8,
24,
73,
19,
0,
60,
-28,
-25,
-14,
45,
-38,
-47,
-12,
-45,
2,
52,
6,
-21
] |
MR. JUSTICE STARK
delivered the opinion of the court.
For a number of years prior to September 18, 1917, Patrick Rodgers was a resident of Prairie county, and at least a portion of the time was employed by one E'. W. Thomas, who was extensively engaged in the cattle 'business in Eastern Montana. Rodgers appears to have been thrifty, for he had accumulated some sixty head of cattle, which were run with the 'Thomas herds.
On the date above mentioned, Rodgers entered the military service of the United States by voluntary enlistment, and on the same day made a will in which he left all of his property to his aged father and mother, who lived in Ireland, and named Thomas as his executor. Thereafter he went overseas with the American Expeditionary Forces, and on June 22, 1918, died in France as the result of wounds received in action. Upon his enlistment he left his cattle in the keeping of Thomas, who agreed to look after them. Thomas ran the cattle with his own during the winter of 1917-18, and in the early summer of the latter year, pursuant to a letter which he received from Rodgers, purchased them and allowed the sum of $65 per head therefor.
It is fairly inferable from the record that Rodgers had directed Thomas to place the selling price of the cattle on deposit to his credit in the Miles City National Bank of Miles City. However, Thomas did not do this, but kept the cattle as his own, and retained the selling price without segregating it from his own funds, and used it in connection with bis business.
On December 4, 1918, Thomas filed a petition for the probate of the Rodgers will, and such proceedings were had thereunder that on July 17, 1919, the will was admitted to probate and Thomas appointed the executor thereof. Thomas immediately qualified by taking the necessary oath and filing a bond as required by the order of the court, and on or about July 17, 1919, paid all the debts of the deceased, together with the expenses of administration. Shortly thereafter, by au tiiority of the court, he sent to the legatees named in the will the sum of $190; the total expenditures thus-,made amounting to $1,138.20. On July 25, 1919, notice to creditors was duly published to present their claims to the executor within four months from that date.
In the petition for probate of the will the property of the estate is described and valued as follows: “Sale price of about 60 head of cattle sold to E. W. Thomas at $65 per head, $3,900; one saddle-horse, $50; one sheep wagon, $50; total, $1,000.” On July 17, 1919, appraisers of the estate were appointed, but- they did not act, and no inventory and appraisement of the estate were made until new appraisers were appointed by the court on October 8, 1921. These appraisers made their report on the same day of their appointment, showing the property of the estate to consist of “moneys belonging to said deceased which have come into the hands of the executor, $1,138.20; money due the estate from E. W. Thomas, $1,911.80,” and containing the further recital that the last-mentioned sum “has never been paid into the funds of the said estate and is a balance due on the purchase price of certain cattle owned by the said deceased which were purchased by the said E. W. Thomas from deceased during his lifetime.” On the same day that the inventory and appraisement were returned into court, Thomas rendered and filed his first account, reciting, among other things, that he had received the sum of $1,138.20, all of which had been paid out; also “that at the time of the death of the said deceased, E. W. Thomas was indebted to him in the sum of $3,380, and that there now remains due and owing a balance of $1,911.80, which the said E. W. Thomas has not paid to the said estate.”
On November 1, 1921, an order was made allowing and settling the above account, but subsequently, in February, 1922, on the petition of William and Bridget Rodgers, father and mother of the deceased and the legatees named in the will, the account was reopened and the executor ordered to “file a new, full, complete and final accounting of the said estate from the time of his appointment as executor and of the condition thereof and of all his actions and doings as such executor.” Pursuant to this order, on May 1, 1922, Thomas filed a supplemental account showing that the estate was ready to be closed and that the property belonging to the same consisted of the balance of the account which he owed, and also the saddle-horse and sheep wagon above mentioned. In this account he also set up a claim of $364 alleged to be due him from the deceased for running the cattle of the deceased during the winter of 1917-18, and $20.44 for taxes paid on the cattle of deceased in November, 1917, and filed therewith a creditor’s claim for that amount. This creditor’s claim was not acted upon by the judge, but the amount thereof was subsequently allowed to Thomas, as hereinafter shown. To the allowance of this account the legatees William and Bridget Rodgers filed certain objections by which they sought to have the executor Thomas charged with interest on the purchase price of the cattle from the time he took them over in June, 1918, until the time of his appointment as executor on July 17, 1919, and from the latter date down to the time of distribution, and also to have the court disallow Thomas’ claim for running the cattle for the winter of 1917-18, and the amount alleged to have been paid for taxes on the cattle in November, 1917. After a hearing, the court held that Thomas was not liable to the estate for any amount of interest, and allowed the claim for running the cattle and for taxes paid, amounting to $384.44, as an offset against the amount due from him to the estate, thereby reducing the same to $1,557.-36. From the decree settling this account the objectors have appealed to this court, and specify as errors the refusal of the court to require the payment of interest by Thomas and the allowance of his claim of $384.44 as above set out.
The only material facts developed at the hearing, in addition to those above recited, were that at the time of Thomas’ appointment as executor in 1918, and for some time subsequent thereto, he was reasonably worth a sum in excess of $150,000, and during that time carried a substantial checking account of $1,000 or $2,000 and was able to borrow from the ■bank up to $25,000, but that, by reason of meeting financial reverses during the winter of 1919-20, he had been reduced to practical insolvency; and that the reason why Thomas had not mentioned his claim for taxes and wintering the 'cattle, and claimed the same as an offset against the price of the cattle when he filed the petition for probate of the will and the other proceedings prior to the final account filed on May 1, 1922, or about three and one-half years after the institution of the probate proceedings, was that he “supposed when the estate was settled up his claim would be allowed, and didn’t suppose it was necessary to mention it when he.filed the petition for letters, and he didn’t know why it had not been mentioned in his first report.”
1. The court made a finding to the effect that the number of the Rodgers cattle purchased by Thomas was fifty-two; that the purchase price was $65 per head, making a total of $3,380; and that this amount was due at the time of Rodgers’ death, on June 22, 1918. Thomas admitted at the hearing that he never segregated this amount from his own funds, and it was established that he continued to use it in his own business down to the date of his appointment as executor, although he was amply able to have made payment at the time. Under these circumstances we think that on June 22, 1918, Thomas became liable as for money received for the benefit of Rodgers, or his representatives, for the sale price of the cattle, and under the provisions of section 7725, Revised Codes of 1921, was liable for interest thereon at the legal rate of eight per cent per annum from that date until the time of his qualification as executor on July 17, 1919.
"When Thomas qualified as executor the sale price of the cattle, with the interest due thereon, as indicated in the foregoing paragraph, was due from him, and he immediately became liable therefor as for money in his hands by section 10133, Revised Codes of 1921.
In paragraph 9 of the objections filed to the final account it is recited that on or about July 17, 1919, Thomas paid all debts of deceased and sent the legatees $490, the total of such expenditures being $1,438, and those recitals are admitted in the executor’s reply thereto, so that this sum should be deducted from the amount of Thomas’ liability as executor on July 17, 1919, to determine the exact amount for which he was accountable after that date.
After his appointment as executor Thomas made no change in the method of handling the funds representing the selling price of the cattle. The testimony at the hearing showed that it was never segregated or set apart in a separate fund, but that Thomas continued to use it in connection with his own resources until it was finally lost in his financial reverses. His only explanation for not paying the money into the estate was that he did not think it was necessary for him to do so.
Section 7889, Revised Codes of 1921, declares that “A trustee may not use or deal with the trust property for his own benefit, or for any other purpose unconnected with the trust, in any manner. ’ ’ And by section 7897, if he does use property ‘ ‘ contrary to section 7889 may, at the option of the beneficiary, be required to account for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to replace it, with its fruits, or to account for its proceeds, with interest.” These sections of the Code are applicable to this case. Thomas, as executor, was liable for the amount which he owedHhe estate as for money in his hands. It was a trust fund. He did not pay it into the estate, but instead of doing so used it for his own benefit, and is therefore bound to account for it with interest. (In re Eakins’ Estate, 64 Mont. 84, 208 Pac. 956.)
2. With reference to the claim of Thomas for taxes paid in 1917 and for running the cattle for the winter of 1917-18, the learned judge of the trial court made a finding to the effect that it was within the agreement between Rodgers and Thomas that the latter should charge for his services in caring for the cattle and that it had always been his intention so to do; that it was merely an oversight on his part that the charge had not been made prior to the filing of his final account on May 1, 1922; that he was not making a claim against •the estate in the ordinary sense, but was merely showing that he owed the estate less than the first figure he gave upon the subject. For these reasons the amount of the claim was allowed as an offset against the sum for which Thomas was accountable to the estate at the time of his appointment as executor. In this, we think, the court erred. It seems to us that the finding is contrary to the facts appearing in the record. At the time he filed the petition for probating the will he made no mention of this account. When he was appointed executor on July 17, 1919, he paid off all claims against Rodgers and no mention was made of his own claim. In the inventory and appraisement which was made and filed on October 8, 1921, and to which Thomas made affidavit, he was particular to emphasize the fact that he owed the estate $1,-941.80, and that it was a debt incurred during the lifetime of Rodgers and had never been paid into the estate. In his first accoupt, which was filed on the same day with the report of the appraisers, he states that at the time of the death of Rodgers he was indebted to him in the sum of $3,380, and “there now remains due and owing a balance of $1,941.80.” It was not until after he had been required by the court to render a new, full, and complete account of all his transactions as executor that any mention is made of a pretended claim which he had against the estate on account of taxes and earing for the cattle during the winter of 1917 and 1918.
Conceding, however, that the executor’s claim against the Rodgers estate was a just one, still it could not properly be allowed by the court at the time it was made, in May, 1922. This claim arose out of the agreement made with Rodgers that Thomas should be entitled to charge for his services in caring for the cattle, i. e., it was a claim arising upon contract. The time for the presentation of claims against the estate had long since expired when this claim was made. Section 10173, Revised Codes of 1921, provides: “All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice [to creditors], and any claim not so presented is barred forever.” And under the provisions of section 10191: “If the executor * * * is a creditor of the decedent, his claim, duly authenticated by affidavit, must be presented for allowance or rejection to the judge, and its allowance by the judge is sufficient evidence of its correctness, and must be paid as other claims in due course of administration.”
Rehearing denied July 11, 1923.
The claim of an executor against an estate must be presented within the same time as the claim of any other creditor, and if not so presented it is barred under the provisions of section 10173. (In re Hildebrant’s Estate, 92 Cal. 433, 28 Pac. 489; Morrow V. Barker, 119 Cal. 65, 51 Pac. 12; In re Long’s Estate, 9 Cal. App. 754, 100 Pac. 892.)
In our opinion the court erred in allowing the amount of this claim to be offset against the sum for which Thomas was accountable to the estate, as well as in failing to hold him liable for interest upon the selling price of the cattle from the time he purchased them until his appointment and qualification as executor, and on the balance remaining in his hands as executor after payment of the sum of $1,438.20 on or about the seventeenth day of July, 1919.
The cause is remanded to the district court of Prairie County, with directions to modify the decree settling the final account in accordance with the views above indicated, and when so modified the decree will stand affirmed.
Modified amd affirmed.
Mr. Chiee Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
[
34,
36,
19,
9,
-28,
-34,
29,
-2,
40,
8,
-28,
-26,
7,
42,
-13,
16,
-49,
-18,
5,
-4,
-37,
-10,
-51,
-25,
45,
-6,
-28,
26,
-5,
-24,
28,
20,
-2,
14,
11,
20,
3,
-66,
19,
17,
63,
-29,
-11,
22,
19,
-23,
29,
-62,
11,
-6,
-6,
-37,
11,
-1,
15,
-5,
-11,
-7,
-25,
31,
29,
-58,
18,
40,
14,
-4,
15,
50,
9,
19,
20,
-55,
-33,
7,
47,
-25,
12,
-59,
-7,
-8,
-11,
-58,
25,
1,
-69,
-23,
-44,
0,
14,
11,
-6,
-12,
0,
-10,
4,
21,
26,
-13,
-67,
-15,
31,
-54,
-55,
47,
41,
0,
-55,
-14,
10,
-1,
-2,
16,
55,
30,
-1,
14,
-42,
38,
-35,
-16,
-20,
70,
13,
-22,
32,
-16,
-53,
42,
29,
32,
35,
-11,
8,
-3,
-1,
11,
-80,
-41,
-85,
-37,
30,
23,
-10,
33,
21,
12,
-29,
-48,
18,
-35,
-25,
33,
19,
-3,
42,
10,
4,
17,
-37,
-17,
40,
-51,
57,
-9,
6,
16,
-13,
11,
-59,
14,
-21,
23,
-65,
-13,
69,
51,
5,
-16,
-13,
-8,
-6,
20,
-47,
-37,
10,
13,
51,
56,
-9,
-4,
-54,
-6,
36,
-52,
-50,
18,
30,
-10,
-11,
55,
15,
-12,
9,
-3,
-7,
-1,
41,
20,
14,
-18,
19,
-48,
-6,
15,
-48,
-12,
-67,
-26,
-21,
-26,
32,
11,
-15,
42,
71,
-27,
42,
-11,
-26,
-9,
-71,
-1,
36,
33,
-14,
-17,
-22,
-44,
-70,
5,
-15,
-49,
7,
3,
10,
2,
-30,
-28,
13,
-7,
7,
0,
1,
28,
26,
6,
22,
1,
4,
-22,
6,
22,
0,
64,
21,
-23,
-17,
-32,
27,
-3,
29,
-12,
54,
-5,
-22,
-30,
24,
-39,
18,
-31,
-17,
-29,
-63,
46,
-15,
-18,
-9,
-26,
-37,
0,
9,
-57,
-3,
7,
3,
-22,
-3,
-17,
9,
-28,
9,
0,
24,
24,
-18,
21,
-66,
-32,
6,
-11,
-35,
-5,
-4,
6,
58,
23,
5,
55,
30,
37,
15,
14,
32,
12,
54,
41,
-15,
-32,
14,
67,
41,
-20,
-19,
47,
-78,
-11,
82,
16,
3,
5,
25,
-39,
37,
-5,
-40,
-1,
12,
5,
-13,
-1,
3,
80,
15,
27,
-38,
4,
47,
9,
-16,
20,
21,
-31,
-20,
63,
-21,
-16,
-52,
-32,
-16,
-28,
37,
63,
39,
16,
13,
65,
15,
-3,
-30,
22,
-45,
10,
0,
18,
22,
20,
34,
14,
-13,
33,
0,
-15,
-26,
46,
43,
30,
-9,
-47,
-43,
-32,
-58,
17,
-7,
-4,
-22,
-12,
-13,
-26,
-11,
-13,
31,
13,
38,
-22,
1,
13,
-19,
12,
8,
7,
22,
26,
18,
46,
-1,
-18,
-31,
29,
-100,
-39,
43,
-9,
-17,
1,
9,
-16,
-24,
64,
0,
-21,
-37,
51,
25,
37,
-36,
2,
-22,
-17,
75,
-43,
38,
26,
10,
51,
-27,
7,
65,
-50,
-21,
-28,
-12,
9,
42,
-35,
7,
7,
-1,
-4,
61,
10,
-53,
18,
3,
-11,
21,
-13,
7,
-27,
-19,
-56,
-22,
-55,
-13,
8,
8,
0,
-33,
-45,
4,
0,
32,
33,
-17,
-44,
-11,
-22,
4,
-5,
35,
-32,
-12,
-29,
27,
3,
-56,
-18,
33,
-77,
-46,
-3,
68,
-35,
-3,
23,
7,
22,
6,
16,
24,
3,
40,
6,
-44,
15,
-12,
27,
24,
-8,
44,
-23,
-62,
60,
6,
-40,
0,
-28,
51,
-1,
-42,
-68,
0,
-50,
56,
-2,
-13,
19,
17,
13,
3,
23,
-3,
-66,
24,
54,
28,
-45,
-23,
5,
-27,
39,
21,
25,
-40,
2,
11,
-95,
-27,
-4,
-26,
-24,
-9,
34,
42,
10,
48,
-13,
25,
-54,
-27,
-1,
39,
18,
-30,
-1,
21,
-3,
33,
6,
-32,
9,
34,
1,
-32,
52,
-36,
4,
-1,
42,
-62,
-4,
-45,
-29,
4,
-4,
-36,
13,
-2,
-4,
21,
63,
-33,
68,
25,
3,
-12,
-2,
15,
-60,
26,
-36,
-27,
-33,
-11,
-12,
4,
-34,
-4,
-24,
19,
31,
21,
10,
-4,
14,
-10,
36,
-36,
-21,
-12,
-38,
-16,
-2,
38,
-21,
5,
-7,
-28,
-12,
29,
4,
-24,
-5,
-14,
9,
-69,
22,
63,
-35,
52,
8,
66,
-1,
-11,
7,
-8,
29,
24,
20,
28,
42,
56,
2,
-2,
-30,
11,
3,
16,
-15,
38,
8,
-2,
-2,
34,
69,
50,
-37,
40,
-18,
-14,
3,
0,
28,
-27,
38,
-10,
11,
30,
2,
-24,
-11,
35,
-5,
-46,
61,
28,
35,
-45,
-21,
-40,
0,
-23,
-20,
9,
28,
-10,
-15,
72,
-44,
-6,
-28,
-20,
-30,
-22,
-24,
13,
16,
-38,
23,
-53,
39,
-28,
31,
-1,
34,
-9,
23,
-53,
4,
-21,
4,
-37,
-15,
0,
62,
-45,
18,
-11,
15,
-7,
31,
18,
34,
33,
-10,
-4,
-35,
-31,
21,
-32,
-26,
63,
12,
-23,
65,
-39,
12,
-8,
0,
-59,
-28,
14,
11,
-60,
33,
-1,
22,
4,
19,
60,
0,
-45,
-23,
-29,
-29,
32,
-14,
7,
22,
16,
28,
-3,
12,
24,
-31,
-51,
2,
0,
7,
18,
-41,
-7,
-36,
29,
11,
30,
-48,
6,
42,
-35,
61,
-32,
-20,
-16,
-22,
-49,
-20,
4,
-18,
-9,
13,
-19,
-34,
87,
0,
0,
39,
-26,
0,
-15,
27,
-8,
-11,
-39,
19,
17,
4,
47,
1,
-33,
-20,
20,
-5,
24,
-23,
4,
50,
-6,
19,
-6,
-4,
5,
13,
-8,
64,
-20,
-6,
-6,
-21,
6,
7,
-5,
-1,
-19,
-22,
4,
-57,
25,
-39,
2,
1,
4,
3,
-15,
-4,
-14,
11,
17,
-39,
34,
-2,
-29,
42,
-3,
-8,
13,
30,
33,
-67,
14,
2,
24,
-22,
-46,
19,
13,
4,
18,
-2,
11,
17,
-9,
-4,
17,
-31,
0,
-22,
43,
13,
38,
23,
-13,
-47,
0,
-14,
-48,
70,
-29,
-1,
-47,
3,
10,
19,
-29,
60,
12,
1,
-8,
13,
-11,
52,
-18,
3,
10,
-42,
-17,
11,
-21,
31,
35,
-51,
66,
-1,
-10,
27,
-37,
30,
-3,
-68,
-18,
14,
19,
17,
11,
33,
30,
43,
-40,
-4,
-15,
37,
-41,
24,
24,
40,
19,
-17,
-11,
-7,
-5,
-18,
-19,
5,
-13,
-12,
47,
-37,
47,
34,
-1,
-23,
21,
-9,
-30,
27,
21,
-41,
-6,
-51,
-12,
-40,
25,
72,
3,
18,
20,
7,
34,
30,
-13,
-29,
-48,
-58,
-27,
7,
-20,
11,
-19,
15,
-66,
-42,
-40,
-4,
-38,
0,
-50,
7,
34,
55,
-41,
45,
-27,
-8,
13,
-1
] |
PER CURIAM.
Relator’s application for Writ of Supervisory Control herein is, after due consideration, denied.
|
[
-21,
-55,
-18,
-13,
48,
-24,
3,
2,
-1,
-38,
-65,
6,
6,
44,
-24,
50,
45,
80,
-2,
-45,
71,
33,
23,
44,
-56,
-46,
56,
21,
35,
3,
-9,
-21,
-42,
24,
-76,
-2,
40,
-36,
-3,
-14,
36,
26,
14,
21,
-34,
-71,
-1,
48,
-14,
-19,
13,
92,
-14,
-13,
-20,
24,
57,
-51,
11,
-33,
-62,
47,
21,
32,
10,
-35,
-72,
-44,
-3,
12,
-4,
6,
14,
0,
73,
-1,
-3,
-10,
23,
-12,
36,
59,
-14,
26,
1,
54,
13,
33,
4,
-2,
27,
-29,
-59,
-14,
-70,
90,
11,
-21,
4,
53,
2,
26,
55,
-52,
-56,
-46,
49,
34,
12,
27,
-11,
33,
-76,
0,
3,
27,
-19,
22,
49,
-23,
-58,
33,
-19,
-22,
44,
32,
0,
34,
13,
-1,
46,
83,
58,
64,
-21,
-62,
72,
-19,
-39,
-45,
-59,
9,
41,
25,
-2,
-74,
30,
32,
-39,
-19,
20,
-21,
0,
35,
7,
32,
-9,
-3,
-1,
40,
47,
13,
-24,
27,
59,
-23,
-3,
-7,
-41,
-26,
11,
61,
-21,
-37,
-75,
-87,
-51,
38,
5,
71,
22,
21,
8,
47,
-14,
17,
-9,
-11,
59,
-36,
-48,
0,
45,
83,
86,
0,
31,
-57,
22,
43,
-30,
72,
-53,
17,
29,
-91,
-39,
-78,
10,
17,
-50,
-59,
-21,
-34,
49,
-68,
34,
47,
46,
43,
15,
9,
-39,
-59,
15,
22,
1,
23,
-3,
-13,
37,
-34,
-52,
22,
47,
-20,
27,
10,
24,
3,
2,
33,
6,
42,
21,
-48,
-5,
37,
13,
-74,
-46,
-14,
26,
-103,
3,
-56,
-108,
26,
64,
-96,
19,
-10,
-33,
-30,
7,
-4,
28,
48,
32,
-45,
-12,
1,
-39,
2,
39,
6,
52,
-32,
28,
15,
-65,
20,
-8,
14,
-36,
-19,
77,
-48,
0,
0,
27,
-10,
57,
-39,
16,
-14,
-47,
-8,
-44,
4,
-36,
5,
-14,
27,
35,
-21,
-14,
-40,
40,
-46,
19,
40,
-13,
23,
-1,
32,
-26,
-76,
6,
-41,
24,
-25,
-19,
54,
-31,
17,
-14,
32,
30,
16,
44,
32,
-45,
47,
4,
41,
-16,
54,
-15,
90,
-57,
78,
-22,
63,
-24,
-44,
9,
-22,
26,
65,
-7,
0,
-39,
-39,
42,
15,
-13,
-32,
-96,
19,
41,
-24,
-34,
-5,
-7,
-39,
27,
41,
-5,
56,
-4,
-15,
49,
-77,
25,
13,
-37,
18,
13,
-74,
-75,
-43,
69,
5,
-13,
18,
-5,
54,
59,
-4,
-3,
-14,
-32,
-4,
-42,
32,
54,
101,
25,
23,
4,
-86,
-77,
59,
40,
-31,
-6,
26,
-22,
-12,
-62,
30,
-27,
3,
-43,
49,
4,
-26,
76,
-21,
-62,
-46,
-89,
39,
-59,
60,
-45,
-15,
-26,
25,
-36,
-27,
-15,
-59,
-48,
-39,
25,
-40,
8,
26,
-8,
17,
-22,
-19,
-3,
-8,
-78,
-78,
-38,
-1,
-14,
4,
-41,
-49,
-21,
-8,
15,
30,
-24,
-4,
-25,
0,
24,
21,
78,
-46,
53,
-3,
-36,
-6,
-19,
-18,
-34,
20,
-28,
-21,
-87,
0,
-16,
53,
-67,
19,
-6,
-41,
-2,
69,
14,
-5,
0,
24,
2,
24,
29,
77,
-85,
-33,
-6,
3,
-15,
26,
13,
55,
-12,
41,
40,
-2,
-30,
-18,
-37,
-58,
60,
-34,
-2,
91,
41,
29,
-4,
32,
3,
4,
-54,
-56,
14,
7,
-30,
23,
-40,
-24,
7,
67,
-65,
-4,
-75,
-24,
27,
-70,
16,
53,
2,
28,
21,
-6,
-53,
33,
15,
77,
-62,
-15,
11,
-36,
0,
-2,
34,
92,
5,
-32,
39,
-48,
-21,
-32,
4,
0,
-33,
32,
-26,
5,
-39,
40,
30,
43,
35,
-34,
-17,
27,
22,
-23,
34,
-17,
26,
-57,
-4,
64,
-8,
-53,
-66,
-56,
-61,
-11,
-15,
-25,
-36,
-19,
-4,
-72,
16,
31,
-48,
1,
-23,
49,
-20,
47,
17,
0,
-5,
-3,
6,
21,
-25,
1,
28,
-28,
-17,
6,
-54,
-15,
-8,
67,
21,
58,
75,
60,
-73,
4,
-33,
-4,
-35,
-11,
92,
64,
-4,
48,
14,
-3,
23,
-21,
-71,
-19,
-23,
-27,
13,
-33,
83,
-46,
-25,
-32,
50,
-39,
27,
35,
82,
73,
28,
-44,
15,
-50,
-33,
-32,
19,
10,
-68,
11,
-37,
15,
-50,
0,
-22,
21,
25,
54,
-5,
27,
89,
-26,
-17,
-75,
83,
-62,
35,
31,
1,
-24,
-81,
-48,
60,
-28,
-5,
-8,
-41,
100,
32,
-56,
18,
37,
38,
18,
-20,
27,
-29,
0,
-8,
-38,
-6,
-7,
-61,
3,
-49,
-95,
-31,
-40,
-34,
-67,
-24,
-19,
57,
25,
-3,
-31,
41,
-23,
-32,
-16,
7,
24,
-29,
-21,
17,
-11,
45,
0,
18,
30,
65,
11,
-12,
-81,
36,
5,
39,
-40,
-10,
23,
-1,
-16,
-10,
-22,
21,
26,
-33,
18,
60,
-3,
-82,
37,
-44,
13,
10,
-46,
80,
23,
28,
-44,
-30,
11,
-31,
49,
-22,
-44,
13,
27,
10,
-38,
56,
13,
10,
43,
9,
-1,
39,
9,
-38,
6,
-19,
53,
37,
39,
-50,
-15,
-5,
-43,
27,
15,
16,
2,
56,
37,
-18,
31,
53,
-4,
5,
-10,
39,
-14,
2,
-8,
-70,
27,
7,
17,
77,
-29,
-63,
59,
-9,
72,
15,
26,
38,
-37,
35,
-4,
34,
-4,
16,
14,
43,
31,
-27,
86,
-36,
8,
18,
44,
-45,
-31,
16,
14,
15,
-46,
61,
-17,
26,
-9,
24,
-37,
-58,
48,
33,
49,
7,
-76,
7,
83,
45,
19,
58,
56,
44,
-12,
-23,
50,
12,
-12,
-1,
0,
3,
-48,
16,
58,
4,
-30,
32,
42,
41,
6,
8,
34,
-14,
65,
-20,
68,
0,
5,
19,
26,
-26,
-34,
-40,
0,
16,
-10,
-47,
19,
83,
-90,
24,
26,
-35,
-15,
-31,
23,
-30,
6,
57,
5,
16,
8,
31,
12,
-30,
53,
-40,
-12,
11,
-35,
-28,
20,
-76,
-23,
-44,
32,
-30,
-60,
4,
-15,
-29,
12,
25,
-83,
68,
-39,
-14,
-11,
-9,
-13,
-20,
29,
-47,
14,
10,
-12,
-8,
-2,
-52,
-32,
-28,
-5,
87,
-20,
-8,
-26,
15,
-45,
-29,
-77,
24,
19,
28,
2,
-25,
8,
-33,
91,
-67,
35,
-3,
35,
-67,
-49,
-15,
13,
18,
-6,
-46,
38,
-39,
-18,
-14,
-30,
11,
47,
24,
-14,
-68,
-51,
-28,
52,
-1,
-89,
8,
3,
6,
-56,
20,
1,
-72,
-7,
17,
87,
31,
34,
36,
-33,
-2,
31,
6,
-4,
22,
1,
40,
64,
31,
21,
31,
-35,
20,
-18,
-28,
-8,
-46,
-32,
49,
-76
] |
MR. JUSTICE JOHN CONWAY HARRISON,
delivered the opinion of the Court.
On December 8, 1978, the Honorable W. W. Lessley granted the Gallatin County attorney leave to file an information accusing appellant, Curtis Cardwell, of committing the offenses of aggravated assault, tampering with witnesses, and aggravated kidnapping. Cardwell pleaded not guilty to all three counts, and trial was set for January 26, 1979.
On January 17, 1979, the State filed an amended information without leave of court pursuant to section 46-11-403(1), MCA. The amended information changed the nature of the aggravated assault charge against Cardwell by adding the allegation that he committed the crime by threatening Jeff Sawyer with serious bodily injury by the use of a knife. The amendments to the original information further altered the information by charging Cardwell with aiding and abetting another in committing the offense of tampering with witnesses rather than actually committing the crime as charged in the original information. The amended information also eliminated the aggravated kidnapping charge.
Cardwell moved to dismiss the amended information alleging that the filing of an amended information without leave of court was unconstitutional, that Count I was duplicitous, and that Count II had been filed without the showing of probable cause. The District Court denied the motion, and Cardwell was tried on the information on January 29 and 30, 1979. A jury found Cardwell guilty of both offenses charged in the amended information. This appeal followed.
The thrust of appellant’s argument on appeal centers around a challenge to section 46-11-403(1), MCA. That statute permits an information to be amended once as to substance prior to trial without leave of court. Appellant contends that allowing substantive changes in an information without judicial examination is unconstitutional. Appellant raises his constitutional challenge to section 46-11-403(1), MCA, under Article II, Section 20, 1972 Montana Constitution. That constitution provision states in pertinent part:
“All criminal actions in district court, except those on appeal, shall be prosecuted either by information, after examination and commitment by a magistrate or after leave granted by the court, or by indictment without such examination, commitment or leave.”
Reading this section of the Constitution broadly, all stages of the information filing process including amendments require judicial examination. Under this interpretation of the provision, section 46-11-403(1) conflicts with the Constitution by allowing an information to be amended without leave of court. As such, the statute would be void. If, however, Article II, Section 20, is construed more narrowly to apply only to the initiation of criminal actions, legislative control of subsequent stages of the information process would be constitutional. Construing the provision in this fashion would allow the amendment without leave of court statute to stand.
To determine the meaning of Article II, Section 20, 1972 Montana Constitution, we must employ the same rules of construction employed to construe statutes. Keller v. Smith (1976), 170 Mont. 399, 404, 553 P.2d 1002, 1006. The intent of the framers of a constitution provision controls its meaning. Keller, 170 Mont. at 405, 553 P.2d at 1006. The intent of the framers should be determined from the plain meaning of the words used. If that is possible, we apply no other means of interpretation. Keller, 170 Mont. at 405, 553 P.2d at 1006.
The question now becomes whether the constitution provision is ambiguous. The State argues that Section 20 of Article II is ambiguous. It contends that the key word in the provision is “prosecuted.” The State asserts that prosecuted can mean either institute or institute and carry forward. The State argues that interchanging these two meanings of the term results in different consequences in this case. If prosecuted is taken to mean institute, Article II, Section 20, applies only to the commencing of criminal actions. Section 46-11-403(1), MCA, which applies to amendments made after an action begins, would be constitutional under this analysis. The second usage of the term, institute and carry forward, would make the constitution provision applicable to all steps in the information filing process including the filing of amendments. Section 46-11-403(1) would be unconstitutional under this interpretation of prosecute as it allows amendments without leave of court in direct conflict with the constitutional provision.
Given this ambiguity, the State contends we must look to other means of interpreting Article II, Section 20, to determine its meaning. We do not find it necessary to do so because we are not persuaded by the State’s argument that the term “prosecuted” is ambiguous. The terms “prosecute” and “prosecution” have long been defined in the judicial setting. As long ago as 1821, Chief Justice Marshall said, “To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.” Cohens v. Virginia (1821), 6 Wheat. 264, 408, 19 U.S. 264, 408, 5 L.Ed. 257, 292. Since Cohens, numerous other courts have also defined prosecute or prosecution to mean institute and carry forward. For example, the Virginia Supreme Court stated:
“In common and ordinary acceptation, according to the definition given by lexicographers, and authorities generally, the word ‘prosecution’ means the institution and carrying on of a suit or proceeding to obtain or enforce some right or the process of trying formal charges against an offender before a legal tribunal.
“In criminal law, it is the means adopted to bring a supposed criminal to justice and punishment by due course of law, and consists of a series of proceedings from the time formal accusation is made by swearing out a warrant, the finding of an indictment or information in a criminal court, the trial, and final judgment. [Citations omitted.]” Sigmon v. Commonwealth (1958), 200 Va. 258, 105 S.E.2d 171, 178.
See also: Florida ex rel. Shevin v. Exxon Corp. (5th Cir. 1976), 526 F.2d 266, 270, footnote 16, cert. denied 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92; Commonwealth v. Fattizzo (1972), 223 Pa.Super. 378, 299 A.2d 22, 28, footnotes 15-16; State v. Harvey (1972), 281 N.C. 1, 187 S.E.2d 706, 717; Thacker v. Marshall (Okla.Cr.1958), 331 P.2d 488, 492, footnote 4; State v. Shushan (1944), 206 La. 415, 19 So.2d 185, 192; State v. Bowles (1905), 70 Kan. 821, 79 P. 726, 728.
In Montana we have not yet been so explicit in adopting a definition of “prosecution” or “prosecute.” However, we did speak to the issue in Rosebud County v. Flinn (1940), 109 Mont. 537, 98 P.2d 330. There, we held that while the term prosecution was not broad enough to encompass investigation before filing a complaint or information, the term was broad enough to take in the trial and other proceedings previous to trial. 109 Mont. at 541-42, 98 P.2d at 333-34. Although Rosebud County does not specifically state which parts of the prosecution of a criminal action are included in the “prosecution” of the action, the broad language used to define prosecution indicates Montana intended to adopt the general definition of prosecution that would include amendments to a criminal information.
The above analysis illustrates the clear and unambiguous meaning of Article II, Section 20, 1972 Montana Constitution. All criminal actions prosecuted — initiated and carried forward — by information must be examined and committed by a magistrate or must be carried forward after leave granted by the court. Thus, all stages of proceeding by information including amendments to the information must be reviewed by the court. Any statute that allows for amendments without leave of court conflicts with this constitution provision and must fall. Section 46-11-403(1) allows for amendment of criminal informations without judicial supervision. The statute, therefore, conflicts with the Constitution and must be declared invalid. We now so hold.
In declaring the substantive amendment without leave of court statute unconstitutional, we do not intend to totally preclude substantive amendments to criminal informations. It has long been held that an information can be amended both as to form and substance. United States v. Smith (D.C.Pa.1952), 107 F.Supp. 839. On amendment of an information, however, certain procedural safeguards must be imposed. The above discussion indicates amendments of substance can only be filed with leave of court. This safeguard is necessary not only to comply with Montana’s constitutional requirements, but also to ensure a defendant receives a neutral determination of probable cause for detention under the amended charges. See Gerstein v. Pugh (1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. Another procedural safeguard involves notice to the defendant. One function of an information is to notify a defendant of the offense charged, thereby giving the defendant an opportunity to defend. State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163; State v. Heiser (1965), 146 Mont. 413, 416, 407 P.2d 370, 371. This function of the information cannot be dis-penced with when the information is amended as to substance. The defendant must be notified of the change and afforded a reasonable time after the amendment to prepare a defense. Further, when an amended information is filed substantively changing the charges against a defendant, the defendant should be arraigned under the new charges. State v. Butler (1969), 9 Ariz.App. 162, 450 P.2d 128, 131; Hanley v. Zenoff (1965), 81 Nev. 9, 398 P.2d 241, 242. See also, State v. De Wolfe (1904), 29 Mont. 415, 417-19, 74 P. 1084, 1085. We see no bar to substantively amending criminal in-formations if these procedures are followed.
Having found the amendment without leave of court statute unconstitutional, we are constrained to dismiss the amended information filed here. Section 46-11-403(1) being unconstitutional, the amended information should have been dismissed by the District Court on the original motion by Cardwell, and he should not have proceeded to trial on the charges in the amended information. Since the District Court failed to dismiss the amended information, we must do so now. However, in ordering the dismissal of the amended information, we do not mean to preclude the State from refiling charges against Cardwell with proper judicial supervision. We see no merit to Cardwell’s argument that the State did not have probable cause to file any charges against him and are reversing this conviction based solely on the District Court’s improper ruling on the constitutional claim.
The cause is reversed and the amended information against defendant ordered dismissed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
12,
-3,
-5,
-6,
-38,
-30,
-47,
-21,
-70,
70,
34,
-32,
8,
-77,
29,
-15,
-43,
0,
70,
-8,
15,
-10,
-25,
28,
3,
-7,
13,
36,
-53,
-26,
29,
93,
45,
-14,
3,
-17,
34,
37,
-14,
-5,
55,
-24,
15,
-15,
-12,
0,
-14,
80,
-5,
3,
-9,
-14,
4,
-6,
-2,
4,
-5,
-76,
-36,
66,
-57,
18,
28,
1,
-29,
-82,
17,
-11,
6,
-63,
8,
0,
-31,
-12,
-17,
24,
30,
-52,
-7,
45,
-20,
3,
-38,
-20,
28,
-22,
22,
-45,
60,
37,
-13,
-11,
-29,
-33,
3,
-33,
-9,
-61,
39,
-24,
-12,
4,
51,
48,
25,
3,
-55,
4,
8,
13,
-56,
2,
-16,
-64,
-29,
-38,
-17,
-1,
9,
-21,
24,
35,
35,
39,
-53,
-27,
2,
-8,
13,
12,
-67,
-12,
18,
-6,
-24,
31,
-16,
-32,
46,
-18,
18,
-13,
37,
-70,
22,
38,
-28,
5,
1,
25,
-33,
21,
41,
63,
-10,
2,
-2,
-5,
-30,
-2,
9,
-10,
-7,
-49,
9,
56,
-42,
-22,
-59,
-45,
-21,
-18,
-18,
57,
33,
19,
-21,
32,
13,
-15,
-19,
9,
33,
-54,
-9,
58,
15,
-40,
21,
11,
-3,
-9,
-26,
-49,
40,
28,
-13,
-15,
21,
-48,
27,
4,
45,
-24,
0,
15,
6,
-3,
53,
-44,
-19,
19,
-10,
-9,
-27,
7,
40,
-10,
-34,
-12,
-71,
15,
-11,
30,
1,
20,
29,
-15,
-47,
-24,
-4,
60,
14,
-58,
-32,
-9,
-43,
-80,
30,
17,
-23,
-54,
35,
15,
87,
17,
5,
-26,
-9,
-34,
42,
4,
-8,
27,
17,
48,
49,
-29,
-28,
-23,
-34,
5,
21,
31,
-38,
-14,
36,
-14,
-30,
25,
-10,
-31,
43,
3,
-40,
3,
-14,
-1,
13,
-20,
-17,
15,
0,
56,
-5,
-12,
-62,
62,
0,
17,
-64,
-43,
-49,
-30,
0,
-17,
50,
-32,
0,
-21,
34,
10,
0,
-12,
-76,
-26,
6,
-7,
33,
-18,
43,
94,
-75,
-35,
0,
-37,
17,
18,
24,
-102,
-4,
-10,
61,
-1,
-8,
2,
41,
-16,
-63,
6,
33,
-11,
-12,
-27,
42,
-18,
33,
8,
23,
39,
8,
-66,
29,
-13,
-35,
58,
-14,
50,
-39,
-36,
25,
-16,
-9,
-4,
-39,
-8,
-72,
-40,
31,
-70,
-9,
12,
-22,
-54,
-5,
8,
-17,
0,
-15,
-5,
-36,
-35,
30,
-21,
-20,
51,
39,
-16,
-16,
9,
-24,
-2,
-26,
-24,
45,
10,
22,
-33,
38,
15,
-35,
-26,
-1,
16,
28,
-7,
7,
25,
65,
17,
5,
-15,
24,
15,
-28,
-46,
-16,
17,
-10,
10,
44,
32,
8,
20,
-21,
3,
-4,
-12,
5,
1,
-11,
-42,
-9,
-45,
-3,
-12,
5,
40,
-6,
-31,
43,
-4,
-28,
-28,
-6,
8,
-35,
20,
11,
-2,
-20,
-26,
-44,
5,
23,
-44,
1,
-19,
22,
5,
-4,
28,
10,
-64,
30,
61,
30,
14,
-32,
-65,
26,
24,
-17,
5,
63,
-17,
-63,
-58,
8,
26,
25,
12,
-56,
5,
-40,
13,
-6,
28,
-13,
-54,
15,
-23,
-27,
20,
19,
3,
0,
18,
51,
0,
5,
-10,
32,
28,
-19,
52,
-27,
-31,
-25,
-11,
-14,
-53,
-55,
-6,
27,
-1,
-6,
27,
2,
46,
19,
48,
13,
-27,
-14,
-13,
40,
-46,
-24,
-16,
41,
6,
19,
-11,
-50,
14,
-27,
-22,
8,
-14,
1,
19,
-5,
26,
27,
12,
-15,
30,
-1,
12,
88,
-9,
24,
15,
38,
-56,
55,
17,
28,
7,
31,
2,
-1,
-8,
-23,
-24,
-28,
24,
-6,
15,
29,
29,
-4,
24,
-5,
29,
-57,
7,
-32,
-30,
10,
37,
-45,
6,
-22,
20,
36,
-19,
-14,
42,
17,
12,
7,
-8,
-51,
-56,
8,
2,
-4,
25,
-13,
-44,
2,
-5,
0,
29,
-12,
-74,
-57,
28,
16,
-26,
25,
42,
47,
20,
81,
-24,
6,
3,
-26,
-9,
16,
19,
-19,
44,
-44,
-64,
-36,
0,
-12,
-14,
49,
-2,
4,
-20,
-58,
-9,
-11,
-25,
-32,
-28,
-13,
-10,
18,
-32,
0,
17,
13,
-5,
-11,
52,
36,
12,
10,
28,
17,
-23,
-16,
-26,
20,
28,
-47,
-37,
-13,
25,
54,
80,
40,
-22,
50,
20,
-24,
-12,
26,
48,
23,
-11,
66,
-24,
54,
-19,
-23,
-16,
39,
-33,
-10,
-39,
70,
0,
2,
-23,
24,
22,
18,
1,
-26,
-1,
-18,
9,
54,
-22,
19,
8,
24,
-40,
18,
-43,
-42,
-12,
0,
-6,
37,
-8,
26,
12,
-58,
-22,
-20,
6,
-33,
25,
-15,
-14,
-18,
-58,
-35,
24,
-1,
-4,
-39,
43,
0,
11,
-9,
59,
-8,
34,
43,
-17,
-5,
-27,
-16,
28,
30,
-13,
-20,
7,
40,
63,
19,
-68,
10,
9,
17,
14,
3,
-35,
0,
42,
51,
60,
2,
46,
-46,
50,
31,
35,
-5,
-30,
66,
31,
29,
-22,
-43,
-22,
-14,
20,
24,
27,
10,
-1,
44,
9,
-26,
20,
0,
-27,
-6,
-42,
55,
26,
-49,
-10,
13,
17,
-27,
53,
-3,
-12,
10,
4,
-17,
-9,
-1,
-7,
-12,
-6,
-11,
29,
25,
32,
48,
45,
14,
0,
-3,
35,
27,
-12,
-42,
22,
27,
-13,
-36,
-55,
-41,
-13,
-24,
-58,
15,
-17,
-4,
-4,
31,
-45,
11,
4,
19,
-6,
-11,
25,
17,
-30,
38,
3,
-52,
10,
-18,
20,
-1,
-36,
14,
-3,
23,
27,
38,
0,
71,
-8,
17,
68,
-75,
-2,
-26,
5,
31,
-29,
-10,
19,
45,
53,
-3,
-9,
-21,
-53,
75,
-34,
-78,
38,
-25,
-31,
43,
67,
-22,
9,
-45,
-19,
1,
5,
-2,
4,
1,
-39,
-13,
-41,
-26,
34,
14,
-20,
46,
-12,
12,
-19,
10,
-9,
12,
-1,
-4,
-24,
55,
-10,
-17,
34,
75,
-16,
70,
-21,
11,
29,
6,
-36,
-10,
16,
27,
17,
-8,
35,
29,
-3,
16,
41,
31,
22,
-4,
-36,
-47,
3,
4,
52,
29,
30,
3,
-50,
27,
22,
23,
-13,
7,
22,
-8,
43,
41,
13,
-38,
49,
-37,
-36,
-2,
-20,
-84,
-66,
-10,
21,
17,
52,
28,
5,
19,
-32,
-20,
48,
-20,
-15,
-20,
-29,
-19,
-3,
9,
-6,
0,
-44,
10,
11,
30,
56,
7,
29,
-5,
-42,
-38,
8,
-1,
13,
36,
35,
5,
1,
18,
-11,
17,
-29,
-65,
-9,
3,
33,
16,
-36,
-6,
-14,
2,
53,
-11,
-6,
-43,
0,
-35,
8,
-4,
25,
-8,
-37,
0,
-48,
-47,
52,
8,
57,
-62,
11,
-54,
27,
-12,
0
] |
MR. JUSTICE HARRISON,
delivered the opinion of the Court.
This is an appeal from a judgment finding C.M.S. a dependent and neglected child and giving permanent custody with the right to consent to adoption to the Department of Social and Rehabilitation Services of the State of Montana.
C.M.S., a minor child, was born in Butte, Silver Bow County, Montana, on July 9, 1975. Her mother, at both the time of conception and delivery, was confined to the State Hospital at Warm Springs, Montana, having been acquitted of the charge of homicide by reason of a mental defect excluding responsibility. The name of the father is unknown, and this is reflected upon the child’s birth certificate.
Following the birth of the child, the mother was returned to the State Hospital at Warm Springs where she has been and is still confined. The child was placed under the protective guidance of the Butte-Silver Bow Office of the Department of Social and Rehabilitation Services. Immediately following her birth, on July 11, 1975, the Department placed the child in a foster home, licensed by the State of Montana, to insure that the child should receive proper care. The child has remained in this same home for over 3Vs years at the time of hearing, and at this point, over 4 years. The home provided for the child has four other children and is the only family unit the child has ever had.
During the 3% years prior to the hearing, the Department of Social and Rehabilitation Services (SRS) sought on three occasions to acquire permanent custody with the right to consent to adoption. On each occasion, SRS’s petition was objected to by the guardian of the biological mother upon the grounds that she was mentally incompetent, was confined at the Warm Springs State Hospital, a disability which prevented her from caring for the child.
The Honorable A. B. Martin of Miles City, Montana, made an order following acquittal of the mother on homicide charges by reason of mental defect excluding responsibility, that James B. Hathaway be appointed as guardian of the person and the estate of the mother, and counsel was approved by that court for the guardianship.
On November 23, 1976, SRS filed this petition in the District Court of Silver Bow County for permanent custody of the child with the right to consent to her adoption. After notice was given to all concerned parties, a series of hearings were held to determine whether SRS should be awarded the permanent custody with the right to consent to adoption. At these hearings, Leonard J. Haxby appeared on behalf of the mother. John R. Carr was retained by the mother’s guardian, James Hathaway of Miles City, to represent the interest of the guardian in the proceedings. James E. Purcell was appointed by the court as attorney for the minor child. Michael E. Wheat, assistant deputy county attorney, appeared for SRS, and Dolphy O. Pohlman represented the foster parents.
At a hearing on December 21, 1978, after all parties had been properly served and were present in court.and represented by counsel, a motion was made by appellant’s counsel that the court lacked proper jurisdiction over the matter. The hearing was con tinued so that additional time could be taken to determine the restoration capacity of appellant, who at that time was making an effort to be released from the State Hospital and restored to capacity. The court ordered that the hearing resume on February 15, 1979. On that date the hearing was resumed, and appellant again objected to the jurisdiction of the court. The court overruled the objection and proceeded to a final hearing. From the evidence adduced at the hearing, the court found that C.M.S. was abused, dependent and neglected and granted the petition of SRS for permanent custody of the child with the right of adoption in the State.
Two issues are raised by appellant:
(1) Whether the District Court lacked jurisdiction to hear the matter because appellant did not consent to the proceedings?
(2) Whether the findings of the court that C.M.S. was abused, dependent and neglected were supported by sufficient credible evidence?
Regarding the first issue, appellant maintains that consent was a jurisdictional prerequisite to the proceedings in the instant case. Appellant argues that SRS’s petition was, in effect, a petition for adoption and under section 40-8-111, MCA, consent is required for adoptions. Before the court could grant SRS custody of the child with the right to consent to her adoption, appellant contends that SRS had to obtain either her consent or that of her legal guardian. Without such consent, the court lacked the necessary jurisdiction to proceed.
In answering this argument, we note first that appellant is correct in asserting that, as a general rule, parental consent is required for adoptions. Section 40-8-111, MCA. In this case, however, the consent of appellant or her legal guardian was not necessary for the court to obtain juristiction. The petition filed by SRS was not for an adoption but was for a declaration of dependency and neglect. Chapter 3, Title 41 of the Montana Code Annotated provides that children may be declared dependent and neglected under certain circumstances and that a petitioner may ask for permanent legal custody with the right to consent to adop tion as relief. Parental consent is neither necessary to declare a child abused, dependent or neglected nor to grant permanent custody of the child to persons other than the natural parents. All that is required, rather, is that the court find, upon the basis of sufficient credible evidence, that the child is, within the terms of the statutory definitions, “abused, dependent, or neglected.”
Appellant’s apparent confusion lies with the number of statutory schemes available for the termination of parental rights and the fact that, to some extent, these statutory schemes may be said to overlap. While consent is required under some schemes, it is not required under others. Previously, we have attempted to clarify the relationships between the statutory schemes where others have been confused. We stated in Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156, 1164:
“The confusion of the District Court is understandable. We are able to identify at least five distinct statutory schemes governing the termination of parental rights or the custody of children or both. [Citations omitted.]
“Nevertheless, while there is some overlap in these various procedures as to general subject matter, each is used for a distinct purpose and sets forth specific procedures which must be followed before a valid judgment or order may be issued.”
Here, SRS proceeded under the provisions for declaring a child dependent or neglected. Parental consent is not required under this chapter for at least two reasons. First, requiring consent could conceivably defeat the policy and the purposes of protecting abused, dependent, and neglected children:
“(1) It is hereby declared to be the policy of the state of Montana to:
“(a) insure that all youth are afforded an adequate physical and emotional environment to promote normal development;
“(2) It is the policy of this state to provide for the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection ...” Section 41-3-101, MCA.
Second, it is, strictly speaking, illogical to require parental consent in dependency and neglect proceedings. Such proceedings by their very nature are hostile to the parents and against their wishes.
Even the adoption statutes of this state except the general requirement of parental consent where children are abused, dependent and neglected. Section 40-8-111, MCA, provides in pertinent part:
“(1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
“(a) both parents, if living, or the surviving parent of a child, provided that consent shall not be required from a father or mother:
“(iii) who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child;
“(iv) who has . . . willfully abandoned such child;
“(v) who has caused the child to be maintained by . . . the department of social and rehabilitation services of the state of Montana for a period of 1 year without contributing to the support of said child during said period, if able; or
“(vi) if it is proven to the satisfaction of the court that said father or mother, if able, has not contributed to the support of said child during a period of 1 year before the filing of a petition for. adoption.” (Emphasis added.)
Here, the rights of the natural parents to due process of law were properly recognized. The specific procedures in section 41-3-401, MCA, were complied with. Proper notice was given to appellant and her guardian. The father of the child was not known, is not now known, and has been never named on the child’s birth certificate. Appellant, who was present at the hearing of the District Court, also had a chance to refute the allegations, but she chose not to take advantage of the opportunity. The only testimony presented on her behalf was by her home economics teacher at the State Hospital regarding her ability in the classroom.
We find that the consent or appellant of that of her legal guardian was not necessary for the court to obtain jurisdiction in the instant case.
Turning to the second issue, appellant argues that the District Court abused its discretion in finding that C.M.S. was abused, dependent and neglected because the findings were not supported by sufficient credible evidence.
In addressing the duty of a District Court to make findings in an abuse or neglect action, this Court has recognized that the District Court’s findings will enjoy a presumption of correctness and will not be overturned unless unsupported by credible evidence that would amount to a clear abuse of discretion. In the decision of In re G., Youths in Need of Care (1977), 174 Mont. 321, 570 P.2d 1110, 1112, we stated:
“This Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. [Citations omitted.] Due to this presumption of correctness, the district court findings will not be disturbed on appeal unless there is a mistake of law or finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.”
At issue here is whether there was sufficient credible evidence to support the finding that C.M.S. was “abused, dependent and neglected.” Those terms are defined under section 41-3-102, MCA:
“(2) ‘Abuse’ or ‘neglect’ means:
“(b) the commission or omission of any act or acts by any person in the status of parent, guardian, or custodian who thereby and by reason of physical or mental incapacity or other cause refuses, or, with state and private aid and assistance, is unable to discharge the duties and responsibilities for proper and necessary subsistence, education, medical or any other care necessary for the youth’s physical, moral and emotional well-being.
“(3) ‘Dependent youth’ means a youth who is abandoned, dependent upon the public for support, destitute, without parents or guardian or under the care and supervision of a suitable adult, or who has no proper guidance to provide for his necessary physical, moral, and emotional well-being . . .”
We find that the District Court did not abuse its discretion in finding that C.M.S. was “abused, dependent and neglected” and that there was sufficient credible evidence to support the findings of the court. With respect to the finding of “abuse or neglect,” we take judicial notice of the order filed in this case that appellant was confined to the State Hospital in 1973; that she has suffered from an organic brain dysfunction since birth; that she experiences delusions; and, that her condition is diagnosed as paranoid schizophrenia with no hope of significant improvement in the foreseeable future.
The record also discloses that appellant was present at the hearings held by the District Court regarding SRS’s peition, but made no attempt to personally testify as to her parental fitness. The only testimony presented on behalf of appellant regarding her parental fitness was that of a home economics teacher from the State Hospital who testified that appellant had successfully completed a home economics course, one aspect of which was child development. We believe that, under the statute, appellant’s confinement is a sufficient act of omission which, by reason of physical and mental incapacity, renders appellant unable to discharge the duties and responsibilities necessary for the child’s well-being.
With respect to the District Court’s finding that C.M.S. was a dependent youth, the record discloses that appellant is possessed of a $40,000 estate and that she has contributed in no substantial way to the support of C.M.S. Rather, the support which has been given has been provided by SRS and the foster parents. Finally, the record indicates that appellant, because of her mental condition, could not provide proper guidance for C.M.S.’s necessary physical, moral and emotional well-being.
Appellant is demanding every facet of statutory scheme be severely and strictly scrutinized to protect the rights of the natural parent. However, proceedings conducted under the “abuse statute” demand and provide a certain amount of elasticity to the court. Every case is unique and must be dealt with on its own merits. Absent a clear abuse of discretion the decision of the District Court is to be upheld. There is no such abuse of discretion here.
The District Court in all such hearings has an obligation to balance the rights of the mother and the child. And while the appellant’s rights are of great import, it is not an absolute right. In a recent matter from the District of Columbia, Matter of the Adoption of J.S.R. (D.C.1977), 374 A.2d 860, 863, the court held:
“The right of a natural parent to raise one’s child is a fundamental and essential one which is constitutionally protected. [Citations omitted.] However, it is not an absolute one. The state has both the right and the duty to protect minor children through judicial determinations of their interest. Id. To this end, the state has a substantial range of authority to protect the welfare of the child. [Citations omitted.]”
See also Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, 577; Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156, 1160; Boyer v. Boyer (Ohio 1976), 46 Ohio St.2d 83, 346 N.E.2d 286.
This Court recently faced a similar contention. In the Matter of Inquiry into J.J.S., Youth in Need of Care (1978), 176 Mont. 202, 577 P.2d 378, 381, the Court held:
“We find no abuse of discretion by the District Court in awarding permanent custody to SRS. In determining the custody issue, the best interest of the child is the paramount concern. In the Matter of Henderson (1975), 168 Mont. 329, 542 P.2d 1204. This Court said:
“What is, or what is not in the best interest of the child depends upon the facts and circumstances of each case. The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except upon a clear showing of abuse of discretion.’ [Citations omitted.]”
While it is the function of this Court whenever possible to protect the unity of the family under section 41-3-101, MCA, this is not a factor in this cause. Here the child has never had a viable parent-child relationship with the mother. In fact, the child has never seen or been associated with her natural mother. She knows but one family — her foster home. It is the only family relationship the child has. Indeed, her foster parents have willingly undertaken the obligations of raising this child, and what appellant neglects to realize is that the obligations that are attendant with parenthood have never in any way been assumed by appellant, the natural mother.
This Court in a recent decision, In re G., supra, 570 P.2d at 1114, 34 St.Rep. at 1179, set forth the criteria which will be considered in dependent and neglect cases. There we noted:
“Children have a right under the ‘best interest test’ to receive normal physical and emotional development. By looking at the totality of the circumstances the court may determine what is the child’s ‘best interest.’”
Viewing all the testimony presented, one relevant fact emerges: The child is an essential part of a family. She has developed an emotional and physical trust for her foster parents. The relationship that she has with her “brothers and sisters” can only be developed in a loving environment. This child is undergoing a normal and physical development within a proper family home situation, and it is in her best interest that she remains the same.
The court recognized that there were competing rights between the child and the mother here. The court appointed counsel to represent the child’s interests. After reviewing all of the facts and evidence, there can be but one conclusion — the best interests of C.M.S. can only be served by affirming the judgment of the District Court.
The judgment of the District Court is in accord with its findings of fact and conclusions of law and is affirmed.
MR. CHIEF JUSTICE HASWELL, and JUSTICES DALY, SHEA and SHEEHY, concur.
|
[
-22,
16,
-24,
23,
-18,
-5,
-19,
39,
-14,
-13,
-1,
6,
-9,
-20,
-28,
-42,
-18,
5,
-10,
-27,
-10,
37,
-73,
13,
22,
13,
40,
7,
-42,
6,
-12,
-24,
49,
-21,
-40,
29,
30,
-26,
83,
12,
82,
24,
4,
-33,
16,
16,
0,
45,
-5,
-12,
20,
-14,
27,
-25,
22,
47,
73,
-27,
-58,
-1,
-37,
-5,
1,
36,
33,
-9,
-16,
-12,
47,
-38,
64,
8,
-66,
-5,
37,
2,
15,
-65,
35,
8,
-5,
22,
48,
-15,
11,
-29,
-6,
-15,
-40,
40,
11,
18,
-15,
-26,
-25,
44,
-15,
-53,
-12,
-39,
-27,
-40,
50,
27,
27,
-9,
-31,
6,
52,
22,
-23,
11,
-10,
1,
-24,
45,
4,
58,
-26,
17,
-35,
40,
8,
-32,
34,
-32,
-7,
6,
35,
0,
-70,
-31,
31,
14,
-8,
-23,
-18,
-71,
25,
-34,
-36,
2,
41,
-15,
-45,
-19,
-16,
-36,
14,
-53,
20,
2,
54,
62,
50,
-12,
-25,
-4,
-26,
8,
5,
-4,
22,
19,
-15,
-40,
-2,
44,
-41,
-13,
12,
-37,
-35,
10,
-18,
42,
-62,
44,
-39,
1,
-27,
17,
80,
-15,
31,
45,
9,
-31,
23,
1,
-53,
43,
-6,
-21,
-38,
-11,
57,
-53,
-26,
13,
-8,
71,
37,
39,
-39,
2,
-20,
-68,
27,
-96,
34,
29,
-16,
-18,
-30,
-36,
-64,
-5,
-67,
4,
7,
17,
20,
-19,
-34,
1,
0,
43,
-11,
-50,
-1,
36,
13,
5,
11,
51,
-47,
20,
-43,
-21,
25,
-23,
53,
12,
-2,
50,
4,
-17,
-6,
33,
18,
-6,
-3,
67,
10,
-12,
20,
29,
-7,
-33,
8,
-36,
1,
-7,
34,
46,
-16,
-5,
31,
-27,
-9,
12,
61,
-29,
-22,
-27,
25,
-10,
63,
20,
-4,
-2,
23,
27,
35,
-51,
-31,
-8,
-42,
11,
-39,
-13,
83,
-56,
57,
-44,
-15,
-17,
-35,
1,
72,
0,
-32,
40,
19,
-21,
-42,
59,
6,
26,
11,
24,
-18,
-30,
32,
-29,
-22,
-25,
43,
26,
1,
13,
29,
32,
-21,
29,
29,
-5,
-28,
20,
17,
22,
7,
-23,
26,
38,
0,
33,
3,
6,
-6,
28,
3,
-22,
-37,
-18,
24,
6,
-38,
18,
-43,
26,
66,
7,
-54,
13,
-49,
-72,
-9,
-6,
-7,
-36,
-19,
-37,
-9,
24,
46,
-32,
-21,
-49,
-12,
-15,
30,
6,
4,
-13,
58,
18,
-12,
21,
4,
-10,
3,
25,
19,
-44,
-24,
15,
55,
-69,
21,
-35,
5,
18,
12,
-41,
9,
-15,
24,
-66,
-6,
-12,
-11,
-24,
8,
4,
-15,
49,
-9,
-13,
-40,
11,
-7,
28,
26,
-31,
-19,
-65,
-97,
-21,
-8,
40,
37,
-34,
-47,
-29,
7,
-14,
-20,
-3,
27,
21,
0,
13,
32,
-45,
15,
-2,
3,
-5,
3,
-5,
-12,
33,
23,
7,
11,
-27,
34,
-84,
19,
41,
38,
18,
53,
32,
-13,
5,
-74,
-65,
-13,
9,
35,
-14,
15,
-29,
9,
25,
12,
4,
-37,
48,
14,
47,
2,
53,
17,
28,
-43,
-2,
-31,
-28,
-46,
28,
37,
55,
-43,
-27,
-4,
44,
27,
-21,
54,
30,
5,
-23,
-29,
9,
-32,
-66,
7,
-5,
18,
54,
1,
-29,
29,
37,
-107,
3,
33,
12,
-16,
-32,
-50,
-7,
7,
27,
-9,
16,
15,
35,
50,
-28,
9,
-34,
-13,
-20,
33,
0,
1,
43,
-9,
38,
-7,
47,
17,
38,
6,
-34,
17,
-33,
-22,
-67,
-10,
-32,
33,
35,
-41,
21,
33,
-35,
-27,
13,
35,
-2,
-35,
51,
3,
12,
33,
47,
15,
-15,
-31,
-28,
-46,
26,
6,
17,
10,
51,
-15,
-6,
21,
-8,
0,
25,
0,
10,
50,
12,
41,
36,
-67,
-19,
-22,
-13,
20,
21,
-38,
-21,
3,
4,
-58,
12,
3,
-32,
-87,
-45,
-56,
33,
84,
-6,
0,
-4,
24,
-28,
20,
-19,
-36,
2,
25,
-24,
-46,
10,
-3,
-34,
20,
0,
-40,
-30,
41,
12,
-43,
-56,
-63,
19,
61,
-3,
-5,
0,
-61,
0,
28,
-5,
23,
-39,
-10,
-2,
-8,
72,
-24,
33,
-28,
7,
31,
-25,
-8,
-6,
18,
-3,
-72,
-24,
-8,
40,
30,
-44,
-4,
28,
16,
3,
19,
2,
22,
32,
39,
59,
5,
35,
-54,
23,
-33,
44,
-7,
-22,
39,
7,
72,
-18,
-63,
-26,
0,
-36,
14,
2,
22,
28,
14,
28,
-4,
-10,
14,
30,
-22,
-36,
39,
61,
-2,
23,
-25,
-23,
-30,
14,
4,
40,
9,
18,
-2,
6,
-1,
23,
23,
18,
-35,
1,
-46,
23,
-28,
7,
-82,
92,
-22,
15,
69,
-27,
-25,
0,
-26,
4,
-50,
25,
4,
19,
-9,
8,
-28,
6,
25,
-14,
-25,
-7,
-29,
30,
-24,
49,
26,
-18,
-31,
0,
54,
-64,
-7,
-19,
1,
-49,
-11,
39,
-11,
13,
10,
4,
-6,
21,
-3,
36,
9,
-11,
27,
-36,
37,
21,
-35,
6,
1,
-8,
11,
-1,
1,
-74,
-6,
19,
8,
10,
-25,
-19,
12,
-14,
-9,
-2,
-8,
40,
8,
8,
67,
15,
-29,
22,
-36,
-33,
0,
8,
-23,
10,
42,
0,
-38,
6,
-34,
31,
-36,
4,
22,
0,
-30,
-34,
58,
15,
-3,
-9,
72,
-71,
8,
17,
41,
-1,
-34,
63,
3,
-34,
7,
84,
2,
-16,
-36,
-51,
33,
0,
64,
27,
-8,
-36,
52,
-68,
36,
33,
17,
-29,
76,
9,
19,
-2,
4,
58,
3,
-19,
-51,
-27,
25,
40,
-45,
41,
-36,
-28,
25,
6,
71,
-47,
-15,
22,
-37,
-44,
-35,
12,
-40,
-39,
51,
23,
17,
-26,
28,
-28,
33,
27,
41,
-25,
49,
-7,
33,
-42,
-42,
-27,
33,
-24,
7,
8,
-15,
2,
-58,
-33,
-3,
5,
-55,
-49,
1,
-38,
45,
27,
76,
-38,
13,
18,
4,
52,
16,
25,
-1,
-28,
19,
-8,
-1,
-14,
39,
-11,
-20,
-29,
-44,
-18,
-40,
51,
-16,
52,
-54,
-22,
48,
-18,
-1,
44,
-23,
-4,
-12,
-11,
-16,
37,
-2,
16,
32,
-54,
-40,
-25,
17,
-9,
0,
23,
7,
17,
-14,
28,
-53,
35,
-34,
65,
-16,
48,
-31,
-41,
50,
-6,
-1,
16,
-10,
54,
-6,
9,
-34,
-4,
-7,
-1,
20,
-11,
-52,
26,
-31,
3,
-18,
-30,
-49,
-23,
-65,
-92,
21,
24,
22,
-7,
54,
-12,
-12,
-13,
4,
-29,
-33,
-13,
-81,
2,
-36,
-24,
-44,
11,
-48,
-24,
48,
3,
2,
-8,
29,
-18,
-34,
77,
-4,
62,
16,
-44,
63,
-1
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This is an appeal from an order dismissing a complaint which alleged the commission of certain tortious acts in the adjusting and processing of a Workers’ Compensation claim. The order was entered in the District Court of Missoula County, the Honorable Jack L. Green presiding.
The claimant and appellant, William Vigue, suffered an industrial accident injury on March 29, 1976 while employed by one of the respondents, Evans Products Company. After the injury, appellant underwent extensive back surgery and was certified by his physician on February 20, 1978 as totally and permanently disabled. Evans is a Plan I insurer under the Montana Workers’ Compensation Act and employs George Wood, the other respondent in this matter. Wood is a professional adjuster in Workers’ Compensation claims. On July 13, 1978, áppellant filed a complaint against respondents alleging the commission of certain tortious acts in the adjusting and handling of his Workers’ Compensation claim. Among the torts alleged were fraud, conversion, economic duress and bad faith.
Respondents moved to dismiss the complaint upon the ground that it failed to state a claim for which relief could be granted. Respondents contended that the controversy among the parties was within the exclusive jurisdiction of the Workers’ Compensation Court. After submission of briefs and oral argument, the District Court granted the motion to dismiss. Appellant then appealed.
The issue raised for our consideration upon this appeal is whether a claimant, who sustains an injury covered by the Workers’ Compensation Act, may assert a separate action for damages in District Court against an insurer and its adjuster for the commission of intentional torts in the processing and handling of a Workers’ Compensation claim.
In resolving this issue, the focus of our inquiry is on the scope and coverage of the Workers’ Compensation Act and the extent to which its provisions and remedies are made exclusive. The exclusivity provision of the Act states:
“For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act, or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers’ Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency.” Section 39-71-411, MCA. (Emphasis added.)
Under the Act, the Workers’ Compensation Court is given exclusive jurisdiction over all disputes arising from claims. Section 39-71-2905, MCA states:
“A claimant or an insurer who has a dispute concerning any benefits under chapter 71 of this title may petition the workers’ compensation judge for a determination of the dispute. The judge, after a hearing, shall make a determination of the dispute in accordance with the law as set forth in chapter 71 of this title. If the dispute relates to benefits due a claimant under chapter 71, the judge shall fix and determine any benefits to be paid and specify the manner of payment. The workers’ compensation judge has exclusive jurisdiction to make determinations concerning disputes under chapter 71. The penalties and assessments allowed against an insurer under chapter 71 are the exclusive penalties and assessments that can be assessed against an insurer for disputes arising under chapter 71.”
Appellant contends that, while the exclusivity provisions of the Act bar an action in District Court against employers or their insurers for personal injury or death to the claimant, they do not bar an action in District Court against the insurers or adjusters for the commission of intentional torts in the settling of a claim. Appellant relies on several cases outside of this jurisdiction which have upheld a claimant’s right to bring a separate action at law for the commission of independent intentional torts in the settlement of a Workers’ Compensation claim. See Coleman v. American Universal Ins. Co. (1979), 86 Wis.2d 615, 273 N.W.2d 220; Gibson v. Nat. Ben Franklin Ins. Co. (Me.1978), 387 A.2d 220; Stafford v. Westchester Fire Ins. Co. of N. Y., Inc. (Alaska 1974), 526 P.2d 37; Martin v. Travelers Insurance Company (1st Cir. 1974), 497 F.2d 329; Reed v. Hartford Accident & Indemnity Co. (E.D.Pa.1973), 367 F.Supp. 134; Unruh v. Truck Insurance Exchange (1972), 7 Cal.3d 616, 102 Cal.Rptr. 815, 498 P.2d 1063. In these cases, primarily two bases have been offered for the upholding of the right. The first basis is that the acts complained of do not arise out of the employment relationship. Rather, at the time of the commis sion of the torts, the employment relationship has terminated. The insurance carrier is no longer the “alter ego” of the employee and, therefore, is not afforded the protection of the Act.
“The injury for which remedy is sought in the instant case is the emotional distress and other harm caused by the defendants’ intentional acts during the investigation and during the course of payment of the claim. This claimed injury was distinct in time and place from the original on-the-job physical injury which was subject to the Compensation Act. The injury for which recovery is sought in the present actions did not occur while the plaintiff was employed or while he was performing services growing out of and incidental to his employment. As the plaintiff repeatedly and correctly stresses in his brief, this action is based not on the original work-related injury but on a second and separate injury resulting from the intentional acts of the insurer and its agents while investigating and paying'the claim. The Act does not cover the alleged injury, and the exclusivity provision does not bar the claim.” Coleman, supra, 273 N.W.2d at 223.
The second basis upon which the right has been upheld is that the penalty provisions of the various state Workers’ Compensation Act are inappropriate for intentional wrongdoings. Coleman, supra, at 224; Stafford, supra, at 43; Martin, supra, at 331; Gibson, supra, at 223. Rather, the provisions apply to conduct which falls short of bad faith or unintentional conduct, such as cases of mismanagement or deficient administrative practices. They are not appropriate for intentional wrongdoings.
We have had occasion to consider one of the cases cited by appellant in a matter where we addressed essentially the same issue that is now before the Court. That case was Carlson v. Anaconda Company (1974), 165 Mont. 413, 529 P.2d 356. We distinguished the facts of Carlson from the facts of Reed, supra, and held that the provisions of the Workers’ Compensation Act were Carlson’s exclusive remedy. Respondents urge that Carlson is “on all fours” with the instant case.
Carlson was injured in an industrial accident at the Anaconda Company’s Great Falls plant on August 20, 1972. Carlson was rendered permanently and totally disabled. Anaconda was a Plan I self-insurer under the Workers’ Compensation Act. Carlson filed a complaint against Anaconda for failing and refusing to make compensation payments to which Carlson was entitled, and for giving false information to the Workers’ Compensation Division that Carlson was continuing to receive 70% of his regular salary. Anaconda argued that the failure to pay resulted from a mix-up in their records which had since been corrected and payments made. Characterizing the case as a case of mismanagement rather than intentional wrongdoing, we held that Carlson was barred from asserting an action at law:
“Reed, cited by plaintiff, is distinguishable on the facts. There the action at law was against the employer’s Workmen’s Compensation insurance carrier based on independent intentional torts and breach of an express contract to pay total disability benefits by false, fraudulent and perjured means. This is a far cry from the facts here, and the attempted analogy fails.” Carlson, supra, at 417, 529 P.2d at 358.
Carlson may be distinguished from the instant case on the .basis that the facts and circumstances in Carlson give the case a much different character. Whereas the instant case involves allegations of intentional torts or the presence of bad faith, Carlson, as stated earlier, involved a case of mismanagement. The instant case was dismissed at the pleading stage. It is well settled than on appeal all of the allegations of a complaint must be accepted as true in determining the issues involved, realizing of course, that all the allegations are subject to proof through the regular trial procedures. State v. District Court of the Eighth Judicial District (1967), 149 Mont. 131, 423 P.2d 598, 600. It is also established law that a complaint cannot be properly dismissed for failure to state a claim unless it appears for certain that the plaintiff is entitled to no relief under any stated facts which could be proven in support of his claim. Keilman v. Mogan (1970), 156 Mont. 230, 478 P.2d 275, 276.
Treating the allegations in appellant’s complaint as being true for purposes of this appeal, as indeed we must, leads to the conclusion that the District Court acted improperly in dismissing appellant’s complaint. This holding is required by a recent and as yet unpublished decision of this Court in Hayes v. Aetna Ins. Co. (Supreme Court # 14853), -- P.2d -- , where we recognized the right of a claimant to bring a separate action in District Court for the commission of intentional torts occurring during the settlement of a claim. The complaint here sufficiently stated a cause of action under the Hayes rule. As such, it was improper for the District Court to dismiss the case. See concurring opinion in Hayes.
As an aside, we also note that appellant complains in this case that the respondents claimed offsets against appellant’s Workers’ Compensation benefits under Montana’s offset statute, section 39-71-702, MCA. That statute has the effect of depriving a claimant of cost of living increases under the Social Security Act. Recently, in McClanathan v. State Compensation Insurance Fund (1979), 186 Mont. 56, 606 P.2d 507, we ruled that this portion of the statute was unconstitutional. At the time that respondents claimed the offsets here, however, respondents could only have withheld the offset under the impression that the statute was constitutional. Their conduct was lawful and motivated by good faith. As a result, there can be no complaint here.
Accordingly, the action of the District Court is reversed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
-35,
3,
-37,
30,
8,
-24,
26,
-28,
-23,
38,
-59,
76,
39,
-67,
-5,
-23,
-35,
-24,
-11,
38,
14,
-50,
-52,
0,
12,
-15,
-18,
-16,
-16,
17,
-27,
34,
0,
-55,
-26,
-9,
-3,
27,
-58,
9,
26,
53,
48,
11,
-13,
7,
23,
36,
70,
-2,
40,
-11,
-20,
-10,
0,
12,
64,
-15,
-2,
35,
-2,
-45,
74,
-28,
60,
-31,
39,
0,
13,
5,
26,
0,
10,
-9,
8,
-47,
-17,
2,
-18,
13,
5,
-26,
-42,
-52,
-56,
46,
-17,
-4,
-9,
2,
3,
-58,
17,
-7,
-10,
-8,
-1,
9,
14,
9,
-35,
20,
7,
-45,
10,
-11,
-8,
1,
0,
78,
-31,
29,
-68,
-32,
-4,
34,
11,
-20,
-3,
77,
-14,
-6,
0,
8,
-40,
0,
0,
35,
-40,
57,
6,
-7,
-3,
14,
18,
2,
-22,
-14,
-26,
34,
20,
-6,
-15,
-36,
-31,
49,
-34,
-17,
9,
-51,
56,
5,
41,
-7,
14,
-34,
-11,
-34,
79,
-3,
70,
-10,
23,
22,
-45,
35,
9,
4,
-34,
12,
7,
-60,
-16,
-49,
53,
26,
41,
12,
-33,
24,
-45,
-35,
1,
-14,
-25,
-51,
59,
5,
93,
18,
14,
-78,
-44,
-22,
-47,
-28,
45,
38,
19,
-16,
62,
-32,
-4,
25,
4,
42,
26,
22,
37,
5,
36,
-13,
-11,
-49,
25,
14,
21,
-40,
-47,
-47,
38,
44,
25,
40,
-46,
-46,
-38,
-16,
33,
-9,
-31,
-17,
10,
22,
20,
-54,
-13,
-34,
47,
-3,
-6,
-37,
-37,
-10,
0,
33,
-71,
-49,
17,
-23,
19,
0,
19,
63,
-15,
-43,
22,
29,
-43,
-49,
-48,
40,
-2,
18,
43,
-45,
33,
-20,
16,
-4,
-45,
34,
89,
-21,
-7,
-67,
9,
39,
53,
-11,
-26,
-16,
-43,
-24,
-40,
-2,
1,
-17,
-59,
13,
-5,
-43,
28,
-9,
27,
26,
15,
-3,
2,
44,
-34,
-10,
-34,
-19,
-11,
35,
-64,
-34,
42,
-16,
-45,
-42,
20,
-40,
29,
-30,
17,
-20,
12,
-44,
33,
61,
0,
-29,
-20,
-5,
-38,
-18,
4,
-31,
-26,
1,
-12,
23,
15,
-36,
70,
-2,
-24,
-9,
42,
-7,
39,
-32,
-61,
61,
35,
0,
-5,
8,
-7,
0,
43,
-12,
14,
60,
16,
-27,
-10,
36,
35,
36,
-31,
-15,
-7,
-7,
-29,
43,
-19,
0,
-55,
5,
42,
-52,
16,
-6,
-27,
21,
-34,
39,
24,
3,
42,
-78,
-10,
12,
-27,
6,
-31,
13,
-36,
-35,
40,
77,
-30,
66,
-31,
-43,
-41,
55,
46,
30,
-4,
15,
-36,
-67,
28,
-25,
-32,
0,
14,
10,
13,
-55,
52,
13,
47,
3,
-21,
19,
104,
22,
-17,
-23,
33,
5,
1,
24,
-52,
-6,
18,
-3,
24,
1,
38,
-45,
-43,
-6,
-38,
10,
-22,
-33,
-57,
-36,
16,
2,
-1,
64,
42,
-8,
41,
20,
15,
92,
3,
27,
-29,
-4,
-35,
-24,
-1,
12,
5,
-3,
66,
1,
27,
-15,
54,
-6,
8,
14,
-22,
70,
18,
-24,
-10,
-48,
-41,
3,
-9,
5,
15,
39,
-8,
-19,
-6,
37,
35,
31,
2,
-32,
33,
-12,
-36,
5,
-40,
32,
3,
-25,
-60,
-54,
5,
0,
28,
-27,
25,
-41,
-3,
21,
-41,
29,
45,
28,
-21,
54,
3,
-38,
-29,
-30,
7,
-11,
-48,
-15,
-1,
-48,
-46,
5,
57,
-32,
-12,
19,
59,
-14,
20,
26,
49,
29,
-18,
-60,
44,
-30,
6,
8,
7,
-41,
-7,
22,
58,
22,
-21,
-61,
27,
-35,
22,
29,
29,
23,
14,
3,
4,
52,
-19,
33,
-2,
52,
6,
-49,
41,
12,
-82,
28,
-8,
-40,
8,
2,
-42,
-33,
-7,
-6,
14,
-42,
47,
-15,
-48,
-85,
18,
-19,
10,
5,
-7,
-15,
-9,
21,
20,
51,
-16,
29,
-26,
-6,
-26,
-35,
-65,
-5,
0,
20,
-14,
-15,
104,
23,
-65,
43,
-14,
-36,
-14,
4,
-43,
-32,
64,
3,
14,
-14,
46,
-12,
-15,
1,
-26,
-5,
-9,
-18,
-14,
33,
-9,
-44,
23,
26,
23,
42,
-10,
-7,
1,
37,
51,
69,
-20,
-59,
21,
-4,
42,
-68,
28,
19,
-65,
-44,
-19,
10,
47,
33,
-67,
67,
-37,
-4,
29,
-29,
-13,
39,
18,
27,
-25,
0,
83,
26,
26,
0,
66,
-70,
-26,
-4,
-1,
19,
-12,
-26,
28,
11,
-8,
48,
20,
-11,
-3,
-34,
-1,
48,
-36,
-7,
7,
14,
26,
-57,
-40,
-64,
-5,
-19,
-16,
49,
8,
13,
-43,
-48,
5,
16,
9,
-30,
-19,
15,
32,
56,
-43,
-11,
-36,
-98,
-74,
-68,
-28,
11,
24,
28,
17,
-21,
-43,
-4,
-29,
-32,
5,
56,
-9,
-25,
18,
2,
-7,
76,
72,
-10,
-8,
37,
0,
-42,
-10,
4,
37,
-28,
-34,
34,
0,
-18,
36,
-34,
-33,
42,
-6,
-23,
44,
-8,
23,
37,
33,
-21,
-3,
23,
14,
-31,
22,
76,
-20,
2,
-8,
17,
13,
-32,
-60,
9,
36,
-23,
12,
13,
-63,
-16,
2,
0,
-18,
-1,
-45,
12,
17,
-48,
-7,
-66,
-32,
-2,
-34,
-6,
39,
58,
-14,
50,
14,
-47,
62,
-3,
11,
-23,
-29,
-24,
17,
-1,
7,
-50,
-24,
31,
-12,
-3,
-1,
-3,
-33,
-23,
39,
-76,
-23,
-8,
26,
23,
-22,
52,
-39,
35,
4,
50,
26,
-22,
-34,
3,
54,
23,
-24,
22,
73,
-24,
17,
33,
42,
-1,
-36,
-11,
-9,
49,
30,
55,
-10,
-60,
45,
47,
37,
18,
-61,
14,
-12,
27,
-45,
-37,
-12,
14,
-13,
0,
-1,
-30,
-38,
-33,
-26,
-5,
30,
13,
-2,
-10,
-32,
-32,
-53,
1,
18,
-14,
-31,
21,
15,
-22,
-46,
-2,
-14,
-49,
-42,
21,
33,
14,
3,
31,
25,
30,
25,
-9,
5,
-29,
-25,
12,
-10,
-27,
14,
22,
-22,
59,
15,
67,
13,
90,
-36,
6,
39,
-18,
-17,
14,
-1,
34,
-56,
38,
-25,
-1,
27,
21,
48,
23,
-13,
-19,
-64,
15,
47,
18,
29,
-6,
-40,
-9,
20,
-36,
7,
10,
41,
-5,
58,
-5,
18,
4,
17,
13,
-28,
22,
-10,
71,
-33,
56,
8,
0,
21,
-47,
3,
-53,
1,
12,
0,
-51,
-39,
15,
16,
-35,
44,
6,
7,
2,
8,
48,
-37,
19,
-21,
-42,
34,
-42,
-21,
9,
-16,
3,
23,
-23,
-42,
0,
57,
-10,
29,
48,
-43,
-32,
12,
18,
13,
-12,
70,
33,
13,
19,
-38,
-46,
-13,
31,
-41,
25,
-50,
-20,
4,
-3,
26,
2
] |
ORDER
This is a petition for a writ of habeas corpus by a prisoner at the Montana State Prison.
Petitioner alleged that he was deprived of good time as provided by section 53-30-105, MCA. Following the filing of the petitioner on February 26, 1980, this Court issued an order to the Montana Department of Institutions to respond. Its response having now been filed, we direct that the petition be denied.
This petition was heard first on October 4, 1979, by the Honorable John McClernan, at which time petitioner requested additional time to study a motion to quash in the matter. At that proceeding, counsel for the respondent State Board of Institutions indicated that two witnesses of the prison records department, Dolores Munden, supervisor, and Teresa Mannix, were in court and requested that they be sworn and their testimony be presented to the court subject to cross-examination so that they would not have to return at a later time. Petitioner stated that he “did not want to hear their testimony because he had heard their side and was not interested in what they had to say because he disagreed with them.” The matter was set over to another time and came on for a hearing on October 24, 1979, at which time Judge McClernan dismissed the petition for habeas corpus.
Petitioner’s complaint is that he feels that he should be earning some additional thirteen days good time per month for being involved in an educational program. As pointed out by the Department of Institutions, what the petitioner fails to recognize is that upon his return to the Montana State Prison after an escape, he was placed in the maximum security unit of the State Prison and cannot earn the amount of good time that he alleges under the prison rules.
Under Rule P-I(a)(4), petitioner argues that he is entitled to thirteen days per month. The rule, as correctly interpreted by the prison staff, is that they had already given him good time of five days a month for being involved in various activities while he was in the maximum security unit. According to the prison records and as presented to the petitioner, he is not going to be allowed thirteen days good time for attending an educational program while he is being confined in the maximum security unit in the prison. Regardless of how he wishes to interpret the regulations of the statute, it is incumbent upon the prison officials to determine whether or not his behavior and his activities come within the meaning of education.
Under the rules, an inmate can attend the regular school and receive thirteen days per month, which can be increased to fifteen days a month after six months’ attendance; or, he can be assigned to a full-time job and take educational programs in his spare time for an additional three days, or five days after the six-month period.
Petitioner is not enrolled in a full-time school program because he is in maximum security. He is, however, assigned to a job in maximum security and is taking an additional educational program. He cannot, according to the rules, be given credit for a job assignment (ten days per month), attending school (thirteen days per month), and an additional five days per month for being involved in an educational program. The rules are specific that an inmate can earn, at the most, twenty-five days per month. Further, inmates in maximum security can only earn a maximum of twenty days per month.
This Court has recognized and approved the rules for good time as being within the jurisdiction of the State Department of Institutions. See, State ex rel. Nelson v. Ellsworth (1963), 142 Mont. 14, 380 P.2d 886. There, we held as long as the control effected by the institution does not lengthen the total sentence that is imposed by a court, it is not a violation of the inmate’s rights. As previously noted, this inmate escaped from the Montana State Prison, and while his conviction for increased punishment was overturned by this Court in State v. Seadin (1978), 181 Mont. 294, 593 P.2d 451, he cannot be credited for any time served in his original sentence while he was absent on an escape status from the prison.
We find the computations of the state officials are accurate and within their jurisdiction to impose a regulation under the statute. Section 53-30-105, MCA, allows the Department of Institutions and the State Prison to establish the rules for awarding of good time as long as the amount awarded does not exceed the statutory provisions.
The petition herein is hereby dismissed.
|
[
76,
-14,
-12,
33,
27,
-50,
-1,
-22,
-92,
52,
-7,
49,
14,
-71,
-31,
30,
-14,
-22,
14,
-19,
12,
38,
21,
77,
-22,
22,
12,
18,
-54,
4,
3,
-27,
-21,
-86,
16,
-47,
92,
-42,
93,
70,
8,
-37,
-30,
-20,
-25,
-52,
-4,
68,
75,
24,
10,
39,
25,
16,
-3,
8,
7,
-53,
-43,
56,
10,
31,
9,
-49,
-5,
28,
26,
-18,
-32,
-65,
10,
28,
42,
-9,
-1,
11,
64,
-52,
59,
41,
7,
47,
-65,
-33,
18,
1,
-56,
-30,
46,
-30,
-14,
-26,
-64,
-73,
-23,
-7,
-27,
-3,
74,
-28,
-78,
-11,
-30,
-27,
-5,
-34,
-5,
17,
-12,
53,
8,
3,
4,
-21,
-28,
-29,
-37,
-1,
-4,
0,
23,
21,
-6,
22,
28,
-45,
8,
0,
61,
15,
-8,
15,
47,
-20,
-50,
19,
10,
9,
27,
-24,
-56,
-57,
56,
37,
57,
-22,
-34,
-12,
83,
8,
0,
12,
-24,
40,
2,
15,
-32,
52,
-54,
36,
7,
55,
-7,
32,
96,
-38,
-10,
-46,
49,
-55,
-31,
23,
5,
37,
10,
24,
-38,
45,
14,
-18,
-46,
37,
51,
2,
3,
16,
-39,
-5,
-21,
-6,
-63,
20,
52,
-9,
99,
-26,
19,
-8,
2,
-5,
-69,
54,
59,
66,
5,
-16,
20,
-10,
35,
-14,
-22,
-19,
18,
50,
-30,
-36,
9,
10,
-18,
31,
-50,
-27,
4,
3,
57,
23,
41,
2,
-36,
20,
10,
-18,
76,
-50,
31,
-35,
21,
12,
48,
39,
-19,
-2,
31,
-16,
33,
10,
-50,
-19,
-3,
-36,
31,
33,
-1,
-18,
-22,
-12,
37,
13,
-10,
-33,
-15,
-62,
61,
-11,
-69,
6,
-38,
0,
38,
49,
33,
23,
-28,
-45,
-11,
-20,
28,
9,
18,
-49,
37,
10,
-48,
29,
-35,
-76,
-9,
-52,
-49,
-32,
-59,
48,
38,
-17,
30,
-26,
-21,
-5,
-10,
21,
-11,
13,
9,
-26,
-13,
-27,
20,
6,
66,
-38,
63,
19,
-16,
38,
-4,
-90,
32,
-18,
12,
-11,
19,
-7,
15,
13,
12,
-37,
-15,
-1,
20,
19,
46,
-2,
-51,
18,
24,
46,
-22,
4,
21,
6,
39,
52,
9,
-9,
-31,
48,
12,
30,
-57,
-17,
-17,
37,
18,
34,
5,
3,
-53,
-51,
-24,
23,
2,
-66,
-13,
-41,
-2,
-47,
-6,
6,
53,
-63,
-28,
-72,
18,
-44,
12,
54,
-5,
5,
-5,
-29,
-32,
3,
-38,
-29,
38,
-26,
-55,
-30,
68,
-22,
-32,
-5,
-57,
-58,
2,
-13,
35,
4,
40,
20,
5,
-9,
-18,
49,
40,
-67,
2,
34,
-5,
43,
-33,
46,
-10,
81,
34,
-27,
0,
-30,
30,
-78,
-8,
12,
22,
23,
13,
47,
-30,
-15,
-20,
35,
15,
30,
-1,
-20,
-24,
-41,
-8,
-63,
-14,
-10,
22,
-18,
-42,
-3,
34,
25,
-12,
-96,
16,
33,
10,
41,
-69,
-27,
4,
42,
14,
90,
-35,
-45,
-10,
-4,
26,
45,
58,
-15,
-27,
-53,
15,
73,
36,
7,
17,
52,
-29,
13,
-17,
15,
18,
-16,
-37,
-35,
-26,
-20,
65,
32,
3,
35,
-43,
17,
3,
-38,
-12,
75,
-29,
50,
-15,
-17,
41,
31,
-35,
-21,
5,
57,
19,
-37,
46,
-31,
7,
-7,
21,
1,
-3,
31,
-2,
4,
1,
-89,
27,
4,
-34,
17,
48,
-19,
-5,
-9,
-26,
-6,
-68,
-4,
-32,
-8,
-17,
-5,
-7,
-72,
12,
26,
-56,
-2,
39,
7,
16,
32,
43,
23,
-7,
26,
12,
6,
33,
20,
-4,
-7,
-16,
-29,
12,
1,
-7,
0,
0,
3,
-58,
-4,
-41,
10,
-33,
78,
-19,
5,
15,
24,
-7,
3,
-8,
0,
21,
-24,
43,
28,
66,
19,
5,
-26,
-41,
-47,
1,
28,
-3,
24,
-39,
-26,
-32,
34,
10,
36,
-9,
-53,
-9,
31,
3,
27,
-4,
-3,
11,
-22,
-11,
14,
5,
-50,
-64,
-2,
-12,
4,
-94,
13,
-10,
5,
2,
62,
31,
-46,
4,
-20,
-72,
-17,
-20,
-23,
50,
18,
-22,
8,
25,
-35,
-4,
-50,
-37,
8,
-24,
-1,
-61,
33,
9,
-22,
-10,
-14,
61,
12,
11,
-7,
51,
6,
0,
-13,
-29,
14,
-2,
-2,
73,
54,
-17,
18,
-19,
-17,
45,
-13,
9,
18,
22,
48,
13,
33,
-13,
-1,
10,
34,
-49,
-81,
18,
-31,
-35,
-33,
11,
29,
5,
0,
1,
42,
-36,
6,
-2,
7,
60,
54,
66,
-61,
-29,
13,
-4,
117,
-42,
-8,
13,
-21,
-28,
-17,
-45,
-42,
-23,
1,
-88,
48,
18,
11,
29,
-43,
-29,
21,
-8,
-17,
33,
9,
-30,
71,
-7,
-14,
24,
15,
42,
-39,
-3,
-21,
-28,
-33,
-14,
-40,
-33,
3,
16,
-46,
-16,
1,
-32,
-40,
5,
-4,
-28,
-57,
-72,
-9,
40,
-15,
-48,
38,
-35,
8,
9,
-72,
18,
18,
52,
54,
3,
-5,
-27,
-14,
-33,
-14,
56,
13,
32,
-33,
29,
-13,
38,
2,
-23,
86,
27,
0,
-6,
64,
-81,
-33,
7,
-65,
-24,
6,
-10,
-45,
-14,
17,
31,
-7,
45,
8,
-22,
-39,
-35,
-6,
36,
-14,
23,
4,
9,
-45,
1,
17,
-64,
26,
-57,
31,
4,
35,
-29,
-12,
-6,
46,
0,
-16,
14,
-33,
3,
13,
19,
-27,
-5,
3,
10,
8,
0,
28,
86,
11,
38,
-58,
-38,
25,
-12,
-36,
37,
-78,
45,
-32,
-25,
-12,
-13,
-72,
34,
70,
47,
30,
-61,
-14,
-38,
-34,
32,
-50,
37,
-6,
-23,
7,
47,
31,
-11,
5,
37,
-9,
21,
-7,
-20,
-59,
44,
60,
-25,
27,
-12,
59,
23,
12,
6,
10,
21,
12,
35,
-51,
-28,
-8,
-19,
-20,
-37,
-21,
-21,
-21,
-17,
0,
4,
-43,
-36,
-20,
17,
25,
-58,
-26,
12,
20,
26,
-1,
48,
40,
-42,
45,
-60,
-39,
10,
-19,
-18,
27,
45,
-56,
-65,
-16,
57,
38,
0,
20,
-66,
-36,
-8,
73,
31,
-21,
-5,
-71,
14,
40,
51,
-2,
60,
11,
4,
-19,
-27,
12,
-5,
58,
-41,
-44,
17,
-23,
-8,
46,
49,
3,
8,
4,
20,
-48,
55,
-13,
-12,
-8,
-12,
10,
15,
47,
-55,
0,
-71,
-3,
7,
-6,
-74,
17,
42,
52,
8,
-4,
10,
16,
20,
-46,
-11,
-18,
-19,
-13,
22,
11,
-12,
4,
74,
58,
-15,
-6,
70,
-5,
40,
-82,
21,
22,
13,
6,
-6,
11,
44,
-18,
-53,
-19,
4,
-3,
13,
-49,
-17,
-48,
3,
11,
-3,
1,
-16,
14,
-36,
8,
9,
30
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This is an appeal from an order of the Workers’ Compensation Court granting claimant, Clarence Willoughby, a partial lump sum settlement of benefits due.
Claimant is a fifty-eight year old man whose work history consists of holding jobs in heavy labor. He has been employed as a miner, concrete finisher, and bricklayer. In November 1974 claimant was employed as a bricklayer for the Arthur G. McKee Company. During that month he suffered an industrial accident injury while performing construction work for his employer at the Anaconda smelter in Anaconda, Montana. He fell off a scaffold which was located approximately six feet above a concrete floor and sustained injuries to his neck, left arm and left thumb. He has not worked since the accident. Claimant underwent a spinal fusion and surgery to his left elbow and thumb.
At the time of the injury, claimant was earning approximately $9.50 per hour or $380 weekly. He had no education or work experience in any other type of employment, and his formal education consisted of completing grades one through eight.
A petition for compensation was filed with the Workers’ Compensation Court to determine what benefits, if any, to which claimant was entitled. A hearings examiner, Robert B. Sherman, was appointed by the court, and a hearing was held with respect to the petition on April 19, 1978. After the hearing, the examiner entered findings of fact and conclusions of law. The examiner found that claimant was entitled to compensation, as a totally and permanently disabled person under the Workers’ Compensation Act, and that claimant was entitled to compensation for all medical expenses incurred with respect to injuries which were causally related to the accident in November. On September 21, 1978, the Workers’ Compensation Court adopted the examiner’s findings of fact and conclusions of law.
During the settlement of the workers’ compensation claim and following the Workers’ Compensation Court’s order, McKee Company’s insurance carrier, General Accident Fire and Life, made payments to claimant. Claimant also received benefits under the Social Security Disability Act. Pursuant to section 39-71-702, MCA, the carrier reduced claimant’s workers’ compensation benefits by one-half of the benefits received under the Social Security Act. On August 8, 1978, it was discovered that General Accident had overpaid claimant by approximately $8,180.38. The Workers’ Compensation Court ordered claimant to make repayment of that amount at a weekly rate of $25.
Including his liability for repayment, claimant presently receives individual weekly benefits of $96.29 from Social Security and $23.26 from Workers’ Compensation, or $518.85 in total individual monthly benefits. This compares to his monthly salary of approximately $1,650 while he was working as a bricklayer. Claimant also receives two auxiliary benefits for his minor children, who live in Seattle with claimant’s first wife. Claimant was divorced and has since remarried.
On May 13, 1979, claimant petitioned the Workers’ Compensation Court for a partial lump sum settlement. Attached to the petition was a list of expenses to which the settlement, if granted, was to be applied. The expenses were the following:
House Trailer 1,064.83
Refrigerator and TV 195.10
Lot Rental 40.00
Phone 48.04
Power 178.22
Water 17.70
Hospital 55.10
Bernie’s Pharmacy 43.04
Dr. Rotar 15.50
Durrits 36.00
Bill Willoughby-personal loan-brother 375.00
Walnut St. Grocery 60.00
Taxes on House Trailer 423.00
Trailer Insurance 127.00
A-I Ambulance 15.00
Car-monthly payments 8,000.00
New Roof on Trailer 1,000.00
Monthly Reserve 400.00
TOTAL $12,093.53
A hearing was held on August 30, 1979 with respect to the petition. The only evidence presented at the hearing was claimant’s testimony. On September 10, 1979, the Workers’ Compensation Court ordered that the petition be granted in the amount requested. From this order, appellant in this action, General Accident Fire and Life, appeals.
A single issue is presented for review: Did the Workers’ Compensation Court abuse its discretion in granting claimant’s petition for a partial lump sum settlement?
Statutory authority for the conversion of regular periodic benefits payable under the Workers’ Compensation Act to a total or partial lump sum settlement is found in section 39-71-741, MCA. In 1979, section 39-71-741, MCA, was amended to give the Workers’ Compensation Court the authority to settle disputes concerning lump sum settlements where an insurer and a claimant disagreed. Prior to 1979 the sole discretion for determining the amount and advisability of lump sum settlements was vested in either the Workers’ Compensation Division or the Industrial Accident Board.
The general rule concerning the award or denial of lump sum settlements under the Workers’ Compensation Act is well settled in this state. Lump sum settlements are only granted in exceptional circumstances. Where the best interests of the claimant are generally served by paying compensation in regular periodic installments, the conversion of benefits to a lump sum settlement has been recognized as the exception rather than the rule. Utick v. Utick (State Comp. Ins. Fund) (1979), 181 Mont. 351, 593 P.2d 739, 741; Kuehn v. Nat. Farmers Union Co. (1974), 164 Mont. 303, 307, 521 P.2d 921, 923; Legowik v. Montgomery Ward (1971), 157 Mont. 436, 440, 486 P.2d 867, 869; Kent v. Sievert (1971), 158 Mont. 79, 81, 489 P.2d 104, 105.
“ ‘The fundamental basis of workmens’ compensation laws is that there is a large element of public interest in accidents occurring from modern industrial conditions, and that the economic loss caused by such accidents shall not necessarily rest upon the public but that the industry in which the accident occurred shall pay in the first instance, for the accident. [Citation omitted.] Generally, the best interests of the disabled workman or his dependents will be best served by paying the compensation in regular installments as wages are paid. Such payments supply in a measure the loss of the regular paycheck.’ [Citation omitted.]
“ ‘Commutation being a departure from the normal method of payment is to be allowed only when it clearly appears that the condition of the beneficiaries warrants such a departure, but there should be no hesitancy in permitting such departure where the best interests of the parties demand it. [Citation omitted.]’ ” Laukaitis v. Sisters of Charity (1959), 135 Mont. 469, 472-73, 342 P.2d 752, 755.
Lump sum settlements are only granted where there is “outstanding indebtedness,” “pressing need,” or where “the best interests of the claimant, his family and the general public will be served.”
“The criteria determinative of the advisability of conversion to a total or partial lump sum award have generally been held to be ‘* * * the best interests of the claimant, his family and for the best interests of the public * * *.’ Kustudia v. Ind. Acc. Brd., 127 Mont. 115, 123, 258 P.2d 965, 969. See also Legowik v. Montgomery Ward, 157 Mont. 436, 486 P.2d 867. The existence of a ‘pressing need’ and/or ‘outstanding indebtedness’ has likewise been held to be relevant criterion, Kent v. Sievert, supra.” Kuehn v. Nat. Farmers Union Co., supra, 164 Mont. at 307, 521 P.2d at 924.
In this case, we are faced with reviewing whether the Workers’ Compensation Court should have awarded a lump sum settlement to claimant. Where we have considered this issue in other cases, we have stated that the decision to award or deny a lump sum settlement will not be interfered with on appeal unless there has been an abuse of discretion. Utick v. State Comp. Ins. Fund, supra; Sullivan v. Anselmo Mining Corp. (1928), 82 Mont. 543, 557-58, 268 P. 495, 501; Landeen v. Toole County Refining Co. (1929), 85 Mont. 41, 47, 277 P. 615, 617. The findings of the lower tribunal or board will be presumed correct and affirmed if supported by substantial evidence. Newman v. Kamp (1962), 140 Mont. 487, 490, 374 P.2d 100, 102. The decision will be reversed, however, if the evidence clearly preponderates against it. Legowik, supra.
Here, the Workers’ Compensation Court based its decision to award claimant a partial lump sum settlement on the basis of evidence adduced at a hearing. Claimant, the only witness testifying, presented evidence of several outstanding debts. He testified, for example, that he owed an outstanding balance on a TV and refrigerator he had purchased and that he was “behind” on his grocery, phone, water and power bills. A letter from the Montana Power Company was introduced with respect to his power bill. It stated that services would be terminated if claimant’s account was not paid in full. Claimant also presented evidence that payments remained on his trailer house, that additional sums were owed for taxes and insurances, and that expenses had been incurred for the rental of his trailer house lot.
In addition to these debts, claimant testified that he needed money for future expenses. His trailer house roof needed repair, he needed a new washing machine, and he wanted to buy an economy car that was fuel-efficient. He also stated, though it was not specifically mentioned on his list of debts, that he expected to incur a $1,500 dental bill for a set of false teeth for his wife, who did not work because she had heart trouble.
Appellant contends upon this appeal that the court abused its discretion in awarding claimant compensation to pay these ordinary debts and anticipated future expenses. Appellant objects particularly to the court awarding sums for the purchase of a fuel-efficient economy car and the payment of dental bills for his wife’s false teeth. Appellant submits, with reference to these future expenses, that there was no demonstration of “outstanding indebtedness” or “pressing need.”
In considering appellant’s argument, we note, first of all, that several courts have allowed a claimant to pay his past debts with proceeds from a total or partial lump sum settlement. Employers Mut. Liability Ins. Co. v. Hood (1976), 137 Ga.App. 555, 224 S.E.2d 460; Texas Employers Ins. Ass’n v. Trapp (Tex.Civ.App. 1953), 258 S.W.2d 112; U. S. Fid. & Guar. Ins. Co. v. Bradley (1977), 142 Ga.App. 572, 236 S.E.2d 543. Courts have also allowed claimants to use lump sum settlement proceeds to pay installments on automobiles or to pay bills for future medical expenses. See, Bethlehem Steel Co. v. Taylor (1952), 199 Md. 648, 87 A.2d 844; Simpson Lumber Co., Inc. v. Brown (Ky.1975), 520 S.W.2d 313.
Other jurisdictions have denied claimants lump sum settlements to pay past debts. See, Johnson v. General Motors Corp. (1967), 199 Kan. 720, 433 P.2d 585; Gill v. Ozark Forest Prods., Inc. (1974), 255 Ark. 951, 504 S.W.2d 357; Woods v. Sumter Stress-Crete Inc. (1976), 266 S.C. 245, 222 S.E.2d 760. At least one authority has criticized the practice on the following basis:
“. . . If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmens’ compensation had never existed. One reason for the persistence of this problem is that practically everyone associated with the system has an incentive — at least a highly-visible short-term incentive — to resort to lump summing
“The only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purpose of the Act will be best served by a lump-sum award.” Larson, Workmen’s Compensation Law, § 82.71 at 15-572, 573.
This Court has had at least two occasions to review cases where lump sum settlements and past debts were concerned. In Kuehn, 164 Mont. at 307-08, 521 P.2d at 924, we approved a lump sum settlement where proceeds would be applied to remaining installments on a home, a pickup truck and other miscellaneous bills, including attorney fees. In Kustudia, 127 Mont. at 123-24, 258 P.2d at 969, we affirmed the granting of a lump sum settlement where claimant intended to use the proceeds to pay past debts and attorney fees and apply the remaining balance toward future expenses he would incur in his and his family’s move to a more desirable location. The move was necessitated because of his mental and physical health problems.
Apart from this precedent, however, we have stated previously, and reaffirm here, that each case for a lump sum payment stands or falls on its own merits. Utick, 593 P.2d at 741, 36 St.Rep. at 802. With regard to the particular facts and circumstances of this case, we find that there was no abuse of discretion. The Workers’ Compensation Court properly awarded claimant a lump sum settlement. Prior to the award, the claimant demonstrated both “pressing needs” and “outstanding indebtedness.” The award was made in the best interests of the claimant, his family and the general public. The compensation sought here was not, as in some cases, for pursuing a choice in a different lifestyle. See Laukaitis, supra; Malmedal v. Ind. Acc. Bd. (1959), 135 Mont. 554, 342 P.2d 745. Rather, it was sought to satisfy debts which had been or would be incurred for basic necessities. At stake was claimant’s need for shelter, groceries, water, power, medical treatment, and transportation. None of these things may be called luxuries. Claimant presented virtually uncontroverted evidence of his need at the hearing, and we find that the court acted with proper discretion.
As an appellate court of review, we have consistently recognized in cases of this kind that a tribunal or board will be afforded wide discretion in determining whether a lump sum settlement should or should not be granted. Kuehn, 164 Mont. at 307, 521 P.2d at 923; Kent, 158 Mont. at 81,489 P.2d at 105. Where the Industrial Accident Board awarded a lump sum settlement in Legowik, 157 Mont. at 440, 486 P.2d at 869, we stated:
“ ‘The determination of this question requires the exercise of sound discretion. The board is more favorably situated than the court to familiarize itself with the circumstances surrounding the applicant, to consider his needs, and the results which probably will follow action granting or denying the application; the power “must be exercised in conformity with the spirit of the law and so as to best promote the ends of justice.”
In this instance, the Workers’ Compensation Court was in the best position to judge the needs of the claimant. There was no abuse of discretion. Where the solution to the lump-summing problem lies is conscientious administration, we find that the court acted properly.
Accordingly, we affirm the judgment of the court.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
-1,
-9,
-71,
33,
1,
8,
-8,
-37,
23,
-21,
12,
-10,
51,
-57,
5,
-14,
-34,
-15,
-1,
24,
32,
-35,
1,
-1,
-15,
-9,
-22,
-9,
-43,
6,
-25,
-17,
4,
-27,
-44,
9,
4,
-21,
-27,
5,
6,
0,
-16,
-19,
11,
38,
20,
3,
19,
-8,
3,
-5,
-11,
-24,
35,
35,
5,
11,
-25,
9,
-14,
5,
72,
1,
74,
1,
44,
-32,
19,
12,
-29,
15,
32,
-37,
-36,
-25,
-4,
61,
-18,
11,
4,
-21,
-20,
-21,
-29,
51,
-14,
34,
4,
28,
-33,
-59,
36,
37,
-43,
38,
-26,
-1,
-7,
84,
-29,
25,
22,
-29,
59,
-62,
27,
-12,
17,
72,
-8,
34,
10,
36,
-21,
44,
55,
17,
-9,
72,
-23,
19,
-26,
6,
-9,
0,
26,
13,
-4,
24,
-6,
20,
-35,
1,
-25,
21,
-19,
-30,
-19,
17,
1,
-22,
-24,
-17,
-24,
13,
-44,
-27,
46,
-58,
-21,
-26,
70,
-9,
23,
-13,
-21,
42,
36,
-20,
14,
-70,
44,
72,
0,
16,
21,
9,
-4,
15,
30,
-82,
-9,
-89,
17,
51,
100,
-22,
-13,
8,
-77,
-25,
26,
-25,
-6,
-4,
-8,
17,
76,
31,
18,
4,
-54,
-16,
-68,
-27,
72,
-27,
39,
33,
47,
-45,
53,
-6,
-1,
37,
9,
-3,
45,
32,
60,
-14,
10,
-37,
17,
68,
-10,
10,
5,
-44,
23,
25,
-33,
-32,
-36,
6,
-15,
-14,
52,
-47,
-30,
-11,
44,
32,
17,
-12,
-18,
-28,
10,
-18,
-30,
-52,
-61,
-6,
-24,
12,
-19,
-32,
6,
4,
14,
20,
-29,
14,
18,
-1,
7,
44,
-19,
-70,
1,
25,
-13,
47,
22,
-25,
-40,
10,
21,
5,
-18,
14,
94,
26,
-42,
-52,
0,
25,
54,
30,
-16,
-18,
3,
-4,
-15,
-7,
-6,
-35,
-65,
-5,
46,
-73,
61,
-21,
55,
-56,
-61,
-19,
-14,
19,
-33,
31,
11,
-6,
42,
75,
-57,
-10,
34,
0,
3,
-58,
52,
-26,
59,
2,
-22,
14,
-26,
-30,
0,
24,
-29,
-4,
23,
-12,
-31,
-4,
-8,
0,
-36,
32,
-22,
65,
36,
-33,
23,
16,
1,
-11,
12,
-19,
64,
-11,
-74,
20,
-17,
7,
23,
31,
1,
15,
38,
-16,
20,
54,
4,
-24,
-35,
24,
65,
-12,
-5,
-23,
-11,
10,
-49,
-24,
-13,
10,
-20,
27,
64,
-4,
3,
-6,
17,
-11,
-27,
29,
30,
35,
46,
-50,
-70,
-11,
16,
6,
-29,
-66,
-68,
-24,
50,
79,
-36,
70,
7,
-63,
-8,
12,
0,
20,
-16,
-6,
45,
-76,
19,
-3,
-52,
-44,
-38,
12,
-26,
-14,
-15,
-12,
91,
34,
-58,
5,
35,
25,
-6,
-70,
22,
-17,
-7,
13,
-68,
-23,
-4,
0,
21,
-31,
-34,
-50,
-2,
-7,
-32,
0,
-18,
7,
12,
-3,
64,
18,
-21,
30,
45,
-43,
6,
-21,
16,
51,
19,
-16,
5,
-67,
-6,
-29,
-39,
30,
4,
9,
39,
-25,
1,
-5,
59,
36,
0,
22,
13,
0,
32,
-8,
-11,
-10,
-8,
-33,
0,
-1,
-13,
26,
-38,
-43,
-26,
4,
-27,
59,
48,
-72,
-6,
-25,
8,
-3,
-40,
-12,
0,
-38,
-40,
-17,
38,
-26,
52,
-82,
22,
-59,
19,
-2,
-78,
-21,
16,
30,
-8,
-1,
-29,
-9,
32,
44,
21,
-16,
13,
44,
-15,
-38,
-88,
30,
25,
-54,
-25,
-29,
7,
41,
15,
3,
-10,
34,
-49,
-64,
-17,
-33,
-51,
-25,
2,
-40,
-25,
71,
39,
22,
43,
-32,
4,
-10,
63,
-26,
51,
63,
46,
-26,
5,
14,
-21,
35,
-32,
38,
-26,
10,
24,
-2,
-73,
49,
-6,
-17,
-17,
-20,
-19,
28,
-23,
22,
48,
-19,
24,
7,
-83,
-63,
12,
9,
4,
19,
-13,
5,
15,
31,
-12,
1,
-4,
23,
-45,
-14,
9,
-39,
-14,
-20,
13,
17,
0,
4,
78,
-1,
-27,
78,
-13,
-55,
-43,
-51,
-8,
-5,
65,
-3,
54,
31,
31,
-29,
-43,
33,
-44,
5,
-77,
4,
25,
15,
-29,
-14,
19,
0,
-33,
22,
-15,
5,
-3,
5,
26,
54,
-36,
-59,
20,
27,
-43,
-40,
-7,
10,
-71,
-23,
-1,
-27,
28,
7,
-66,
-26,
-34,
35,
36,
-36,
6,
7,
-25,
-26,
20,
19,
9,
25,
-4,
14,
31,
-8,
-14,
1,
13,
-27,
-6,
-49,
55,
32,
-22,
2,
-25,
-7,
-17,
-23,
-18,
51,
-29,
-6,
-31,
38,
48,
0,
13,
15,
-37,
6,
-36,
5,
20,
72,
29,
-29,
11,
7,
-13,
-9,
-28,
17,
20,
76,
-9,
-42,
-47,
-61,
-40,
-57,
-34,
32,
15,
7,
-23,
-9,
-66,
9,
-11,
-7,
-9,
45,
-44,
-44,
-48,
6,
-5,
27,
53,
-14,
-29,
56,
-15,
32,
40,
6,
-2,
-10,
-45,
5,
-8,
-26,
21,
-45,
2,
24,
1,
37,
5,
-26,
-7,
45,
-3,
8,
-3,
-26,
-24,
-44,
17,
73,
11,
8,
-5,
-24,
14,
0,
-50,
-13,
29,
-5,
30,
23,
-72,
-64,
-26,
0,
33,
7,
-80,
8,
48,
-48,
26,
-54,
-27,
0,
-22,
-15,
23,
16,
24,
-5,
53,
-20,
61,
-30,
1,
-4,
-50,
-15,
39,
42,
-21,
-11,
18,
7,
-21,
20,
-8,
33,
-61,
-55,
83,
-34,
-43,
39,
46,
37,
-32,
34,
-24,
3,
55,
36,
31,
3,
8,
-33,
44,
-42,
-55,
13,
35,
23,
-31,
17,
10,
13,
-39,
-41,
15,
43,
-8,
6,
21,
-77,
8,
12,
41,
-3,
-54,
86,
13,
28,
-42,
20,
-7,
-22,
20,
27,
2,
-42,
-80,
33,
-19,
-26,
64,
-17,
-8,
-1,
59,
2,
-16,
4,
19,
15,
40,
29,
-24,
6,
-4,
-43,
-14,
-63,
-41,
45,
22,
-27,
49,
31,
-7,
34,
26,
6,
28,
0,
24,
38,
-35,
0,
-5,
11,
-16,
40,
2,
39,
-4,
35,
-14,
-34,
-7,
18,
9,
-20,
39,
-11,
-68,
22,
-2,
-12,
14,
25,
57,
30,
-3,
-44,
-28,
-37,
-13,
24,
6,
22,
-73,
-34,
17,
-32,
45,
14,
50,
-2,
25,
33,
23,
-15,
9,
10,
29,
-3,
-35,
55,
-15,
45,
61,
-33,
36,
-48,
25,
-54,
25,
0,
-31,
-80,
19,
21,
-14,
19,
5,
-26,
48,
4,
20,
51,
-9,
-43,
-22,
-90,
-8,
21,
11,
38,
-18,
49,
46,
-14,
49,
-27,
32,
18,
31,
-31,
-14,
-2,
-1,
38,
36,
-27,
28,
0,
29,
78,
-43,
-38,
38,
87,
-39,
0,
-34,
-21,
26,
-8,
32,
-10
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The wife appeals from an order of the Beaverhead County District Court modifying the visitation provisions and child support provisions of the original dissolution decree.
The wife contends that the court had no jurisdiction to change visitation rights because the husband failed to file affidavits in support of his petition. Furthermore, she contends that the trial court abused its discretion in reducing child support payments from $ 150 to $ 100 per month. We conclude that the trial court properly modified the child visitation rights. On the other hand, we determine that the trial court did not enter appropriate findings on the issue of child support and also that it failed to comply with the standard set forth in section 40-4-208, MCA. We therefore must remand the child support issue to the District Court.
On May 15, 1978, the husband filed a petition to modify the original dissolution decree. He sought a change in visitation privileges, and also a reduction of monthly child support payments from $150 to $75. On June 6, 1978 the wife filed a motion to dismiss contending that the husband had failed to file supporting affidavits and had improperly served the petition to modify in the form of a summons. On August 22, 1978, a hearing was held and the trial court denied the wife’s motion to dismiss but entered no order. On September 5, 1978, the trial court simply filed a memorandum denying the request, and filed no order.
The wife appealed from this memorandum and we dismissed without prejudice for the reason that no final order had been entered. Later, the trial court entered findings of fact and conclusions of law and adopted the memorandum by reference. On July 17, 1979, the trial court entered an order which incorporated those findings and conclusions.
By its order the trial court modified the original dissolution decree by reducing the child support payments from $150 to $100 per month and requiring the husband to pay an additional $25 each month until all of the delinquent child support payments were paid in full. The trial court also restricted the husband’s visitation privileges by allowing the husband to take the child to his parents’ ranch once every two months. This appeal followed.
The wife contends now that in the absence of supporting affidavits, the trial court had no jurisdiction to entertain a motion to modify the child custody provisions. Furthermore, she contends that the trial court should not have reduced the child support payments.
It is clear, however, that the trial court had jurisdiction to modify visitation. Section 40-4-220, MCA, upon which the wife relies, requires that appropriate supporting affidavits be filed when a change of custody is sought. See Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004. Thus the wife’s reliance on Olson is misplaced. Here, the husband sought a change of visitation rights and section 40-4-217, MCA, is controlling. This statute does not require supporting affidavits. See Lee v. Gebhardt (1977), 173 Mont. 305, 567 P.2d 466; Solie v. Solie (1977), 172 Mont. 132, 561 P.2d 443. Under section 40-4-217(3), MCA, the trial court may modify visitation rights whenever modification would serve the best interest of the child. Accordingly, it was not error for the trial court to modify the visitation rights of the husband.
Neither the wife, in contending that the child support payments should not have been reduced, nor the husband in contending that they were properly reduced, have cited the controlling statute to this Court, section 40-45-208, MCA. Under this statute, the trial court may modify child support payments only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, or upon written consent of the parties. See Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d 929. Since the parties did not consent to the child support modification, the essential requirement is that there be an evidentiary basis to determine that it would be unconscionable to continue the child support payments presently in effect.
Here, there are virtually no findings at all on this issue, let alone a determination that enforcement of the present child support payments would be unconscionable. The only findings are to the effect that the circumstances changed by reason of the wife’s remarriage to another person. Even though the record is replete with evidence as to the financial condition of each party, the trial court made no specific findings as to the wife’s increased ability to support the child or the husband’s decreased ability to pay the $150 per month for child support. In the absence of findings we cannot review the propriety of the trial court’s decision.
It appears that the trial court’s decision turned on the conclusion that the wife had since remarried and that although she was having difficulties in her new marriage, nonetheless the new husband had an obligation to provide her with a home. The trial court simply assumed that the wife’s marital problems would be resolved. But the conditions and circumstances of the parties must be examined and determined at the time of the modification hearing, and may not be based upon mere speculative future conditions or possible conditions. See Scott v. Scott (1979), 121 Ariz. 492, 591 P.2d 980; In re Marriage of Cobb (1977), 68 Cal.App.3d 855, 137 Cal.Rptr. 670. Here the trial court’s findings as to the wife’s marital status and relationship with her second husband are improperly based upon assumptions and speculation. Furthermore, they fail to satisfy the standard contained in section 40-4-208, MCA, that the changed circumstances must be so substantial and continuing as to make the terms of the original decree unconscionable.
The order changing the visitation rights is upheld. But without the required findings on the issue of modification of child support, we decline to rule on this issue. Because circumstances may have changed since this appeal was undertaken, this cause is remanded for another evidentiary hearing and the trial court is further instructed to enter the required findings of fact and conclusions of law in support of whatever judgment it reaches.
This cause is remanded to the District Court.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
-35,
11,
0,
11,
-19,
-25,
-32,
-2,
-16,
-23,
32,
20,
26,
-3,
-30,
-19,
23,
-37,
17,
-16,
-50,
15,
26,
30,
42,
62,
-14,
-28,
0,
6,
2,
-21,
17,
29,
25,
-12,
-18,
21,
24,
48,
-4,
-34,
-4,
-26,
-20,
41,
40,
7,
-30,
3,
-26,
-51,
-21,
21,
35,
45,
23,
-14,
-31,
-5,
-46,
35,
-62,
64,
47,
-34,
34,
19,
47,
-27,
0,
-83,
0,
-47,
25,
-39,
-4,
-2,
-28,
56,
-17,
2,
-1,
-25,
-7,
-23,
6,
32,
-12,
116,
-11,
19,
-33,
15,
-47,
2,
-1,
-70,
-2,
-9,
-6,
-35,
63,
10,
33,
69,
-3,
12,
1,
-2,
11,
23,
-20,
32,
15,
-4,
-27,
-14,
34,
-52,
60,
48,
68,
12,
46,
-38,
-44,
4,
66,
-43,
-59,
41,
38,
-33,
4,
-52,
19,
-38,
25,
-7,
-15,
-16,
1,
-10,
35,
4,
38,
-20,
-18,
-35,
49,
-18,
46,
21,
96,
-60,
-14,
5,
9,
14,
28,
70,
-58,
-1,
9,
5,
-7,
12,
-40,
-47,
61,
-10,
5,
-8,
12,
3,
-24,
-4,
-10,
10,
-7,
25,
-27,
-38,
39,
37,
12,
-49,
-35,
-12,
-12,
13,
-9,
-14,
35,
-11,
28,
13,
35,
1,
-17,
43,
5,
32,
12,
-40,
-3,
-5,
-7,
-17,
7,
9,
-41,
26,
-51,
-20,
6,
-21,
-17,
26,
2,
-30,
36,
-48,
-60,
26,
-16,
-3,
1,
-6,
-3,
21,
-21,
-13,
-37,
70,
-3,
-25,
6,
-3,
0,
-12,
30,
-29,
29,
51,
21,
24,
-13,
8,
8,
32,
-12,
33,
3,
5,
-16,
15,
10,
15,
45,
12,
19,
3,
9,
-59,
23,
8,
5,
2,
29,
-20,
31,
-26,
14,
-20,
-4,
-14,
11,
56,
-22,
7,
11,
36,
20,
41,
19,
51,
63,
32,
-21,
17,
22,
-38,
5,
-6,
17,
-60,
1,
0,
-16,
-36,
-53,
57,
-67,
-33,
-22,
21,
-10,
38,
34,
6,
-60,
-15,
-27,
5,
-24,
17,
14,
-10,
-23,
32,
41,
19,
17,
20,
1,
-9,
-36,
-16,
-6,
14,
-5,
-17,
47,
-32,
-19,
18,
19,
52,
-17,
-29,
-33,
53,
15,
-11,
8,
24,
-23,
-28,
-27,
24,
15,
4,
-71,
-72,
-53,
-67,
-12,
-44,
14,
-27,
-38,
-71,
-33,
67,
59,
27,
-21,
46,
-20,
6,
1,
-7,
4,
18,
11,
2,
37,
-37,
-27,
-13,
-8,
-11,
-8,
-1,
15,
-28,
5,
-3,
36,
33,
15,
8,
47,
4,
58,
-9,
2,
15,
-8,
0,
-6,
20,
-4,
0,
6,
13,
-47,
-37,
-15,
-40,
18,
30,
70,
5,
-14,
-37,
32,
-17,
-34,
6,
28,
-25,
22,
31,
-14,
-65,
17,
21,
-35,
-10,
-12,
14,
38,
5,
27,
2,
-24,
20,
3,
41,
-22,
29,
7,
4,
-24,
-45,
15,
-25,
-16,
-72,
1,
19,
1,
-52,
6,
21,
-69,
-85,
23,
23,
-5,
-4,
15,
-45,
-22,
26,
-42,
43,
-27,
14,
45,
40,
1,
24,
-18,
14,
-2,
-58,
-32,
-21,
-91,
-30,
27,
65,
-55,
-49,
-27,
54,
22,
-23,
37,
30,
21,
-24,
6,
-4,
8,
11,
-6,
-18,
11,
-19,
45,
-4,
22,
25,
3,
0,
14,
-29,
45,
-18,
-28,
-16,
4,
65,
103,
-15,
-14,
52,
22,
-72,
18,
-28,
-4,
6,
-16,
29,
33,
86,
-29,
-37,
-34,
7,
-69,
0,
-4,
-17,
33,
-3,
-24,
-31,
-3,
1,
-1,
16,
8,
3,
29,
-37,
-19,
-2,
54,
28,
-69,
11,
-21,
-51,
39,
-1,
-36,
30,
18,
-3,
-33,
-30,
-29,
14,
25,
-15,
-19,
6,
26,
13,
-21,
-34,
-13,
-28,
15,
35,
-81,
-1,
-20,
-19,
11,
4,
-14,
-43,
-28,
-22,
16,
8,
17,
-28,
-3,
-60,
37,
-3,
16,
25,
10,
15,
-5,
-19,
-16,
33,
-10,
-27,
51,
24,
-40,
-34,
66,
-6,
-7,
-35,
23,
4,
9,
4,
16,
13,
0,
-74,
-36,
27,
-36,
-3,
1,
-35,
79,
-4,
22,
30,
44,
23,
1,
-17,
21,
19,
7,
15,
5,
21,
20,
-32,
-14,
-24,
45,
42,
30,
-11,
33,
-1,
-15,
-33,
12,
39,
45,
-49,
-1,
23,
36,
16,
-46,
58,
-23,
16,
-56,
-25,
15,
52,
-12,
-16,
-12,
35,
32,
15,
-15,
10,
-20,
17,
-42,
-23,
-3,
2,
-2,
25,
5,
25,
5,
65,
-23,
-10,
-4,
42,
-50,
2,
3,
-8,
-25,
-6,
-17,
0,
38,
0,
3,
-44,
-53,
-19,
-11,
-1,
-25,
-46,
33,
-13,
-57,
-8,
-1,
15,
-34,
-4,
-12,
-18,
25,
-10,
-14,
-14,
28,
42,
13,
37,
-29,
-15,
-20,
31,
0,
26,
46,
-48,
-12,
17,
3,
50,
26,
-6,
-32,
22,
34,
-26,
-3,
15,
-81,
46,
47,
-10,
-19,
-3,
43,
35,
0,
87,
-13,
-30,
-32,
-29,
35,
-14,
-17,
0,
50,
27,
-15,
-37,
-17,
-21,
-6,
-116,
-69,
52,
-10,
-46,
38,
-64,
82,
-42,
-14,
3,
45,
-22,
22,
-34,
42,
39,
-25,
-11,
44,
-18,
29,
125,
24,
-41,
24,
24,
-35,
-8,
-4,
53,
6,
0,
6,
21,
13,
-27,
-17,
-21,
-5,
-2,
86,
-60,
54,
1,
37,
-41,
23,
-4,
-34,
24,
0,
23,
48,
15,
-59,
-50,
33,
18,
-23,
-28,
-9,
-7,
-26,
-51,
52,
76,
27,
1,
44,
5,
56,
-2,
32,
14,
-27,
-27,
-64,
21,
-28,
10,
-15,
40,
0,
-22,
-1,
71,
46,
4,
-34,
-4,
3,
-71,
42,
15,
19,
-64,
52,
-30,
-21,
-5,
3,
-21,
-36,
-25,
20,
-54,
48,
27,
-50,
-4,
12,
-3,
41,
-11,
-3,
-6,
-17,
-53,
-45,
-75,
-25,
4,
-15,
-12,
48,
-15,
-80,
26,
-6,
0,
-4,
11,
2,
26,
-23,
-83,
-3,
-28,
-22,
-4,
11,
-11,
-5,
24,
-48,
-1,
-34,
-56,
11,
33,
-7,
-18,
-47,
7,
18,
-51,
-9,
38,
9,
-28,
-10,
33,
-10,
47,
-37,
1,
-30,
-35,
-38,
-17,
-15,
19,
-20,
30,
0,
-9,
-60,
-40,
1,
43,
-39,
68,
0,
-13,
-4,
-37,
66,
28,
-54,
-2,
59,
7,
0,
9,
-8,
4,
54,
45,
44,
-45,
-13,
38,
56,
3,
-21,
-26,
-50,
-56,
-6,
-33,
3,
-23,
32,
15,
26,
-15,
17,
-55,
-5,
0,
-40,
10,
10,
12,
-5,
-65,
-38,
-11,
-39,
43,
29,
48,
38,
-24,
3,
-7,
-32,
23,
-22,
21,
-4,
-40,
-11,
22
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
This is an appeal from judgment after a jury verdict in the District Court of the Eighth Judicial District, County of Cascade, in a negligence action.
The complaint herein consisted of three counts. Count III of the complaint, a claim predicated upon strict liability of the defendant, was dismissed by defense motion prior to trial. The remaining counts were submitted to the jury on special verdict, and the jury returned a verdict involving comparative negligence. Defendant was found to be 65 percent negligent and plaintiff was found to be 35 percent negligent. Total damages were assessed by the jury at $650,000, and the court entered judgment for plaintiff in the sum of $442,500.
Defendant moved for a new trial after judgment was rendered, but the motion was denied. From the final judgment and denial of the motion for a new trial, defendant appeals. Plaintiff cross-appeals.
Defendant, a used car dealer, sold a used car to plaintiff and her husband in late December, 1976. The car in question, a 1971 Dat-sun station wagon, was purchased through one of defendant’s salesmen after a short test drive, during which the car pulled slightly to the left.
Additionally, plaintiff informed the salesman of several minor things she had noticed that were wrong with the car. Some of these were that the horn did not work, poor tires, a wire hanging out of a rear taillight assembly, and that the car pulled to the left. The sales invoice listed that a number of these corrections were to be made.
The salesman also advised plaintiff that they would take the tires off another 1971 Datsun and put them on plaintiff’s car.
The sales invoice indicated an odometer reading of 83,615 miles and a disclaimer in fine print that read: “All used cars are sold on an as is basis with no guarantee either express or implied except as noted above.” Above this disclaimer was set forth the aim of defendant: “To serve you courteously, completely and honestly. To profit, not only in money, but in the good will and friendship of our customers. To improve whenever possible and correct our errors when we learn of them. To do our best every day, in every way, to build an establishment which will be known as the finest in our field.”
No explanation was given to plaintiff pertaining to the “as is” clause.
The 1971 Datsun had a somewhat checkered history. The car was purchased new in 1971 by a couple who lived in San Diego, California. They traded the car in to Melody Toyota, Inc., in 1975. At the time of the trade-in, the car’s odometer registered 85,106.4 miles. However, the car was described to be “in very good mechanical condition.” Through an unknown series of events, the car was acquired by Swanson Sales in California and resold in California to Pierotti Motors. At the time the car was purchased from Swanson by Pierotti, the odometer had been turned back to 41,194 miles.
Pierotti sold the car to a Robert Graff in July 1975. Graff owned the car until it was repossessed in 1976 by Credit Associates.
Graff testified that the car was not involved in any accidents and that there was nothing wrong with the car, except for the tires being in fair condition. However, he also testified that at times he noticed vibration in the steering.
A representative of Credit Associates testified that the Datsun was dirty, junky and dented, that the engine needed a tuneup, and the springs and shocks were shot.
The car was put out for bids and sold to defendant. Neither plaintiff, nor defendant’s salesman, knew that the car was repossessed or that the odometer reading was incorrect. Plaintiff testified that had she known the car had over 120,000 miles on it, she would not have bought it.
Plaintiff took delivery of the car on December 27, 1976, had a C.B. radio installed, and drove it to Missoula a few days later. She experienced vibration in the car and a pulling to the left, but had no real trouble on this trip. She did, however, consult a mechanic about the car, and on two occasions repair work was done. This work involved a tuneup, fixing the speedometer, installing a heater, fixing the brakes, aligning the front-end, etc. On the last occasion, the mechanic recommended on a repair order, “Take the car back, needs lots of work, not safe on the road.” Plaintiff testified that she thought this meant she was to bring the car back for repairs and that she did not think she would be in any danger if she drove the car, except maybe she could be stranded if the car broke down.
Plaintiff drove the car around Missoula until January 21, 1977, when she drove it back to Great Falls. She again experienced shaking and vibration in the car during this trip. On arrival in Great Falls, plaintiff called Dave Fender, one of defendant’s salesman, about the problem and was advised that the car was merely “dieseling” and that premium gas would correct the problem.
The following day, January 22, 1977, plaintiff drove to Chester for an appointment with her doctor. Her husband told her she should probably take the couple’s other car, but she thought she could use her C.B. and get assistance if she had any problems. Plaintiff testified it was a good day for driving, the roads were excellent, and the car handled fine on the way to Chester and all the way back to the point of the accident.
The accident occurred a few miles west of Carter on a good stretch of highway. The car suddenly started to vibrate, and the steering wheel and motor began shaking. The car went out of control, veered into the left lane, swung back to the right, went off the road and rolled over.
Plaintiff was thrown out of the car and sustained severe back injuries, which have left her paraplegic. A driver in the car following plaintiff’s testified she was driving prudently and at about 50 m.p.h. just before the accident.
There is no question that plaintiff was not using the safety belt in her car at the time of the accident.
Raymond McHenry, a consulting engineer, was retained by plaintiff to determine the cause of the accident. McHenry examined the car, viewed the accident scene and discussed the accident with plaintiff. In addition, he removed the wheels, MacPherson struts, and carefully examined the vehicle to determine what caused it to go out of control.
McHenry examined the transverse link (lower control arm) on the right front suspension and found that it was cracked extensively, bent and had four compression marks on it, indicating that the bend had been caused by a tool. He also found that there were four white sidewall tires on the car. All of the white sidewalls turned outward in the normal manner except the right front white sidewall, which was reversed with the white sidewall turned inward. On the white side of that tire there was a tread separation several inches in length, and this tire was out of balance. In addition, McHenry found that the left side motor mount was completely separated and sitting in an unusual position, the stabilizer bar was disconnected, and the left rear brake lining showed lubricant on it which had been leaking since before plaintiff purchased the car.
McHenry performed various tests on a Datsun similar to plaintiff’s, using bent transverse links, disconnected stabilizer bar and disconnected left rear brake to determine the effect on the car’s handling. He also consulted with Dr. James Magor, a metallurgic engineer at North Carolina State University, who ran various tests on the transverse link. He concluded the transverse link had been deliberately bent to an angle of 30° and then straightened to an angle of 20° and, in straightening this link, cracks were formed. These cracks extended under the alternating loading conditions of plaintiff’s car in a process called metal fatigue.
McHenry reconstructed the cause of the accident as follows: Prior to the accident the transverse link had deliberately been bent to an angle considerably greater than 10° and then reverse bent to an angle of approximately 10°. (Dr. Magor established with certainty that this had been done a long time prior to the acquisition of the car by plaintiff.) Through the process of metal fatigue, the transverse link had progressively weakened as the cracks propagated through the upper section and down the sides of the link. The smaller bend in the link or arm had already created a mild pull to the left.
Due to the process of metal fatigue, just prior to the accident the transverse link bent more, causing the wheel to toe-in. The vibration which plaintiff described served to accelerate the fatigue process causing the cracks to propagate in an accelerated manner which, superimposed upon the already weakened link, abruptly increased the angle of bend from 10° or less to approximately 20°. This occurred in approximately one second and resulted in a heavy pull to the left causing the vehicle to go into the lane for oncoming traffic.
The vibration or shimmy was caused by the unbalanced retread tires. With the tread separation on the right front and two inches of free play at the rim of the steering wheel and the MacPherson struts low on dampering fluid, the vibration occurred. In addition, the disconnected motor mount would allow the engine vibration to reach a larger amplitude therefore shaking the engine more. McHenry completely ruled out driver error.
The reason the car veered to the right was because of steering input by plaintiff.
With the right front stabilizer bar disconnected, the car veered farther to the right, causing it to face the direction it was traveling at the time it came to the shoulder of the road and then to roll over.
In test runs with a similar test car of the same make, it took 1.4 seconds for the test car traveling 50 m. p. h. with a 20° bend in the transverse link to go entirely into the opposite lane. The bend now seen in the plaintiff’s transverse link is 20°. In addition to the effort to hold the steering wheel straight on the test car at 50 m. p. h. with a 20° bend in the transverse link, the steering wheel had to be turned 60° to the right just to hold the car in a straight line.
Testimony indicated that defendant did not inspect plaintiff’s car for defects after it was acquired at the repossession sale. Testimony of defendant’s employees indicated that a 5° bend in the transverse link would have been obvious if the car were placed on a hoist or if a front-end alignment check were made. (Defendant did not require safety inspections on used cars.) However, one employee testified that it was normal for every used car to receive an inspection by being lifted on a hoist where a mechanic would inspect the undercarriage for defects.
Defendant’s owner, John Greytak, testified that at one time there was a multipoint inspection which included an undercarriage inspection but that this was discontinued in 1974. When Greytak was questioned by plaintiff concerning whether defendant offered used cars for sale to a customer with the representation that they had been checked from end to end, he testified that they would not advertise in that manner or use those words. After much objection, an advertisement published by Great Falls radio station KEIN after the accident was admitted which stated:
“You really can’t tell a heck of a lot about a used car by kicking the front tires. So at Continental Datsun-Volvo before a used car is offered for sale, we check the compression, front end alignment, inspect the brake lining, test the brakes, check the front end and shocks, test the automatic transmission, safety test the lights, horn, turn signals and wipers. Plus they change the oil and filter, they give it a grease job and a full reconditioning. So when you kick the tires on a used car at Continental, you’re kicking the tires of a darn good car, one that’s been checked and corrected from end to end. Continental Datsun-Volvo.”
It is undisputed that no safety inspection was done on plaintiff’s car by defendant. The testimony indicated that defendant’s manager and salesmen intended their customers to assume that they were buying a reliable car, one that was safe for highway use.
Over thirty issues were presented for review on this appeal. A number of these issues were consolidated by counsel in general headings. We will therefore discuss the issues in a consolidated form.
There are five major issues, the resolution of which determines the outcome of this appeal. They are:
1. Did the District Court err in instructing the jury that a used car dealer has a legal duty to inspect and discover any defects in a used car which would have been discoverable in the exercise of ordinary care and then to either repair such defects or at least warn a buyer of their existence?
(a) What effect does the “as is” clause have on such a duty?
(b) Did the District Court err in refusing to permit testimony, argument, or instructions on the “as is” clause contained in the purchase agreement?
2. Did the District Court err in refusing to present to the jury the question whether plaintiff’s failure to use seat belts contributed to her injuries?
3. Did the District Court err in refusing to give instructions on plaintiff’s alleged contractual and non-contractual assumptions of risk?
4. Did the District Court err in denying defendant’s motion for summary judgment on plaintiff’s Count II?
5. Was it error to refuse to allow the reading of plaintiff’s disposition?
The key issue in this case is whether defendant had a legal duty to inspect and discover any defects in the used car which were obvious or discoverable upon reasonable inspection, and then to repair such defects or at least warn a buyer of their existence. Tied in closely with this issue is what effect the “as is” provision in the purchase agreement had on this duty.
Defendant contends that its duty was defined by the contract — “it was to sell the car in question, nothing more.” It further submits that the term “as is” has a definite meaning in the law. It implies that the buyer is taking delivery of goods in some way defective and upon express condition that he must trust to his own examination. Black’s Law Dictionary (4th ed. rev. 1968) at 146; 6A C.J.S. As is at 299.
From this premise defendant concludes that if a vehicle is sold by a used car dealer “as is”, the dealer is not liable to the buyer in negligence for injuries traceable to defects in the vehicle. Thrash v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110 N.E.2d 419, 423; Pokrajac v. Wade Motors (1954), 266 Wis. 398, 63 N.W.2d 720. Defendant argues it was error for the District Court to expressly direct the jury not to consider the “as is” provision. Defendant states that this, in effect, constitutes a rewriting of the agreement— something the District Court is not permitted to do. Section 1-4-101, MCA; Danielson v. Danielson (1977), 172 Mont. 55, 560 P.2d 893.
Plaintiff contends that defendant was negligent as a matter of law. This contention is based on defendant’s failure to inspect and on defendant’s knowingly placing a damaged front tire on plaintiff’s car. Plaintiff argues that a person cannot contract away liability because to do so would contravene public policy. Haynes v. County of Missoula (1973), 163 Mont. 270, 517 P.2d 370. Therefore, the “as is” provision is ineffective to protect defendant from liability for its negligent acts.
Plaintiff also cites Turner v. International Harvester Company (1975), 133 N.J.Super. 277, 336 A.2d 62, for the proposition that an “as js” disclaimer in the sale of a used vehicle does not bar a negligence action.
Defendant, in its reply brief, distinguishes Haynes and argues that Haynes dealt only with contracting away possible future negligence while this case, of necessity, involves past negligence.
The general rule in Montana is that a used car dealer has a duty to discover and repair any defects which are patent or dis coverable in the exercise of ordinary care. Rogers v. Hilger Chevrolet Company (1970), 155 Mont. 1, 465 P.2d 834. In Hilger, however, the defendant was not held liable because the evidence indicated that “[d]efendant did not warn plaintiff of any defects because it is obvious from the record defendant did not have any knowledge of a defect. Defendant’s employees checked the automobile over and this check included the right front door. Defendant’s duty does not extend to completely dismantling an automobile and then reassembling it before its resale. Hilger, 465 P.2d at 838. The evidence here shows that the defect was an obvious one and a reasonable inspection would have revealed it. In the instant case, however, defendant concedes that no inspection took place. In fact, defendant contends there was no duty to inspect.
There is also the added factor in this case of defendant’s “active negligence” in replacing worn tires with three good tires and a defective one. The act of placing the white sidewall on the inside was apparently a means of purposefully hiding from plaintiff a defect which inevitably accelerated the breakdown of the transverse link.
In deciding Hilger this Court cited the Eighth Circuit case of Egan Chevrolet Co. v. Bruner (8th Cir. 1939), 102 F.2d 373. In Egan Chevrolet the court was presented with a similar fact situation in that the steering mechanism of the truck broke down, causing a collision. The court held for the plaintiff and stated:
“A retail dealer who takes a used truck in trade and undertakes to repair and recondition it for resale for use upon the public highways owes a duty to the public to use reasonable care in the making of tests for the purpose of detecting defects which would make the truck a menace to those who might use it or come in contact with it and in making the repairs necessary to render the truck reasonably safe for use upon the public highways, and is charged with knowledge of defects which are patent or discoverable in the exercise of ordinary care . . . The rule does not mean — as the appellant seems to fear — that a dealer in used motor vehicles, who undertakes to recondition a truck for resale, becomes virtually an insurer of the safety of the truck he sells, nor does it mean that he is required to disassemble an entire truck to examine each of its parts. It does mean that he must use reasonable care to ascertain whether the truck is equipped with the minimum essentials for safe operation, one of which unquestionably is a steering mechanism which will work and which will not shortly shake apart under normal use. One who permits a truck with a dangerously defective steering mechanism to be used upon the public highways, not only has reason to anticipate that it will cause an accident, but may be almost certain that it will do so. ‘In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty.’ . . .” 102 F.2d at 375-76. (Citations omitted.)
In accord with the above are Gaidry Motors v. Brannon (Ky.1953), 268 S.W.2d 627 and Turner v. International Harvester Company (1975), 133 N.J.Super. 277, 336 A.2d at 62.
“It is common knowledge that old cars are more likely to be subject to mechanical defects than are new ones. The turnover in ownership of used cars is fairly rapid, and the majority of these cars are sold through used car dealers. The used car dealer is in a better position, by reason of his opportunity, than his average customer to discover what defects might exist in any particular car to make it a menace to the public. We are of the opinion it is not too harsh a rule to require these dealers to use reasonable care in inspecting used cars before resale to discover these defects, which the customer often cannot discover until too late.” Gaidry Motors v. Brannon, 268 S.W.2d at 628-629.
Further,
“. . . expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price. However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enter prise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (where no substantial change will occur prior to reaching the buyer or foreseeable consumer) ...” Turner v. International Harvester Company, 336 A.2d at 69. (Citations omitted.)
See also Ikerd v. Lapworth (7th Cir. 1970), 435 F.2d 197; Thrash v. U-Drive-It Co., supra; 60 C.J.S. Motor Vehicles §§ 165(7)-166 at 945-49.
Defendant cites Thrash for the proposition that use of an “as is” clause protects a used car dealer from liability for negligence for injuries traceable to defects in the vehicle.
A careful reading of Thrash shows that defendant has misread the case. It in fact points the finger of liability at defendant. Thrash involved the sale of a used truck “as is” from the U-Drive-It Company to the Spot Motor Company and then a subsequent sale from Spot to Thrash. Shortly after the sale a lock ring on the left front wheel of the truck blew off, causing an accident in which the plaintiff was crushed.
The plaintiff sued both car dealers. The court ruled that the U-Drive-It Company was not liable for the plaintiff’s injuries because the sale to Spot Motor was an intervening factor relieving it from liability and transferring its duty to Spot. The court stated;
“We conclude that where the owner of a used motor vehicle sells the same ‘as is’ to a dealer in those articles for such disposition as the dealer may make of it, such owner may not ordinarily be held liable for injuries occasioned to one who purchased the vehicle from the dealer or for injuries to another, because of faults or imperfections in the vehicle which existed or occurred during the time it was in the possession of such owner.” Thrash, 110 N.E.2d at 423.
The court, however, ruled in effect that Spot Motor’s negligence was still at issue and stated:
“Although a dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exer cise reasonable care in making an examination thereof to discover defects therein which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser . .” Thrash, 110 N.E.2d at 423. (Citations omitted.)
It is the second ruling by the court, and not the first, which is applicable here as this case does not involve a sale between dealers but between a dealer and a consumer. Once it has been determined that a used car dealer has a duty to reasonably inspect and discover defects which are patent or discoverable in the exercise of ordinary care and then to repair those defects, Rogers v. Hilger Chevrolet Company, supra, it becomes necessary to determine what effect the “as is” clause has on such a duty.
The phrase “as is” is a statutorily approved method of excluding warranties. The controlling statute is section 30-2-316(3) (a), MCA, which provides:
“(3) Notwithstanding subsection (2):
“(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty;”
The code comment on this section is of little help here. It states:
“Paragraph (a) of subsection (3) deals with general terms such as ‘as is,’ ‘as'they stand,’ ‘with all faults,’ and the like. Such terms in ordinary commercial usage are understood to mean that the buyer takes the entire risk as to quality of the goods involved . . .” U.C.C. (U.L.A.) § 2-316.
The area of the code in which this section is located deals with exclusion or modification of warranties, express or implied, in sales of goods. These warranties for the most part deal with quality, merchantability, and fitness of the goods sold. There is nothing enumerated in these sections which deals with exclusion of tort liability. It would indeed be inconsistent if the disclaimer had that ef- feet. This is especially the case in light of the legislature’s passage of section 30-2-719(3), MCA, which provides:
“(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injuiry to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
Montana subscribes to the general rule:
“ ‘. . . that persons may not contract against the effect of their own negligence and that agreements which attempt to do so are invalid. However, it is not true that any agreement of this kind is void as against public policy. Whether a person can relieve himself by agreement from the duties attaching as a matter of law to a legal relationship created by contract between himself and another person, is a matter of some difficulty. The conclusion has been reached that even under the view that a person may, under some circumstances, contract against the performance of such duties, he cannot do so where either (1) the interest of the public requires the performance of such duties, or (2) because the parties do not stand upon a footing of equality, the weaker party is compelled to submit to the stipulation.’ ” Haynes v. County of Missoula (1973), 163 Mont. 270, 517 P.2d 370, 376.
One of the issues presented for review in Haynes was the propriety of the District Court’s pretrial order suppressing the plaintiff’s general release in the Western Montana Fair Entry Blank. The defendants argued the release was a valid and enforceable contract absolving the defendants from liability. The release provided: “I hereby release the Missoula County Fair Board from any liability by loss, damage or injury to livestock or other property, while said property is on the Fairgrounds.” 517 P.2d at 376. This Court held the District Court was correct in suppressing the release stating, “.. [i]n our view the release is illegal and unenforceable because it is contrary to the public policy of this state and against the public interest.” 517 P.2d at 376.
We further stated in Haynes:
“Directing our attention to Montana law, we note an express public policy of this state to fix responsibility for damage to person or property upon those who fail to exercise ordinary care or skill. Section 58-607, R.C.M.1947 [now section 27-1-701, MCA], provides:
‘Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or persons, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief.’
“The purpose of this statute is twofold: (1) To fix primary responsibility and liability on the tortfeasor whose conduct occasioned the loss or injury, and (2) to make the victim whole.
“Section 13-801(2), R.C.M.1947 [now section 28-2-701, MCA], defines illegal contracts as those:
‘Contrary to the policy of express law, though not expressly prohibited.’
“Section 49-105, R.C.M.1947 [now section 1-3-204, MCA], provides: ‘Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.’
“We hold the County is precluded from disclaiming liability by virtue of the release when performing an act in the public interest. This principle is recognized in Restatement, Contracts, § 575, providing in pertinent part:
‘(1) A bargain for exemption from liability for the consequences * * * of negligence is illegal if
“ ‘(a) * * *
“ ‘(b) one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation.’ ” Haynes, 517 P.2d at 376-78.
While Haynes dealt with a release of liability for future negligence, there is no reason the rules enumerated in Haynes should not apply here. Defendant was under a duty to reasonably inspect for defects. It failed to do so. To allow it to disclaim liability by a simple “as is” phrase would be a violation of the public policy espoused in Haynes.
Montana has never determined what effect the “as is” phrase has on tort liability. Other jurisdictions have interpreted the phrase, with varying results. Defendant urges this Court to follow the holding in Pokrajac v. Wade Motors, supra. The court in Pokrajac held that the seller was not liable for defects due to the existence of a disclaimer clause.
The disclaimer in Pokrajac, however, is different from the one used in the instant case. It provided:
“ * * In case the car covered by this order is a used car, the undersigned purchaser states that he has examined it, is familiar with its condition, is buying it as a used car, as-is, and with no guaranty as to condition, model or mileage, unless otherwise specified herein in writing. No oral representations have been made to the Purchaser and all terms of the agreement are printed or written herein * * *’ ” 63 N.W.2d at 721.
The court specifically found no duty to inspect or repair because of the “as-is” clause. Further, it could find no reason in public policy to prevent such a disclaimer.
Pokrajac, however, is distinguishable because of the extensive disclaimer provision, including a statement by the buyer that he inspected the car — a factor not present here. Further, in Montana, unlike Wisconsin, there is a duty to inspect independent of the “as is” clause. Hilger, 465 P.2d at 837.
Knipp v. Weinbaum (Fla.App. 1977), 351 So.2d 1081, held that the effect of an “as is” disclaimer on tort liability depended on the interpretation the parties gave to the disclaimer and was thus a question for the jury to decide. In reaching its decision, the court stated:
“The plaintiff in this case alleged that his injuries resulted from a defect in the goods sold. To foreclose consideration of his claim by permitting an ‘as is’ disclaimer to operate as an automatic absolution from responsibility through the mechanism of summary judgment would belie the policy behind Section 672.2-719(3), which states that ‘limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable.
“Moreover, Section 672.2-316(3) provides:
‘(a) Unless the circumstances indicate otherwide, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty . . .’ [Emphasis supplied.]
“It is the clause ‘unless the circumstances indicate otherwise’ which precludes a finding that automatic absolution can be achieved in the sale of used consumer goods merely by the inclusion in a bill of sale of the magic words ‘as is.’
“This is not to say that a seller of used goods may not absolve himself from responsibility for defects in the goods sold when both he and the buyer understand this to be the intended meaning of the phrase ‘as is.’ See Comment 3 to Section 672.2-719. The Uniform Commercial Code contemplates that a seller may disclaim warranties as long as the buyer reasonably understands this is being done . . . But a disclaimer, to be effective, must be a part of the basis of the bargain between the parties.” 351 So.2d at 1084-85. (Citations omitted.)
The court further stated:
“Even if the ‘as is’ term were to be found to negate liability under the causes of action in warranty, an issue by no means settled, the absence of warranties in the sale of chattel does not necessarily preclude liability for negligence . . . On the contrary, in the instant situation, the ‘as is’ disclaimer serves to add another dimension to the negligence claim, for its effect on the evidence presented may be substantial, especially on the question of whether or to what degree the defendant owed a duty to the plaintiff. The understanding of the parties as to the extent of the disclaimer is particularly relevant to a jury’s determination of what was reasonable under the circumstances . . . There remain disputed facts as to the degree of care exercised by defendants and the degree of care required of them. Summary judgment on the negligence count is singularly inapt on the facts before us.” 351 So.2d at 1085-86.
Turner v. International Harvester Company, supra, involved the “as is” sale of an International tractor-truck. The court applied a strict liability standard to the seller of defective used products. The court held that when selling to the ordinary consumer a simple “as is” disclaimer does not effectively insulate the dealer from a claim of strict liability in tort following an accident which resulted from a safety defect present in the vehicle when it was in the control of the dealer. It stated:
“. . . Bargaining power and ability to protect one’s interest are generally disproportionate as between the buyer of used goods and one in the business of selling them. While freedom to contract need not be impaired if a buyer wishes to contract away his right to protection, an unequivocal waiver of safety defects must be shown . . . Otherwise, when the additional indirect costs will be borne by the public through insurance costs, a decent regard for the public safety requires the thumb of the State to be on the buyer’s side of the scale . . .” 336 A.2d at 70-71. (Citations omitted.)
The court ultimately held that the issue of the effect of the “as is” clause was a jury question:
“The ‘as is’ notation, however, adds an additional element to the negligence aspects of this case . . . But, does a disclaimer of statutory warranties also act as a waiver of both tort claims in strict liability and negligence? Without any language of waiver, and without any evidence before this court that the ‘as is’ language was meant to serve as an intentional relinquishment of a known right, such effect will not be implied . . .
“This determination, however, does not fully answer the question of the effect of the ‘as is’ statement, for it will have a very real evidentiary effect at the trial. What conditions did the ‘as is’ designation disclaim? A jury must eventually determine what was reasonable with respect to any proven danger present in a product sold ‘as is.’ Did the parties understand that the ‘as is’ designation applied only to body damage, gas mileage, worn tires or other such problems that could be discerned by a reasonable inspection or test drive? Was it limited to performance rather than safety defects? Was the designation intended to cover all defects?” 336 A.2d at 72-73. (Citations omitted.)
In Fleming v. Stoddard Wendle Motor Co. (1967), 70 Wash.2d 465, 423 P.2d 926, a former owner of a pickup had modified its automatic transmission so that the motor would start even though the transmission was “in gear.” When the former owner traded in the pickup, he did not disclose the modification to the automobile dealer. The court held the former owner subject to liability for the plaintiff’s injuries, even though the trade-in was made “as is.”
The facts of Fleming are easily distinguishable here. However, the court’s discussion of the “as is” disclaimer is relevant:
“. . . in certain circumstances . . . parties may bargain for exemption from liability for the consequences of negligence . . . However, in order to effectuate such a result, a provision for such an exemption must clearly express an intention to exclude liability for any and all harms however caused . . .
“The significance of an ‘as is’ sale is that the goods are sold in the condition in which they are . . . Such a sale, unless otherwise provided in the contract, excludes the negatives warranties . . In other words, the term ‘as is’ by itself amounts solely to a disclaimer of warranty.
“The absence of warranties in the sale of chattels does not preclude liability for negligence . . .” 423 P.2d at 928.
In its discussion the court specifically distinguished Pokrajac and the “as is” holding in Thrash on much the same grounds as stated above.
In Kothe v. Tysdale (1951), 233 Minn. 163, 46 N.W.2d 233, the defendant asserted that his statute was that of a seller of second hand goods “as is” and that no liability attached to him as a vendor because of any defects therein.
The court disagreed and stated:
“The authorities seemed to clearly establish that either a vendor in a sale or a lessor in a lease of a vehicle intended to be used upon the public highways owes a duty to the public using such highways to exercise reasonable care in supplying the purchaser or the lessee with a vehicle that will not constitute a menace or source of danger thereon; that liability attaches to such vendor or lessor for injuries which are the result of patent defects in the vehicle thus provided, or if defects therein which could have been discovered by the exercise of ordinary care; and that such liability exists irrespective of any contractual obligations between the parties to the original transaction . .” 46 N.W.2d at 236. (Citations omitted.)
It is clear that in Montana a used car dealer has a duty to discover and repair any defects which are patent or discoverable in the exercise of ordinary care. Hilger, supra. It is equally clear that it is against the public policy of this State to disclaim liability when performing an act in the public interest. It cannot be denied that inspecting used cars to insure their safe operation is an act in the public interest.
In light of the above-enumerated public policies, we find the better rule to be that the “as is” language does not absolve used car dealers from tort liability for accidents caused by defects in the car sold. This is especially true in cases where, as here, there was a breach of a duty to discover and repair the defects.
“Tort liability is not based upon representations or warranties. It is based on a duty imposed by the law upon one who may foresee that his actions or failure to act may result in an injury to others.” Gaidry Motors, supra, 268 S.W.2d at 629.
Here defendant failed to inspect the car for defects before the sale to plaintiff. The defect would have been discovered in a reasonable safety inspection. The defect was the proximate cause of plaintiff’s accident and subsequent injuries. Defendant should not be allowed to hide behind the cloak of a simple “as is” disclaimer. When the ordinary person purchases a car “as is,” he expects to have to perform certain repairs to keep the car in good condition. He does not expect to purchase a death trap. Public policy requires a used car dealer to inspect the cars he sells and to make sure they are in safe, working condition. This duty cannot be waived by the use of a magic talisman in the form of an “as is” provision. The trial court did not err in instructing the jury of defendant’s duty to inspect and in suppressing evidence on the “as is” clause.
The second issue is whether the trial court erred in refusing to instruct on the defense of plaintiff’s failure to use a seat belt.
The Montana statutes regarding seat belts are sections 61-9-409 and 410, MCA. Section 61-9-409 provides:
“Seatbelts required in new vehicles. It is unlawful for any person to buy, sell, lease, trade or transfer from or to Montana residents at retail an automobile which is manufactured or assembled commencing with the 1966 models unless such vehicle is equipped with safety belts installed for use in the left front and right front seats thereof, and no such vehicle shall be operated in this state unless such belts remain installed.”
Section 61-9-410 deals with seat belt specifications.
There is no statutory requirement in Montana that a person must wear a seat belt while operating or riding in an automobile, nor are there any Montana cases on the subject. The seat belt defense has, however, been raised repeatedly in other jurisdictions with varying results.
Plaintiff contends that the overwhelming majority of jurisdictions are in accord that there is no common law duty to wear a seat belt, and absent a statute requiring the wearing of a seat belt, negligence cannot be predicated upon failure to do so. She then lists numerous cases in jurisdictions rejecting the defense.
Defendant, on the other hand, contends that when a state has a comparative negligence rule, use of seat belts to mitigate the injury is always a proper question. It cites a few cases to support its viewpoint, and in its reply brief attempts to distinguish most of-the cases plaintiff cites on the ground that they were decided in noncom-parative negligence jurisdictions.
The overwhelming majority of the cases, be they from contributory negligence states or comparative negligence states, refuse to penalize a plaintiff for not using seat belts and have rejected the defense. Amend v. Bell (1977), 89 Wash.2d 124, 570 P.2d 138. See also: Barry v. Coca Cola Co. (1967), 99 N.J.Super. 270, 239 A.2d 273; Birdsong v. ITT Continental Baking Company (1974), 160 Ind.App. 411, 312 N.E.2d 104; Britton v. Doehring (1970), 286 Ala. 498, 242 So.2d 666; Brown v. Case (1974), 31 Conn.Supp. 207, 327 A.2d 267; Brown v. Kendrick (Fla.App.1966), 192 So.2d 49; Cierpisz v. Singleton (1967), 247 Md. 215, 230 A.2d 629; D.W. Boutwell Butane Company v. Smith (Miss.1971), 244 So.2d 11; Fields v. Volkswagen of America, Inc. (Okl.1976), 555 P.2d 48; King Son Wong v. Carnation Company (Tex.Civ.App.1974), 509 S.W.2d 385; Lawrence v. Westchester Fire Insurance Company (La.App.1968), 213 So.2d 784; Lipscomb v. Diamiani (Del.Super. 1967), 226 A.2d 914; McCord v. Green (D.C.App. 1976), 362 A.2d 720; Miller v. Haynes (Mo.App.1970), 454 S.W.2d 293; Miller v. Miller (1968), 273 N.C. 228, 160 S.E.2d 65; Fischer v. Moore (1973), 183 Colo. 392, 517 P.2d 458; Nash v. Kamrath (1974), 21 Ariz.App. 530, 521 P.2d 161; Placek v. City of Sterling Heights (1974), 52 Mich.App. 619, 217 N.W.2d 900; Robinson v. Lewis (1969), 254 Or.52, 457 P.2d 483; Selgado v. Commercial Warehouse Company (1975), 88 N.M. 579, 544 P.2d 719; Stallcup v. Taylor (1970), 62 Tenn.App. 407, 463 S.W.2d 416.
In Amend, supra, the defendants argued that under the doctrine of comparative negligence, evidence was admissible to prove that plaintiff’s wife was not wearing an available harness seat belt. They further alleged that such failure either caused all her injuries, contributed to, enhanced or aggravated those injuries.
Before the passage of comparative negligence statutes, Washington held that failure to wear a seat belt was not contributory negligence. In Amend the defendants contended, as does defendant here, that the comparative negligence statute abrogated prior case law on the seat belt defense and therefore evidence on the defense was admissible. The court disagreed and stated:
“. . . While the result of contributory negligence and comparative negligence is much different, both are premised upon negligence. In the one case we bar recovery, in the other we compare negligence and potentially reduce damages. However, in either case, we look to the negligence of the. plaintiff.
“The premise upon which negligence rests is that an actor has a legally imposed duty, i. e., a standard of conduct to which he must adhere. That duty may spring from a legislative enactment of the standard of conduct or from a judicially imposed standard. Deviation from that standard of conduct must occur to have negligence. [Citation omitted.]
“Our legislature has not mandated the use of seat belts as a standard conduct. RCW 46.37.510 only requires installation of front seat belts on automobiles manufactured after 1964 [similar to Montana], We have held, along with the vast majority of other states, that such a statute does not make mandatory the use of the seat belts. [Citation omitted.]
“The question then is whether the court should impose a standard of conduct upon all persons riding in vehicles equipped with seat belts. We think we should not.
“The defendant should not diminish the consequences of his negligence by the failure of the plaintiff to anticipate the defendant’s negligence in causing the accident itself. Only if plaintiff should have so anticipated the accident can it be said that plaintiff had a duty to fasten the seat belt prior to the accident.
“There are a number of reasons why we reach this conclusion. We have noted that the plaintiff need not predict the negligence of the defendant. Second, seat belts are not required in all vehicles. Defendant should not be entitled to take advantage of the fortuitous circumstances that plaintiff was riding in a car so equipped.
“Third, while not controlling as to the standard of conduct, it is a fact and persuasive that the majority of motorists do not habitually use their seat belts. Studies show that as many as two-thirds of observed drivers did not use seat belts. ‘Belt Use ‘76,’ Insurance Institute for Highway Safety, 1976. Belt use by passengers and children is even lower, one research paper revealing that 93 percent of observed children under 10 were not restrained by belts and 89 percent of passengers 10 years or older were not using available belts. Alan F. Williams, ‘Observed Child Restraint Use in Automobiles,’ The American Journal of Diseases of Children, vol. 130, December 1976.
“Fourth, allowing the seat belt defense would lead to a veritable battle of experts as to what injuries would have or have not been avoided had the plaintiff been wearing a belt. At best it would cause substantial speculation by the trier of the facts.” Amend v. Bell, supra, 570 P.2d at 143.
In Fischer v. Moore, supra, the court stated:
“We conclude, as the Court of Appeals has, that the failure of the driver or passenger in a motor vehicle to use a seat belt does not constitute contributory negligence and may not be pleaded as a bar to recovery of damages in an action against a tort-feasor whose negligence provides the initiating force and is a proximate cause of an injury to a driver or passenger. [Citation omitted.] if we were to hold otherwise, the person who was driving a Volkswagen, and not a Mack Truck, could be said to be more vulnerable to injury and, therefore, guilty of contributing to his own injury as a matter of law. Such a result would be contrary to the entire ‘fault’ philosophy which is found throughout the law of tort.
“Moreover, to us, it would be improper for an injured driver or passenger to be penalized in the eyes of the jury by permitting evidence to be presented that a seat belt was available which had not been put in use. The seat belt defense would soon become a fortuitous windfall to tort-feasors and would tend to cause rampant speculation as to the reduction (or increase) in the amount of recoverable damages attributable to the failure to use available seat belts. [Citations omitted.] In comparing the cases which we have cited, it is apparent that the acceptance of the seat belt defense can only be justified as a deviation from common-law negligence on a public policy theory. [Citation omitted.] The legislature, and not the judiciary, serves as the barometer of public policy in Colorado. Prior to the adoption of our comparative negligence statute, the legislature did not enact, although it considered, seat belt legislation. Therefore, we are not inclined to alter the common law in the face of the legislature’s failure to act in order to create a negligence defense which is wholly grounded on public policy considerations.
“In short, the seat belt defense, under the law that existed prior to the adoption of our comparative negligence statute, is not an affirmative defense to an action for negligence, and evidence that the injured party failed to wear a seat belt may not be brought before the jury in any form to establish contributory negligence or to reduce the amount of the injured party’s damages.” 517 P.2d at 459-60.
Other cases which leave such a decision up to the legislature or refuse to enforce a seat belt defense on the basis of statutes similar to Montana’s are: Britton v. Doehring, supra, 242 So.2d at 675; D. W. Boutwell Butane Company v. Smith, supra, 244 So.2d at 12; Miller v. Haynes, supra, 454 S.W.2d at 301; Miller v. Miller, supra, 160 S.E.2d at 73; Fields v. Volkswagen of America, Inc., supra, 555 P.2d at 62. Two of the above cases give comprehensive discussions concerning the use and practicality of seat belts. Both reject the seat belt defense and cite numerous cases in support of this rejection.
Based on a lengthy discussion and a review of the case law, the court in Miller v. Miller, supra, stated:
“It would be a harsh and unsound rule which would deny all recovery to the plaintiff, whose mere failure to buckle his belt in no way contributed to the accident, and exonerate the active tort-feasor but for whose negligence the plaintiff’s omission would have been harmless. [Citation omitted.] Furthermore, it is doubtful that such a rule would increase the use of seat belts. In the case com ment on Brown v. Kendrick, supra, 39 Colo.L.Rev. 605, 608, it is said, ‘[I]mposing an affirmative legal duty of wearing seat belts will have virtually no effect on the actual seat-belt wearing habits of automobile occupants. Its only effect would be to give an admitted wrongdoer a chance to dodge a substantial portion of his liability.’ It could never, of course, defeat a plaintiff’s claim for property damage.
“Needless to say, the seat-belt defense, which would bar an otherwise wholly innocent victim, would not be popular with the jury or trier of facts. [Citations omitted.]
“Due care is measured by the customary conduct of the reasonably prudent man. The scant use which the average motorist makes of his seat belt, plus the fact that there is no standard for deciding when it is negligence not to use an available seat belt, indicates that the court should not impose a duty upon motorists to use them routinely whenever he travels upon the highway. If this is to be done, it should be done by the legislature. [Citation omitted.]” 160 S.E.2d at 73.
In McCord v. Green, supra, the court cited Miller extensively and concluded:
“ ‘Unfortunately, the use of occupant restraints has traditionally been low in this country. Even now, the average use rate for cars of all model years is about 5 percent for lap and shoulder belts and 25 percent for lap belts alone.’
“To characterize plaintiff’s behavior in this case as lacking in ordinary prudence would be paradoxical, as it did not differ from that of 75% of the motorists in this country with respect to the use of seat belts.” 362 A.2d at 725. (Citation omitted.) See also, Romankewiz v. Black (1969), 16 Mich.App. 119, 167 N.W.2d 606, 609, and Nash v. Kamrath, supra, 521 P.2d at 163-64.
Although the study quoted in McCord v. Green, supra, was conducted over a decade ago, it is apparently still applicable today. Witness this discussion from Fields v. Volkswagen of America, Inc., supra:
“This is a question of first impressions in this court. There is no common law or statutory duty requiring the use of seat belts. Imposition of new and recent technological advances are not usually inducted into doctrines of law, until such time as they have been sufficiently tried, proven and accepted for the purpose they were intended. Historically, the seat belt phenomenon is in its infancy. It is in a state of influx.
“Both industry and government are now aware that while seat belts are beneficial, their use and acceptance cannot be arbitrarily thrust upon the traveling public. Consequentially, on October 28, 1974, the controversial mandatory seat belt interlock system was withdrawn and industry has intensified its research to determine other possible alternatives.
“If the appellants in this case are guilty of the acts of negligence as alleged, which caused the accident and resulting injuries, then they should be held accountable as constitutionally and statutorily required. If the allegations of negligence are true, appellee did nothing to cause the accident. Should he be required to anticipate the negligence of the appellants? We think not. One’s duty to mitigate damages cannot arise before he is damaged. The failure to minimize must occur after the injury. At most the failure of the ap-pellee to use the seat belt merely furnished a condition by which the injury was possible. It did not contribute to or cause the accident. It is well established in our court that if the negligence merely furnishes a condition by which the injury was possible, and a subsequent act caused the injury, the existence of such a condition is not the proximate cause of the injury.
“Although there is a conflict in other jurisdictions who have been confronted with this issue, the majority of the cases hold that the failure to use seat belts is not a defense to establish contributory negligence or to reduce the amount of damages to the injured party-
“In view of the lack of unanimity on a proper seat belt system, the lack of public acceptance, and in the absence of any common law or statutory duty, we find that evidence of the failure to use seat belts is not admissible to establish a defense of contributory negligence or to be considered in mitigation of damages. For the present time we await the direction of the legislature.” 555 P.2d at 61-62.
On the other side of the coin is Bentzler v. Braun (1967), 34 Wis.2d 362, 149 N.W.2d 626. The court in Bentzler stated:
“While we agree with those courts that have concluded that it is not negligence per se to fail to use seat belts where the only statutory standard is one that requires the installation of the seat belts in the vehicle, we nevertheless conclude that there is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate.
“We therefore conclude that, in those cases where seat belts are available and there is evidence before the jury indicating casual relationship between the injuries sustained and the failure to use seat belts, it is proper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use seat belts . ..” 149 N.W.2d at 639, 640.
However, the court held that the trial judge had properly refused a requested instruction on the seat belt defense:
“There was proof that seat belts were available and were not used, but that fact alone does not prove causation, for the driver of the vehicle also failed to use the available seat belts, but his injuries were minimal.” 149 N.W.2d at 640.
See also Sams v. Sams (1966), 247 S.C. 467, 148 S.E.2d 154.
Illustrative of the cases which state that upon one or both of these aspects, the defense must be submitted to the jury are:
Dudanas v. Plate (1976), 44 Ill.App.3d 901, 3 Ill.Dec. 486, 358 N.E.2d 1171; Spier v. Barker (1974), 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164.
In light of the history and the numerous legislative problems that must be considered to effectively extend the seat belt rule of law, we have concluded that the well-reasoned position of the Washington court in Amend v. Bell, supra, produces the better rule and reach the conclusion that to adopt a seat belt defense when the legislature has failed to do so would be ill-advised. The trial court properly refused to allow defendant to introduce a seat belt defense into this case.
The third issue is whether the trial court erred in refusing to present to the jury the question of assumption of risk, both contractual and noncontractual.
Defendant contends that the trial court mistakenly acted on the assumption that the comparative negligence statute merged the defense and erred in refusing to instruct separately on the issue of the defense.
Plaintiff initially contends that “assumption of risk” is not involved here because the traditional elements of assumption of risk are not involved. Plaintiff further asserts that even if the doctrine applies here, it is no longer a separate affirmative defense but merely one form of contributory fault to be compared, which the jury did.
We agree with plaintiff that the doctrine of assumption of risk does not apply in the instant case.
Historically in Montana, the defense of assumption of risk required: “(1) knowledge, actual or implied, of the particular condition creating the risk, (2) appreciation of this condition as dangerous, (3) a voluntary remaining or continuing in the face of the known dangerous condition, and (4) injury resulting as the usual and probable consequence of the dangerous condition.” Hanson v. Colgrove (1968), 152 Mont. 161, 447 P.2d 486, 488. (Emphasis added.) See also Dean v. First National Bank of Great Falls (1969), 152 Mont. 474, 452 P.2d 402, 405. Here, there is no evidence that plaintiff knew of the particular condition which caused the accident. “. . . Assumption of risk is governed by the subjective standard of the plaintiff rather than the objective standard of the reasonable man . . .” Deeds v. United States (D.Mont. 1969), 306 F.Supp. 348, 363.
In Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, this Court quoted from Dorsey v. Yoder Company (E.D.Pa. 1971), 331 F.Supp. 753, and stated:
“Quoting 2 Restatement of Torts 2d, § 496D, Comment (c), the court in Dorsey continued:
“The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence. * * * If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may be found that his conduct is contributory negligence because it does not conform to the community standard of the reasonable man.” ’ ” 576 P.2d at 719. (Emphasis supplied.)
Our discussion above on the “as is” defense indicates that plaintiff did not contractually assume the risk of the defective condition, nor did she impliedly assume it. To assume the risk, one must have knowledge of the particular condition that creates such risk. Such knowledge was lacking on the part of plaintiff. Defendant here has failed to prove the requisite elements of the defense of assumption of risk. The trial court properly refused to instruct the jury on assumption of risk.
Although we do not apply the doctrine in this case, it would be helpful to discuss its application since the recent passage of the comparative negligence statute. Defendant contends that because Montana recognized that the defenses of assumption of risk and contributory negligence were separate defenses requiring separate instructions before the passage of comparative negligence, the same result should accrue after adoption of comparative negligence. Plaintiff contends that assumption of risk should be merged into the general scheme of assessment of liability in proportion to fault and should not be a separate defense, and that if a state, like Montana, recognized that assumption of risk and contributory negligence were separate defenses, they have consistently retained “assumption of risk” as a separate defense under comparative negligence rules. Arkansas Kraft Corporation v. Johnson (1975), 257 Ark. 629, 519 S.W.2d 74; Blum v. Brichacek (1974), 191 Neb. 457, 215 N.W.2d 888; O’Brien v. Smith Brothers Engine Rebuilders, Inc. (Tenn.App.1973), 494 S.W.2d 787. Defendant argues that Montana should follow the above jurisdictions and retain the distinction. To do otherwise, it contends, would be to change the statute itself as to comparative negligence.
Defendant also distinguishes the cases cited by plaintiff arguing that the decisions made in those states before comparative negligence were different from Montana’s. Defendant is correct in its conclusion that prior to the adoption of comparative negligence, Montana distinguished between contributory negligence and assumption of risk, Deeds v. United States, supra, 306 F.Supp. at 362-363, and allowed the giving of separate instructions on the two issues. Hoffman v. Herzog (1971), 158 Mont. 296, 491 P.2d 713.
The cases it cites, however, do not discuss the effect of a comparative negligence statute on separability of the defenses of assumption of risk and comparative negligence and are not good authority for defendant’s argument since the precise issue presented here was not before the respective courts.
Plaintiff contends that under comparative negligence, the issue of assumption of risk is just one of the factors to be considered in determining plaintiff’s contributory negligence.
In Li v. Yellow Cab Company of California (1975), 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court judicially adopted the doctrine of comparative negligence. The court discussed the question of the effect of comparative negligence on the doctrines of assumption of risk and last clear chance and concluded that neither of these two doctrines were actually necessary under comparative negligence. The court stated;
“The third area of concern, the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than it does a definition of the theoretical outline of the specific form to be adopted. Although several states which apply comparative negligence concepts retain the last clear chance doctrine [citation omitted], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the ‘all-or-nothing’ rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations omitted.] As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed . . . that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence . . . Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory, negligence, but rather a reduction of defendant’s duty of care.’ [Citations omitted.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citations omitted.]” 119 Cal.Rptr. at 872-873, 532 P.2d at 1240-41.
Minnesota has held that implied assumption of risk as an affirmative defense in tort actions is to be limited to those situations in which the voluntary encounter with a known and appreciated risk is unreasonable. As such, it is to be considered merely as a phase of contributory negligence, to be submitted with and apportioned under, the comparative negligence doctrine. Springrose v. Willmore (1971), 292 Minn. 23, 192 N.W.2d 826.
. The doctrine of implied assumption of risk must, in our view, be recast as an aspect of contributory negligence, meaning that the plaintiff’s assumption of risk must be not only voluntary but, under all the circumstances, unreasonable . . . The practical and most important impact of this decision is to mandate that, like any other form of contributory negligence, assumption of risk must be apportioned under our comparative negligence statute . ." 192 N.W.2d at 827. [Citations omitted.]
In Lyons v. Redding Construction Company (1973), 83 Wash.2d 86, 515 P.2d 821, the court stated:
“. . . Adoption of the standard of comparative negligence is necessarily accompanied by a more flexible weighing of the relative fault attributable to each party. A concomitant effect of this more delicate apportionment of damages will be the elimination of the need for the assumption of the risk doctrine. Thus, the calculus of balancing the relative measurements of fault inevitably incorporates the degree to which the plaintiff assumed the risk. Accordingly, it has been held the effect of the comparative negligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore.” 515 P.2d at 826.
See also Colson v. Rule (1962), 15 Wis.2d 387, 113 N.W.2d 21.
In Wilson v. Gordon (Me. 1976), 354 A.2d 398, the Maine court presents an excellent discussion on this issue. It states:
“Contractual assumption of the risk is not inconsistent with the Maine comparative negligence statute. On the other hand, voluntary assumption of the risk ... is but a form of contributory fault. That being so, our comparative negligence statute is clearly intended to abolish the doctrine of so-called voluntary assumption of the risk.
“While it is true that 14 M.R.S.A. § 156 does not specifically abolish the defense of assumption of the risk, in most cases the apportionment of fault which the statute is designed to effectuate obviates the need for and alleviates much of the harshness of that common law doctrine. In those cases where assumption of the risk is based upon the plaintiff’s lack of due care in encountering a known risk created by the negligence of the defendant — so-called ‘voluntary’ assumption of the risk — the concept overlaps contributory fault. In such circumstances the plaintiff’s conduct should be judged in terms of contributory fault and weighed against the causal negligence of the defendant. This approach avoids the harsh ‘all or nothing’ effect of assumption of the risk while at the same time permitting a defendant to reduce his liability for damages when he can demonstrate that the plaintiff’s fault contributed to the injuries.
“The treatment of assumption of the risk which we today adopt has long been advocated by Dean Prosser and seems to represent the approach adhered to by most of the courts which have recently dealt with the question.
“Some jurisdictions have abolished the defense of assumption of the risk, except where the risk was contractually assumed, without any reference to whether or not a comparative negligence statute has been adopted. Alaska, Leavitt v. Gillaspie, Alaska, 443 P.2d 61 (1968); Hawaii, Bulatao v. Kauai Motors, Ltd., 49 Hawaii 1, 406 P.2d 887 (1965); Iowa, Rosenau v. City of Estherville, Iowa, 199 N.W.2d 125 (1972); Kentucky, Parker v. Redden, Ky., 421 S.W.2d 586 (1967); Michigan, Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965); New Hampshire, Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962); New Jersey, Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959), and McGrath v. American Cyanamid, 41 N.J. 272, 196 A.2d 238 (1963); New Mexico, Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972); Oregon, Ritter v. Beals, 225 Or. 504, 358 P.2d 1080 (1961); Wisconsin, Gilson v. Drees Bros., 19 Wis.2d 252, 120 N.W.2d 63 (1963).
“In Meistrich, supra, Chief Justice Weintraub expounded upon the confusion which has been wrought by the indiscriminate use of the term ‘assumption of the risk.’ He emphasized the distinction between ‘primary’ assumption of the risk (i. e., contractual) and ‘secondary’ assumption of the risk (i. e., implied or voluntary) and concluded:
“ ‘We are satisfied there is no reason to charge assumption of risk in its secondary sense as something distinct from contributory negligence, and hence that where the thought is projected in that aspect, the terminology of assumption of the risk should not be used. Rather . . . the subject should be subsumed under the charge of contributory negligence.’’ 155 A.2d at 96.
“Other courts have interpreted their comparative negligence statutes as eliminating the need for assumption of the risk where the defense can be said to overlap with contributory negligence. California, Li v. Yellow Cab Co. of Calif, 13 Cal.3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975); Minnesota, Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Mississippi, Braswell v. Economy Supply Co., Miss., 281 So.2d 669 (1973); and Washington, Lyons v. Redding Construction Co., 83 Wash.2d 86, 515 P.2d 821 (1973).
“A statement of the California court in the Li case is representative of the reasoning which pervades all of the above opinions:
“ ‘We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of the risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.’ 119 Cal.Rptr. at 873, 532 P.2d at 1241.
“There appear to be few jurisdictions which adhere to the position that comparative negligence and voluntary assumption of the risk can be harmonized. See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959); Harris v. Hercules, Inc. 328 F.Supp. 360 (E.D. Ark. 1971).
“Appellant directs us to a Florida case, Dorta v. Blackburn, Fla. App., 302 So.2d 450 (1973), in which a Florida District Court of Appeals held that the Florida State Supreme Court:
“ ‘appears to have recognized the continued existence of the common law defense of assumption of the risk notwithstanding its adoption of the doctrine of comparative negligence.’ 302 So.2d at 451.
“More recently, however, another Florida District Court of Appeals took a contrary approach, holding that:
“ ‘[t]he defense of assumption of the risk is no less “a primitive device of achieving justice between parties who are both at fault” than was contributory negligence. It should meet the same fate as contributory negligence and not constitute a complete bar to recovery where comparative negligence is the measuring standard for recovery.’ Rea v. Leadership Housing, Inc., Fla.App., 312 So.2d 818, 822 (1975).” 354 A.2d at 401-403.
The Wilson court concluded with a statement which is applicable to our decision here.
“Since, in the case now before us, it cannot be seriously contended that the appellee contractually assumed the risk of his injury and since we now decide that the doctrine of voluntary assumption of the risk is no longer viable, it is evident that appellant’s request for an instruction on assumption of risk was properly denied.” 354 A.2d at 403.
As stated earlier, the elements of the doctrine of assumption of the risk are not present in this case. However, when this situation does arise, we will follow the modern trend and treat assumption of the risk like any other form of contributory negligence and apportion it under the comparative negligence statute.
The fourth issue is whether the District Court erred in not granting summary judgment on plaintiff’s Count No. II.
Count II of the complaint is identical to Count I except for an addition which, in effect, claims misrepresentation as to the odometer reading. Count II states in pertinent part: “If said vehicle had not been driven an additional forty thousand miles than was represented to plaintiff, plaintiff alleges on information and belief that the accident which is the subject of this action would not have occurred.”
Defendant contends that plaintiff “has misunderstood” the Montana Unfair Trade Practices and Consumer Protection Act and specifically sections 30-14-103 and 30-14-104, MCA. Defendant states that under the Act, the Department of Business Regulations may only adopt rules not inconsistent with the federal Act and decisions thereunder. It contends a reading of the cases annotated under 15 U.S.C.A. § 45 (1973) shows that the purpose of the federal statutes is to prevent unlawful restraint of trade and submits that since the Montana Department of Business Regulations may not adopt rules inconsistent with the federal law, it is improper to have a regulation which deals with sales. Such regulation is, according to defendant, outside the scope of the enabling legislation.
Defendant’s arguments are misplaced.
Section 30-14-103, MCA, states:
“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.”
Section 30-14-104, MCA, provides:
“1. It is the intent of the legislature that in construing 30-14-103 due consideration and weight shall be given to the interpretations of the federal trade commission and the federal courts relating to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C., 45 (a)(1)), as amended.
“2. The Department may make rules interpreting the provisions of 30-14-103. Such rules shall not be inconsistent with the rules, regulations, and decisions of the federal trade commission and the federal courts in interpreting the provisions of section 5(a) (1) of the Federal Trade Commission Act (15 U.S.C., 45(a)(1)). as amended.”
A.R.M. § 8-2.4(2)-S440 provides in part:
“It shall be an unfair or deceptive act or practice for a motor vehicle dealer to: “. . .
“(3) represent the previous usage or status of a motor vehicle to be something that, in fact, it was not; or make such representations unless the dealer has sufficient information to support the representations.”
Section 30-14-133, MCA, provides in part:
“(1) Any person who purchases or leases goods or services primarily for personal, family, or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act, or practice declared unlawful by 30-14-103 may bring an individual but not a class action under the rules of civil procedure in the district court of the country in which the seller or lessor resides or has his principal place of business or is doing business to recover actual damages or $200, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained and may provide such equitable relief as it considers neces-ary or proper.”
While the main purpose of the federal statute is to prevent unlawful restraint of trade, there is nothing in the cases to indicate that the above rule of the Department of Business Regulations is inconsistent with the federal cases or the enabling^ legislation.
The District Court was therefore correct in denying summary judgment on this matter. A determination of whether the alleged violation was a cause of plaintiff’s damages is a question of fact for the jury to determine. As such, it was not ripe for summary judgment.
As part of defendant’s case-in-chief, counsel for defendant attempted to impeach plaintiff by introducing in evidence a deposition taken of plaintiff by defendant prior to trial. Objection was made upon the grounds of repetition, inadmissibility of the deposition and improper impeachment evidence. The court adjourned to chambers to hear the evidence and argument, and after offer of proof, denied the use of the deposition as proposed.
The District Court was correct in so ruling under the circumstances in this case. Plaintiff had been extensively cross-examined by defendant during plaintiff’s case-in-chief. She had gone to her home because of her physical condition and was not present at the time the deposition was offered, nor at the time of the offer of proof (though defendant asked that she be returned to court for the purpose of using the deposition).
The issue presents a question of interpreting what the rules allow regarding depositions used for impeachment purposes. It is to be noted that Rule 32(b), M.R.Civ.P., provides:
. . objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.”
The matter is governed by the provisions of Montana Rules of Evidence, Rule 613. That rule provides:
“(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown or its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
“(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).”
This rule is fairly new, and practitioners would be well-advised to study its provisions. If the witness is on the stand and testifying, a cross-examiner may ask the witness about prior statements made by the witness, without first showing the witness the written deposition or writing in which the prior statement is contained. This is a permitted departure from the former practice, where, in impeachment, it was required that the writing containing the-prior inconsistent statement be first shown to the witness.
The method chosen by the cross-examiner in this case, however, violated the provisions of subdivision (b) of Rule 613. The witness was not on the stand. The cross-examiner proposed to offer in evidence, in the absence of the witness, a deposition taken of the witness pretrial for the purpose of impeachment. Thus the deposition itself was extrinsic evidence of a prior inconsistent statement. It was not admissible unless the witness had an opportunity to explain or deny the same, and the opposite party was afforded an opportunity to interrogate her on the deposition. This foundational requirement not having been met by the cross-examiner, the District Court was correct in denying the admission into evidence of the deposition or any part of it under Rule 613(b), Mont.R.Evid., and the provisions of Rule 32(b), M.R.Civ.P., foregoing.
It is, of course, not necessary under the new rules of evidence that impeachment evidence or prior inconsistent statements be offered during the cross-examination of the witness. Under Rule 613(b) it can be done at any time during the trial (see Advisory Committee’s Note under section 613, Federal Rules of Evidence). Thus in a proper case, a party may demand a return to the stand of any witness not excused for the purposes of impeachment through prior inconsistent statements. Here that demand was properly denied by the District Court on the grounds of repetition of the proposed testimony. Its discretion on that point governs us, and we agree the proposed evidence would have been repetitious. In any event, however, the deposition itself, as extrinsic evidence, is admissible only under the conditions of Rule 613(b), Mont.R.Evid. Therefore, no error occurred in this trial respecting the proferred impeachment evidence.
Plaintiff raises as an issue on cross-appeal whether the jury’s reduction of damages from $650,000 to $422,500 should be sustained. It appears that plaintiff made no objection at the trial on this issue. Generally, we will not consider issues raised for the first time on appeal. Hash v. Montana Power Co. (1974), 164 Mont. 493, 524 P.2d 1092.
Even if this question were to be considered by this Court under a comparative negligence scheme, the question of plaintiff’s negligence is a question of fact for the jury to decide. Our function is to determine whether there is substantial credible evidence to support the jury verdict. To this end we must review the evidence in the light most favorable to the prevailing party in the District Court. Noll v. City of Bozeman (1977), 172 Mont. 447, 564 P.2d 1296.
The jury was entitled under the facts presented to find as it did. We find sufficient credible evidence to support the verdict of the jury on all questions.
The remaining issues raised by both parties present alleged elements of error, which even if true, would not be reversible error. Discussion of those issues is therefore unnecessary.
In conclusion, the case under consideration was deemed submitted at the close of oral arguments, and no permission to plead further being granted, the supplemental briefs of the parties were neither accepted nor considered in this cause.
The judgment of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA and SHEEHY, concur.
|
[
-80,
49,
-3,
-25,
10,
-60,
17,
-28,
6,
41,
4,
14,
1,
21,
-7,
-66,
66,
14,
-4,
-27,
18,
-35,
-40,
-10,
-23,
-43,
45,
-63,
-35,
-58,
-5,
8,
11,
-32,
-14,
68,
-18,
46,
16,
29,
-5,
44,
16,
6,
-6,
-34,
21,
-38,
40,
-14,
11,
-28,
-18,
-26,
16,
11,
15,
113,
-54,
44,
32,
-52,
35,
13,
26,
-27,
17,
-22,
8,
45,
-61,
-11,
17,
0,
-60,
-17,
-15,
76,
-39,
-34,
2,
-11,
84,
17,
37,
3,
11,
24,
-71,
-23,
-62,
2,
53,
48,
39,
35,
-16,
-12,
1,
25,
-3,
-10,
8,
39,
-37,
-3,
-56,
-27,
31,
-3,
43,
38,
-15,
10,
15,
-17,
33,
9,
18,
11,
34,
-61,
-15,
-29,
56,
-19,
22,
32,
5,
0,
23,
18,
29,
45,
-4,
-38,
-57,
-65,
-36,
15,
32,
38,
7,
-5,
-5,
71,
18,
-25,
-6,
-14,
-26,
15,
20,
-24,
19,
-84,
-26,
-17,
34,
-30,
7,
-32,
-3,
44,
3,
20,
-22,
17,
30,
-24,
0,
-28,
4,
-72,
36,
1,
18,
-51,
-56,
-21,
-3,
13,
28,
18,
-12,
-24,
-27,
1,
-14,
0,
48,
5,
-29,
-5,
-23,
4,
32,
23,
37,
0,
9,
-48,
-17,
-30,
9,
1,
-14,
-22,
12,
-7,
19,
1,
23,
1,
-4,
3,
15,
-23,
-21,
-22,
-18,
0,
-8,
-57,
-6,
-4,
-36,
-1,
9,
-1,
-14,
36,
-13,
-11,
9,
-40,
25,
-54,
-19,
2,
25,
22,
24,
-10,
4,
18,
-1,
13,
2,
-11,
20,
32,
26,
-30,
-2,
-35,
33,
16,
-22,
12,
60,
33,
-8,
13,
-12,
-43,
33,
-16,
9,
-16,
-18,
-19,
28,
41,
-3,
-48,
-24,
33,
56,
24,
-22,
-66,
6,
-61,
19,
67,
-1,
48,
-23,
-16,
-11,
-4,
23,
7,
-14,
-4,
5,
-30,
-48,
25,
-34,
-25,
-42,
17,
31,
-28,
-41,
34,
-28,
67,
-19,
-66,
44,
55,
40,
28,
-25,
-41,
-7,
12,
40,
58,
-17,
51,
9,
43,
27,
-24,
-28,
-39,
50,
34,
-48,
-8,
67,
-37,
-20,
-28,
-3,
5,
57,
4,
9,
35,
2,
-17,
-1,
36,
-4,
29,
-14,
-6,
14,
-21,
4,
-15,
62,
-21,
-23,
14,
62,
16,
17,
16,
3,
28,
40,
-8,
-73,
71,
-25,
-9,
-15,
43,
3,
-99,
-14,
-23,
-23,
40,
29,
-42,
-20,
-59,
-39,
27,
-3,
-63,
-35,
44,
-49,
29,
4,
34,
21,
-49,
-13,
-54,
-90,
-23,
-60,
87,
-22,
-95,
-17,
10,
53,
22,
-14,
-26,
-16,
-55,
12,
4,
-21,
-4,
62,
-5,
-66,
-34,
2,
33,
-29,
-27,
59,
-7,
2,
3,
-26,
68,
6,
7,
22,
-13,
7,
-1,
70,
-20,
42,
41,
21,
28,
-26,
-4,
-8,
-9,
18,
12,
71,
18,
0,
-9,
50,
-2,
23,
28,
64,
-34,
1,
-9,
24,
-79,
-53,
3,
-22,
-44,
51,
-26,
-5,
-30,
26,
29,
48,
10,
72,
22,
-16,
-37,
19,
23,
-50,
-21,
23,
-41,
0,
-46,
-47,
-8,
-35,
-13,
30,
21,
18,
5,
3,
-35,
0,
-3,
44,
-28,
-28,
-48,
-61,
-2,
23,
-45,
49,
-20,
-5,
-20,
-19,
33,
32,
-4,
20,
36,
14,
11,
5,
26,
35,
-30,
-27,
12,
11,
-10,
23,
27,
-2,
-56,
-5,
26,
-21,
5,
-7,
5,
-4,
-12,
5,
-25,
29,
21,
-20,
4,
-9,
22,
-26,
25,
57,
-9,
81,
-23,
-1,
-13,
8,
19,
-28,
-33,
28,
-9,
14,
39,
3,
18,
49,
37,
5,
-59,
16,
-24,
-50,
-13,
-2,
-29,
-7,
-40,
-39,
-21,
-23,
7,
-39,
19,
-11,
24,
-39,
-6,
43,
41,
-26,
-14,
30,
20,
27,
4,
12,
10,
-18,
-34,
-28,
-23,
-57,
5,
10,
22,
22,
-6,
-32,
-4,
25,
-10,
28,
22,
-6,
-38,
51,
-71,
-30,
-26,
16,
19,
4,
-34,
19,
-5,
40,
15,
-4,
13,
-28,
30,
-6,
-6,
-13,
8,
-11,
50,
36,
41,
-35,
-49,
32,
25,
51,
-24,
-7,
-13,
5,
11,
-10,
-63,
-30,
17,
12,
-40,
-1,
50,
2,
-41,
-18,
-5,
-10,
-5,
-22,
-51,
-22,
0,
-8,
18,
-49,
81,
-17,
-19,
33,
-13,
30,
31,
-24,
36,
-24,
-16,
30,
-40,
25,
-20,
-21,
6,
-37,
-17,
59,
-17,
-43,
1,
-31,
-11,
13,
40,
62,
48,
-34,
6,
-1,
-15,
8,
20,
-30,
72,
36,
-4,
24,
-31,
9,
-14,
-14,
-27,
50,
-2,
20,
-26,
-107,
-40,
5,
-59,
-26,
-43,
47,
13,
13,
12,
1,
51,
8,
15,
38,
28,
-4,
46,
55,
-52,
18,
-32,
-7,
45,
53,
-9,
-22,
15,
-43,
-29,
40,
-74,
-23,
-43,
54,
-14,
-12,
-33,
-6,
16,
-21,
-32,
34,
14,
26,
45,
54,
46,
48,
-11,
-29,
-34,
-8,
4,
47,
-24,
-53,
-42,
35,
-8,
17,
-9,
-18,
-34,
25,
38,
-7,
-1,
-7,
21,
30,
-4,
9,
41,
-12,
9,
24,
11,
69,
10,
-1,
-31,
-11,
-5,
43,
13,
8,
-5,
-1,
-3,
66,
1,
18,
-23,
6,
-54,
46,
-40,
46,
0,
-49,
13,
27,
-9,
-40,
10,
1,
-18,
-44,
-23,
-1,
34,
4,
-29,
-19,
46,
-72,
15,
45,
22,
0,
-13,
4,
6,
-57,
58,
-4,
1,
10,
0,
-3,
-6,
-27,
-35,
-19,
-9,
-24,
12,
-4,
-16,
1,
-13,
-27,
16,
-25,
39,
21,
-21,
-18,
28,
-30,
16,
-4,
55,
-1,
43,
36,
5,
7,
-75,
22,
11,
2,
-29,
-79,
51,
-25,
-49,
-17,
-15,
-49,
57,
-32,
8,
-18,
-62,
-4,
-24,
-27,
30,
12,
-54,
6,
2,
13,
6,
16,
-11,
-7,
6,
-58,
0,
42,
-7,
36,
12,
22,
36,
23,
-2,
35,
-9,
-19,
-20,
-55,
-45,
66,
-48,
-54,
-22,
-28,
39,
-43,
-4,
22,
16,
5,
-15,
-82,
-33,
16,
2,
46,
-12,
23,
27,
6,
-97,
-10,
-35,
-84,
61,
45,
22,
-26,
32,
0,
-10,
-26,
-11,
13,
40,
-12,
9,
60,
-1,
61,
-20,
8,
35,
24,
6,
23,
-3,
-12,
-6,
-26,
-20,
22,
-28,
-39,
17,
-17,
4,
0,
29,
34,
-34,
16,
37,
-44,
4,
-18,
-30,
31,
40,
-6,
-13,
6,
38,
28,
-28,
2,
-19,
-2,
-34,
-12,
-13,
-10,
-12,
28,
14,
-18,
27,
-18,
10,
-22,
-5,
24,
-26,
20,
-39,
-20,
13,
18,
-20
] |
ORDER
PER CURIAM:
The Montana Legislature has by resolution requested changes in the procedures and requirements for the admission to the practice of law in Montana. A constitutional amendment was presented to the electorate at the last general election, resulting in an affirmation of the constitutional provision that the Supreme Court continue to be the rule-making authority with regard to admission to the Bar of Montana.
During the past year this Court, in the exercise of its rule-making obligation and with the fundamental purpose being to protect the public from incompetent practitioners and to insure fairness in the admission of qualified individuals who wish to practice law in the State of Montana, proceeded as follows.
The Court promulgated the following questions to be answered: (a) What should our rules provide concerning eligibility and qualifications for taking the Bar examination? (b) Should graduation from a law school approved by the American Bar Association be required as a condition of eligibility to take the Bar examination? (c) What should our rules provide concerning procedures and practices of the Board of Bar Examiners in conducting their examination? and, (d) Should graduates of the University of Montana School of Law and/or graduates of any other law schools approved by the American Bar Association be admitted to practice law in Montana without taking the Bar examination?
To assist the Court in this search for proper solutions, input was received from widely divergent sources, including laypersons, the academic community, legal and judicial groups. A committee of seventeen persons from all walks of life was appointed by this Court to answer to us with their opinions concerning the four questions enumerated above.
After returns were in upon solicited opinions, a public hearing was conducted by the Supreme Court in the courtroom at the Capitol Building in Helena, Montana, and after proper notice was given to the citizens of the State of Montana, all were invited to attend and voice their opinions. A great share of these people did come and did voice their opinions to this Court.
Thereafter this Court made a thorough review of the most recent studies on the subject of Bar examinations and all related matters, as well as a thorough review of the methods employed by our forty-nine sister states. This has been a mammoth undertaking, and this Court has now reached conclusions that we feel and believe to be the majority thinking from all the sources enumerated. From them we reach our answer to the initial four questions as follows.
First and foremost, the complexity of the law as it has developed in our modern society has rendered our present system for admission to the practice of law outdated and inadequate to serve the present needs of the legal and judicial system. It necessarily follows that the public is not being properly protected. The wrong people are making threshold decisions that have the effect of transferring control of the admission of lawyers to the Bar away from the court of last resort, i. e., when we eliminate from examination all but graduates from American Bar Association certified schools and extend the diploma privilege to our state law school graduates, we have effectively turned over the selection of who becomes a member of the Montana Bar to the American Bar Association, a nonprofit professional association, and the University of Montana School of Law. This is contrary to all present practice and has no recognizable redeeming value.
The obvious solution and the one we have selected is the institution of a new and modern Montana Bar examination process which will be a prerequisite for admission to the Bar of Montana.
Since the legislature appears to be dissatisfied with the admission policies, the legislature will be asked to bear the burden of any increased expense, and the Montana Bar will be asked to recognize and bear the burden of its responsibility in helping to make the Bar examination a successful part of their obligation to the profession. Also, the fee to sit for the Bar examination will be substantially increased. There must be a balance between serving society and the fact that the law has obtained a complexity in modern times which is just a little too much for the ordinary citizen to assimilate in its totality. When we accept this rationale, there is obvious reason and purpose in evaluating competency through the use of more rigid and uniform minimum requirements for admission to the profession, and this will be done in the public interest.
Therefore, we hold as follows:
(1) A Bar examination will be a prerequisite for admission of all law school graduates to the Bar of Montana.
(2) Eligibility to participate in the Bar examination will not be limited to any particular class of law schools. The Supreme Court will approve the law schools based on numerous factors including hours of instruction, degree offered, certification by their own state court of last resort, and other standards including but not exclusive to certification by the American Association of Law Schools and the American Bar Association.
(3) There will be an examination to admit practicing attorneys from other jurisdictions who do not qualify under our rule on reciprocity.
(4) There will be two examinations given each year.
(5) There will be a grandfather clause for any person in the process of becoming a student of the University of Montana School of Law or a present student of that school, and/or people who have applied to take the examination (essentially, all those who have any probable contractual right to expect to be treated under the old rules covering any change in the qualifications to take the Bar examination or qualifications for admission to practice).
BAR EXAMINATION
This brings us face to face with the multiple problems of reconstruction of the Board of Bar Examiners and the examination process. This, admittedly, is complex and probably the principal reason that reformation has never been more than discussed.
We have an excellent Board of Bar Examiners, but each succeeding administration has taken advantage of their willingness to perform all of the duties required to give a Bar examination without adequate staff and assistance required to make and carry out whatever policy becomes necessary to keep abreast of changing times. So, from the beginning, this analysis is not intended to be in any way a reflection, on the present Board of Bar Examiners. If the Board had been given any real encouragement throughout the years, this study would not be necessary.
A misconception exists as to the effect of adoption of the multi-state bar examination, i. e., that adoption would cause a great independent change and that this is all that is needed to bring the Montana examination system up-to-date. However, it is amply supported that this is simply a first step toward a complete and meaningful revision of the procedures for examining and licensing lawyers and, hopefully, toward uniformity in the bar examination process throughout the United States. The multi-state examination would, however, overcome one problem that all bar examiners feel they have: lack of time and resources. As expressed by our Bar Examiners, they simply do not have the time, resources or the desire to take on seventy more students each year from the Montana Law School.
The multi-state examination serves as only a part of the bar examination in most states now using it. Generally, it is supplemented with whatever essay material the examiners feel is required to complete the bar examination process. A hybrid examination, part essay and part multi-state, would justify an overhaul of the present examination’s scope, i. e., it is generally thought to be too broad and cover too many subjects. Those states using the combination examination have overcome this problem and have made substantial changes in content and effect of the essay portion. Some have used the multi-state in grading only if the person has done poorly on the essay portion of the examination, or visa versa.
The modern concept is that the State Bar, and especially so if the Bar is unified, will furnish its most recent members to assist and work under the direction of the Board of Bar Examiners. These new members will be making a required contribution to their profession. Example: One segment drafts the required questions on constitutional law and an acceptable model answer. They attend, monitor and grade that portion of the examination under whatever rules are promulgated by the Board of Bar Examiners. The subject content of the examination is published in advance and is held to the basic subjects plus any particular subjects that are peculiar to the state’s economic structure.
There shall be at least a minimum right of appeal offered each person taking the examination. The Board of Bar Examiners will determine the scope of this appeal. They will promulgate rules to be approved by the Supreme Court.
In addition to State Bar participation, the Board of Bar Examiners should be funded and able to function as such and to oversee, rather than perform, all of the mundane tasks.
The quality of the bar examiners, their qualifications, and safeguards against their abuse of power are controlled in most states by the Supreme Court. This is perhaps one of the only uniform elements discovered during this project. On the other hand, there are some, like us, who inadvertently or indirectly do not control it. In some states the responsibility has been turned over to the law schools, public educational institutions, and professional associations like the American Bar Association.
Most courts appoint their bar examiners. In Alabama, Alaska, California, Idaho, Nevada, North Carolina, Oregon, Utah and Washington, appointment is made by the governing board of the State Bar Association. In Mississippi, the governor appoints from nominees by the Supreme Court. In these particular jurisdictions (and there are some respectable jurisdictions here), the bar association takes an active part in this program, making it a little less expensive to institute proper methods. Again, we have been talking about this for some time.
In many states, like Montana, where there are no statutory or court rules with specific instructions as to examination procedures and content, or provisions for appeal, the bar examiners dictate their own rules, regulations, bar passage requirements, bar examination content, and provisions for expedient and proper conduct in the discharge of their duties and the conduct of the examination. (Here, we might reiterate that this is just one more example of court loss of control in determining who can take the examination.) The states, including Montana, who operate without official regulation, have turned over the examination process to some other body. Thus, the Montana Supreme Court has little or nothing to say about who becomes a member of the Bar of Montana. We pacify ourselves by saying we have the power, we make the rules, we do this or that, but we do not have anything to say about the individual person who becomes a member of the Montana Bar.
We might say something more about the multi-state bar examination here since it attempts to solve at least some of the problems we have just been addressing and could reasonably be used in every state. It is confined to the basic legal subjects. It was put together by the conference of bar examiners in 1972 and was made available to anybody who wants to use it. At present it consists of 200 multiple choice questions allocated among six basic areas: Contracts (40 questions); Constitutional Law (30 questions); Criminal Law (30 questions); Evidence (30 questions); Real Property (30 questions); and Torts (40 questions). There has been talk of putting Ethics in the examination, but this has not been done yet. These questions are developed in cooperation with the Educational Testing Services and all papers are graded by their headquarters. It is a computerized situation reducing the possibility of subjectivity and inequity. Forty-three states have accepted this examination, and the District of Columbia is now using or planning to use it. In each case, these states supplement the examination with questions promulgated by their own bar examiners.
(1) We will adopt the multi-state bar examination to be supplemented by essay-type questions recommended by the Board of Bar Examiners and approved by the Supreme Court.
(2) As indicated previously, there will be a substantial increase in the fee for sitting for the Bar examination in Montana, which will include the cost of the multi-state bar examination plus a minimum of $125.00 additional fee which will help defray the remaining costs of the Bar examination. Administrative costs are on the increase and the Board of Bar Examiners that is working with the State Bar is directed to investigate costs, implement a plan, and submit the proposals to the Supreme Court.
(3) Any person who has qualified to sit for the state Bar examination will be limited to sit three times within a five year period, except by petition to the Supreme Court.
QUALIFICATIONS AND ADMISSION TO PRACTICE
(1) Reciprocity. The fact that an applicant is practicing in a sister state and that that state extends reciprocity to Montana shall be prima facie evidence of fitness to practice in this state and to be admitted on reciprocity, reserving to the Supreme Court the power to review such circumstances as might be indicated.
(2) Clinical training. Our own profession has been critical in the recent past, from Chief Justice Burger to Chesterfield Smith, on the ability of lawyers to properly perform their duties and particularly in the trial of cases. This criticism does not come from the general public. The composite of their comment is that we have never had so many well-qualified applicants or so many law schools as we have today. So, we must, if we change at all, provide a system that will furnish better lawyers to the profession.
The collapse of the apprenticeship system has been accepted by the bar and the courts with little or no regard or concern for substituting more adequate formal or practical training in the clinical sense. Plainly stated, the Bar of the United States has abdicated its role in the education of lawyers. Public authorities, namely the courts and the bar examiners, have failed to protect the public against the effect of licensing lawyers who have never seen a client or a judge.
Each one of the segments referred to here have cooperated or collaborated in licensing lawyers without any practical training. Somehow they believe that graduates are qualified based on the work they do in law school, with absolutely no clinical training that amounts to anything. They adopt a laissez-faire attitude that each lawyer who practices will become competent one way or the other. This leaves the public to protect and shift for itself. And again, as this clinical training has become more and more important to law schools and to us, it has vanished insofar as the examining process after law school is concerned. It comes down to this — that it is a very important part of the process that has been avoided up to now and it is not likely to go away.
The complexity of our profession is becoming more evident everyday. Clinical training is essential in some form or another, and it is going to have to be required. The lawyer who is looking to be admitted to the Bar must have some kind of clinical training and “X” number of hours of some kind of experience in that area before he presents himself to the public. This may be accomplished before or after they sit for the Bar examination, but the system must regulate the practice of those who have not completed their training.
We feel it is desirable to institute minimum requirements for clinical training by the law graduate before final admission to the State Bar of Montana. We have seen the law schools change in response to pressure for clinical legal education, and as the changes have occured in law schools, it is time now also to look at the process for qualifying persons for admission to the Bar. Without exception, the process needs modernization. The Bar admission rules for student practice have, of course, introduced some clinical training into the law school curriculum. As is so sorely needed, this has begun to make a change for the better in the law school. However, the vast majority of Bar admission authorities, including Montana, have not kept abreast of the changes that are being made in the law schools. We would approve supervised clinical training during law school, e. g. law office internships, judicial clerkships, public defender projects, prosecuting attorney internships, legal aid societies, and similar activities approved by the Board of Bar Examiners.
The Board of Bar Examiners is directed to promulgate rules relating to clinical training as a condition for admission to practice, as set forth above in terms of experience internships, and the like. These rules will be submitted to the Supreme Court for approval.
(3) Diploma privilege. There is no substantial or acceptable argument for retention of the diploma privilege. Its primary purpose has long since ceased to exist —i. e., incentive to attract students to a small law school as it struggles to gain recognition in the legal community or the common argument that the last quarter of law school must be devoted to preparing the student for the bar examination which is a detriment to their normal course of study.
There is, in fact, a double standard created by the diploma privilege and the Bar examination as it relates to admission to the Bar in Montana. This standard goes beyond the courses offered in the law school and given on the Bar examination. It is the fact that the diploma privileged person enters the job market in June, whereas a Montana resident forced to attend an out-of-state law school must wait until October to take the examination, and in some cases does not pass fairly enough, many people have elected to attend schools outside the State of Montana. It is also noteworthy that the University of Montana School of Law is no longer struggling. It is turning away many, many students who are Montana residents and who would like to remain here to go to school. Also, we should be encouraging our young people to go to other schools outside the State of Montana for the diversity of educational background and the intellectual exposure which is essential in a free society. There is no doubt that the University of Montana School of Law is very good, but concentrating Montana graduates into the Montana Bar becomes dangerously parochial.
The effect of a diploma privilege on the student and on the faculty of a law school that extends the privilege is subtle but sometimes harmful. There exists the possibility of abuse and the standards of the law school may be affected by the fact that nobody really does his best until he has to. Knowing that their students are not to be examined, some professors may be prone not to put forth their best efforts, or at least a better effort than they did the previous year teaching the same course. Under some circumstance, the curriculum can be adjusted to teach the students what they want the students to know, and there is nothing in the world to prevent this.
E. Marshall Thomas, the former chairman of the National Conference of Bar Examiners, makes the point that even though all subjects were the same on the school curriculum and on the bar examination, it would still not be an idle act to require that they take the examination since it serves a real additional purpose. The fact that the law student knows he must face the Bar examination after graduation and before admission to practice is a healthy, educational stimulant. Mr. Thomas further contends that it is also a stimulant to the law school faculty to maintain high standards of legal education because the faculty knows that their students will be examined by state authorities. He says that the Bar examination serves an additional function in that the Bar examination has one essential difference from the law school examination — it is a comprehensive examination covering the entire field of several years of law study.
Further, the American Bar Association has taken a positive, clear and very hard stand against the diploma privilege in connection with the standards of legal education and A.B.A. approval of law schools. Further, there are very few jurisdictions left which permit this kind of privilege. The A.B.A. Section of Legal Education and Admission to the Bar is very strong in its opinion that graduation from a law school should not confer the right of admission to the Bar and that every candidate should be subject to an examination by a public authority to determine his/her fitness.
The University of Montana School of Law has stressed that the Supreme Court members, or rather two of them, are on the Board of Visitors and can oversee and control the curriculum of the school. The A.B.A. says that this is not right, that there is no public officer or officers or departments who control the curriculum of any school. Their job is to see that the school turns out properly educated people who can adequately serve the public. Any attempt to control curriculum content would be an unfortunate limitation of the educational freedom of the school and could not be tolerated in the name of the diploma privilege.
It follows then that to reach our ultimate goals, the diploma privilege must be eliminated. However, at that time, those students who have applied and will be accepted or are accepted or are in the law school when these changes are made, will be given the benefit of all privileges held out to them, i. e., a grandfather-type concession will be afforded to those with any remote contractual right to be a beneficiary of the diploma privilege, as set forth above.
This Court orders the diploma privilege abolished in conjunction with the other changes to be made in our qualifications and admissions to practice.
(1) The Bar examination shall not be limited to those graduates of American Bar Association approved laws schools, but rather the Supreme Court of the State of Montana under conditions set forth in this opinion will approve the law schools from which students may apply to sit for the examination in Montana.
(2) We have provided a grandfather clause in any changes in qualifications.
(3) We have retained the present rule on residency.
(4) We have authorized the adoption of the multi-state bar examination to be supplemented by an essay type examination recommended to the Supreme Court by the Board of Bar Examiners.
(5) We have authorized an increase in the minimum fee for taking the Bar examination to cover the additional costs required for the updating of the examination and for the multi-state bar service.
(6) We have authorized and ordered the Board of Bar Examiners in conjunction with the State Bar to investigate rising administrative costs and the effect of inflation, and to implement a plan and submit proposals to the Supreme Court.
(7) We have directed that the Bar examination be given two times each year.
(8) We have made limitations on the number of times a person qualified can sit for the Montana Bar.
(9) We have provided for administrative review to be initiated by anybody who takes the Montana Bar.
(10) We have retained our six-month residency requirement for admission to the Bar in Montana.
(11) We have retained a reciprocity consideration for outside attorneys whose states grant the same privilege to Montana.
(12) We have provided and directed that a rule be drawn requiring experience in terms of internships and clinical training as a prerequisite to admission to practice; and that the Board of Bar Examiners is to promulgate rules relating thereto and submit them to the Supreme Court for approval.
(13) We have, for good reasons, abolished the diploma privilege.
(14) As said above, for all changes to be brought about by this opinion, we of course are extending a grandfather clause to those who are entitled.
We think in all fairness and in good conscience that we can do no less than to agree with most of the criticism and comment given us by those invited to stand before us, who filed briefs, and the secondary text material, which without question gives a very detailed and knowledgeable analysis of the system including portions that are important to us and the changes that we contemplate making. The rulings in this opinion, we think, fairly accomplish the matters upon review and will provide a better system when perfected for those wishing to practice law in Montana. We think the rulings are fair and just for all concerned.
|
[
47,
-1,
20,
-35,
12,
-7,
31,
18,
-61,
65,
8,
0,
36,
-61,
38,
-7,
-60,
-3,
-11,
8,
-70,
40,
-16,
9,
14,
31,
37,
52,
-30,
10,
-12,
32,
-24,
-11,
-31,
5,
-21,
20,
18,
36,
73,
0,
36,
-48,
-30,
36,
55,
-13,
-24,
-35,
-18,
0,
6,
32,
3,
7,
0,
-16,
-52,
43,
18,
60,
-1,
60,
41,
6,
20,
22,
17,
-17,
-68,
13,
-34,
14,
-38,
-31,
48,
-50,
-57,
34,
5,
6,
19,
-26,
2,
-13,
-5,
34,
22,
-19,
-48,
6,
-21,
-27,
-24,
-56,
-7,
-30,
55,
11,
-16,
-50,
-26,
-62,
-29,
-57,
-116,
45,
89,
-1,
19,
-6,
-28,
-48,
13,
4,
-43,
49,
-20,
-3,
-35,
94,
-45,
-18,
-34,
-25,
-35,
-5,
-47,
-18,
-72,
20,
-29,
9,
-31,
17,
-41,
11,
-7,
-23,
48,
5,
11,
-12,
17,
21,
-57,
-30,
14,
-41,
50,
-9,
21,
19,
13,
-11,
-10,
-9,
74,
-40,
20,
-28,
-23,
39,
45,
59,
-26,
-6,
36,
-56,
-20,
-17,
31,
102,
62,
33,
-3,
33,
-9,
0,
-17,
34,
57,
-35,
-25,
91,
-11,
-10,
28,
-23,
-29,
2,
32,
-35,
-16,
-41,
8,
35,
-36,
-5,
-19,
9,
-7,
11,
23,
42,
-26,
-29,
-14,
-28,
26,
32,
-22,
8,
58,
-46,
-18,
-17,
14,
-40,
-46,
-25,
0,
-68,
-29,
-36,
38,
26,
5,
-24,
-5,
-39,
7,
10,
104,
-13,
-31,
21,
42,
5,
0,
8,
35,
-5,
18,
23,
-45,
-43,
3,
-49,
80,
44,
70,
3,
9,
43,
46,
29,
-26,
-47,
26,
-12,
28,
-38,
-26,
30,
11,
-18,
39,
4,
11,
8,
-3,
6,
-40,
4,
21,
-74,
-2,
-26,
3,
34,
-60,
50,
-27,
-10,
-45,
-14,
-55,
-16,
-97,
2,
8,
-2,
41,
-23,
2,
21,
-49,
-36,
59,
21,
47,
22,
-62,
19,
-60,
18,
45,
-60,
-38,
34,
-47,
5,
52,
-5,
-6,
22,
32,
1,
22,
-19,
75,
-9,
16,
0,
60,
-4,
46,
-23,
7,
-24,
24,
52,
7,
-17,
73,
39,
-12,
45,
67,
-56,
15,
3,
-1,
7,
-58,
-43,
-39,
-13,
-8,
25,
-20,
48,
-21,
-46,
-6,
-17,
14,
-31,
-36,
-7,
4,
35,
-66,
-7,
-50,
33,
28,
-68,
-26,
-12,
47,
22,
59,
26,
75,
43,
-68,
54,
-52,
-21,
-48,
-24,
21,
33,
12,
-25,
-4,
-21,
17,
-1,
-35,
-17,
-9,
17,
-10,
-16,
31,
21,
29,
28,
16,
35,
8,
-4,
-46,
-12,
-28,
37,
-37,
4,
-29,
-18,
17,
23,
-26,
-14,
-56,
43,
-63,
-47,
7,
13,
-38,
-12,
12,
-3,
-66,
31,
-68,
-2,
24,
43,
-5,
-53,
0,
-14,
-5,
11,
2,
-5,
-15,
-10,
-6,
12,
-3,
3,
-2,
8,
20,
65,
-12,
-5,
-44,
15,
-28,
41,
-19,
-21,
-34,
0,
-10,
30,
6,
-20,
-23,
-18,
26,
15,
-19,
-8,
-7,
52,
37,
47,
26,
46,
-57,
-8,
-2,
-10,
-11,
7,
-66,
-50,
-22,
50,
-18,
0,
-59,
-6,
0,
-11,
-67,
43,
33,
-66,
-38,
34,
8,
33,
-80,
-31,
-26,
-50,
-27,
41,
-17,
-8,
25,
-15,
38,
21,
-7,
60,
24,
3,
-43,
-8,
17,
32,
22,
1,
-18,
-9,
-49,
-22,
28,
-17,
-30,
57,
-5,
5,
-5,
46,
9,
24,
14,
-39,
-14,
-19,
44,
42,
5,
13,
24,
8,
71,
12,
27,
6,
-60,
-42,
-27,
15,
-13,
11,
-12,
6,
19,
25,
-76,
29,
10,
41,
-63,
41,
60,
19,
-27,
57,
-7,
-2,
10,
-25,
38,
20,
-75,
7,
45,
27,
-21,
-18,
-46,
-20,
36,
-8,
12,
54,
-24,
-25,
7,
23,
7,
-6,
44,
1,
-33,
19,
-60,
30,
67,
-7,
-40,
42,
-5,
3,
43,
-8,
17,
-64,
-19,
7,
-70,
-3,
-29,
8,
62,
-46,
-46,
-31,
14,
4,
31,
-55,
-59,
21,
33,
14,
24,
28,
-16,
3,
-49,
-71,
-1,
-23,
24,
-4,
-1,
12,
-9,
-9,
22,
52,
14,
103,
7,
-17,
-7,
44,
-46,
-63,
-27,
4,
-38,
-3,
16,
0,
21,
19,
24,
61,
-8,
61,
22,
-53,
10,
15,
38,
4,
-26,
-36,
47,
36,
18,
26,
14,
0,
-74,
-38,
1,
33,
-13,
16,
-13,
5,
50,
13,
44,
-20,
38,
-28,
-5,
-3,
34,
-11,
-22,
-46,
-9,
-61,
-18,
-45,
4,
0,
3,
15,
-13,
-14,
5,
-7,
-21,
-23,
-5,
-92,
-65,
14,
28,
12,
34,
30,
9,
18,
-5,
13,
-59,
39,
55,
-43,
-10,
-18,
-10,
-57,
-16,
26,
33,
-26,
12,
15,
7,
3,
-6,
-6,
-30,
21,
5,
-42,
-66,
-19,
38,
-48,
18,
-23,
-24,
29,
-12,
-17,
-4,
52,
25,
21,
-31,
4,
-7,
10,
49,
14,
-68,
39,
17,
-20,
-20,
-6,
21,
-23,
-32,
-43,
-1,
32,
9,
-92,
-36,
-68,
24,
-20,
-14,
6,
-18,
5,
-29,
62,
32,
13,
53,
0,
-10,
-6,
9,
8,
-6,
-46,
36,
29,
30,
0,
-2,
31,
37,
52,
-32,
-21,
-22,
-63,
-48,
-60,
57,
-9,
15,
-60,
-13,
-25,
35,
55,
20,
13,
-45,
-8,
30,
-6,
-13,
51,
24,
-69,
66,
-18,
-5,
18,
36,
-14,
18,
36,
-37,
0,
29,
36,
-1,
-27,
-25,
7,
-60,
70,
7,
49,
54,
10,
-26,
-61,
18,
35,
3,
-6,
37,
40,
25,
-21,
77,
-26,
10,
58,
-24,
-31,
67,
4,
-11,
-11,
46,
30,
9,
-12,
12,
66,
9,
-24,
-13,
-35,
14,
-31,
30,
-20,
55,
-23,
0,
33,
-4,
-26,
-22,
-42,
-50,
-14,
-53,
-21,
50,
60,
8,
27,
18,
12,
22,
42,
31,
10,
23,
39,
47,
-25,
9,
8,
23,
-18,
12,
2,
0,
24,
-8,
-7,
-24,
-30,
-68,
24,
-11,
37,
54,
-47,
-14,
5,
-29,
102,
-12,
-20,
-16,
1,
91,
22,
15,
35,
-32,
-41,
3,
-36,
0,
-22,
20,
78,
17,
42,
-6,
53,
24,
2,
-13,
2,
-6,
49,
-91,
-58,
-48,
-86,
68,
55,
-38,
52,
2,
40,
-12,
32,
-44,
-27,
47,
-55,
-68,
-61,
91,
18,
-3,
-4,
-12,
-33,
41,
-11,
0,
13,
-79,
-11,
21,
9,
-16,
23,
3,
-12,
54,
20,
-96,
-3,
-39,
-39,
-56,
-40,
-47,
5,
-19,
-55,
-29,
-14,
2,
-23,
1,
-3,
21,
16,
-23,
41,
-34,
41
] |
JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 Mitch Tuttle (Tuttle) appeals from the order of the First Judicial District Court, Lewis and Clark County, affirming the Montana Highway Patrol’s (MHP’s) decision to discharge Tuttle from duty as a highway patrol officer. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Tuttle served as a Training and Research Section Supervisor for MHP from August 2001 through his suspension in January 2006. He supervised the training of highway patrol cadets at the Montana Law Enforcement Academy. Captain Butch Huseby (Captain Huseby) supervised Tuttle during the events at issue.
¶3 Tuttle traveled from Helena to Missoula in December of 2005 to conduct testing for MHP applicants. Trooper Tamara Winchell assisted Tuttle with the training in Missoula. She was stationed in Hamilton at the time. Tuttle submitted a request to Captain Huseby for reimbursement for his round trip from Helena to Missoula. The request indicated, to Captain Huseby’s surprise, that Tuttle had stayed overnight at a hotel in Hamilton. Captain Huseby approved the request, but asked Tuttle why he would travel 86 miles out of his way to stay in Hamilton instead of driving back to Helena or staying overnight in Missoula. Tuttle responded that he had decided not to return to Helena after the testing in light of the icy roads and his own fatigue. Tuttle claimed that he stayed in Hamilton rather than Missoula to save money on lodging. Tuttle also mentioned that he had dinner with Trooper Winchell while in Hamilton. Captain Huseby investigated Tuttle’s explanations and found that hotel rooms in Missoula cost roughly eight dollars per night more than rooms in Hamilton.
¶4 Captain Huseby believed that Tuttle’s explanation regarding his trip to Hamilton lacked credibility. He decided to conduct a further investigation of Tuttle. Captain Huseby inquired specifically into another hotel room that Tuttle had charged to MHP on behalf of Trooper Kristine Welker (Trooper Welker).
¶5 Captain Huseby discovered that MHP had ordered Trooper Welker to travel to Helena for training in February of 2005. MHP directed Trooper Welker to stay at the Law Enforcement Academy. Tuttle intervened, however, and reserved a hotel room for Trooper Welker at the Hampton Inn. Tuttle claimed, for various reasons, that he could not grant Trooper Welker access to a room at the Law Enforcement Academy. Tuttle later admitted that he had a master key that would have allowed him to assist Trooper Welker in gaining access to a room at the Law Enforcement Academy.
¶6 Captain Huseby’s investigation revealed that Tuttle had spent the evening with Trooper Welker after picking her up from the Hampton Inn. Tuttle learned over the course of the evening that Trooper Welker needed money for rent so she could move out of her husband’s house. Tuttle offered to loan her the money. Tuttle returned to Trooper Welker’s hotel room later that night with some of the promised money. Trooper Welker told Captain Huseby that Tuttle had tried to kiss her before he left her room.
¶7 Trooper Welker informed Captain Huseby that Tuttle later had threatened to end her career with MHP if she did not end her relationship with another trooper. Trooper Welker explained that Tuttle had warned her, when she was a cadet, that he had power over her initial placements and subsequent career.
¶8 Captain Huseby further learned that Tuttle had made similar representations to other cadets. Tuttle asked personal questions regarding the cadets’ families, finances, and marriages. He indicated that he would use their answers to make his determination on their placement. Tuttle had no power to make decisions or recommendations regarding any cadet’s placement. Tuttle also had represented falsely to female cadets that MHP had a policy of prohibiting placement of women in single station assignments or on Indian reservations.
¶9 Tuttle issued orders in July of2005 for Trooper Welker and Tuttle to attend a “women in law enforcement” conference in Colorado. He sought to extend their stay past the end of the conference for “sightseeing.” Tuttle represented to MHP, however, that he needed to extend the trip so that he could attend a banquet to be held on the evening of the last day of the conference. MHP discovered that the conference featured no such banquet after Trooper Welker showed her superiors a pamphlet explaining the conference dates. MHP denied Tuttle’s request for an extra day in Colorado. Tuttle canceled his trip with Trooper Welker. Tuttle had by this time begun referring to Trooper Welker as “fat ass” while the two were on duty.
¶10 MHP charged Tuttle with multiple instances of misconduct in the course of his employment. MHP held a hearing on April 11-12, 2006. MHP determined that Tuttle had violated several of MHP’s General Regulations on Obedience and Conduct. MHP found, specifically, that Tuttle had misappropriated state resources, committed sexual harassment, lied to investigators, and generally lacked the integrity and honesty necessary to serve in the MHP. MHP concluded that the “foregoing conduct constitutes cause for discharge of Sgt. Tuttle from the Highway Patrol under Montana Code Annotated § 44-1-612.” Section 44-1-612, MCA, lists various causes for suspension, demotion, or discharge of a highway patrol officer.
¶11 Tuttle appealed to the District Court. He argued that the record failed to support MHP’s order and that MHP had made errors of law. The District Court concluded that substantial evidence supported MHP’s findings of fact and that its decision to terminate Tuttle was correct. Tuttle appeals.
STANDARD OF REVIEW
¶12 We review MHP’s administrative decision to determine whether it correctly interpreted the law and whether its findings are clearly erroneous. City of Billings Police Dept. v. Owen, 2006 MT 16, ¶ 12, 331 Mont. 10, ¶ 12, 127 P.3d 1044, ¶ 12.
DISCUSSION
¶13 Tuttle challenges only MHP’s conclusions of law. Tuttle does not challenge the findings of MHP on appeal. He points out that the Montana Operations Manual on Progressive Discipline as found at Admin R. M. 2.21.65 (2005), governs MHP’s disciplinary decisions. He argues that, pursuant to these governing regulations, he should have been subjected to progressive discipline, instead of immediate termination.
¶14 Admin. R. M. 2.21.6509(2) (2005), provides that “[m]anagement shall, when appropriate, use progressive discipline.” The regulation continues to state that “the appropriateness of using progressive discipline in each case lies within the discretion of management.” The regulation states, however, that “[discharge should not be an initial disciplinary action except in severe cases or unsatisfactory performance or behavior that disrupts agency operations.”
¶15 Tuttle argues that Admin. R. M. 2.21.6509(2) (2005), requires a single incident of egregious behavior. He argues that MHP lumped together a number of minor incidents to support its conclusion to discharge him rather than subjecting him to some lesser form of discipline.
¶16 We disagree with Tuttle’s characterization of his transgressions as minor. MHP found that Tuttle had misappropriated state funds, lied to investigators and cadets, and sexually harassed at least one female trooper. Any one of these offenses could have constituted grounds for dismissal. We need not reach this question, however, as we fail to find any support for Tuttle’s proposition that Admin. R. M. 2.21.6509(2) (2005), requires a single incident of severe behavior before MHP may initiate discharge proceedings.
¶17 We interpret administrative regulations first according to their plain language. State v. Frickey, 2006 MT 122, ¶ 19, 332 Mont. 255, ¶ 19, 136 P.3d 558, ¶ 19. The plain language of the regulation-i.e., “severe cases or unsatisfactory performance or behavior”-could encompass a single incident or the pattern of misbehavior that MHP uncovered in this case. Tuttle cites no authority to the contrary.
¶18 We also find no support in this regulation’s language for Tuttle’s argument that he should receive some lesser discipline in light of the fact that MHP failed to document “Tuttle’s minor misbehaviors as they occurred.” We will not require MHP to turn a blind eye to the combined severity of Tuttle’s transgressions merely because MHP discovered Tuttle’s various misbehaviors through the course of a single investigation. We conclude that MHP correctly determined that Tuttle’s combined behavior provided sufficient grounds for his termination. City of Billings Police Dept., ¶ 12.
¶19 Tuttle next challenges the MHP’s legal conclusion that Tuttle sexually harassed Trooper Welker. MHP’s General Regulations forbid unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment. MHP found that Tuttle misrepresented to Trooper Welker that he had power over her career. He threatened to end her career if she did not end her relationship with another trooper. He referred to Trooper Welker as “fat ass” multiple times while on duty. He made sexual advances towards Trooper Welker while she was in Helena for official training. These findings sufficiently support MHP’s conclusion that Tuttle committed verbal conduct of a sexual nature for the purpose of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment. City of Billings Police Dept., ¶ 12.
¶20 Affirmed.
JUSTICES NELSON, WARNER, COTTER and LEAPHART concur.
|
[
54,
-17,
30,
23,
-29,
-23,
-20,
-43,
-7,
40,
-2,
20,
53,
-43,
-10,
-48,
13,
22,
51,
-10,
-64,
-7,
-9,
23,
-68,
0,
-30,
42,
-75,
-31,
10,
-41,
59,
-16,
8,
-10,
-12,
67,
-29,
31,
26,
34,
-34,
-37,
-35,
4,
29,
-16,
-12,
-11,
-13,
56,
-34,
18,
27,
19,
25,
-62,
8,
7,
-28,
37,
-50,
22,
0,
-18,
-28,
41,
24,
32,
-44,
36,
-32,
-42,
-5,
64,
-31,
-24,
-66,
30,
-29,
34,
-16,
-28,
18,
0,
-28,
-32,
13,
39,
-10,
-24,
37,
-67,
5,
20,
-1,
-50,
15,
-27,
-18,
0,
5,
26,
3,
-80,
-26,
-21,
27,
37,
-40,
35,
11,
-75,
-26,
30,
-32,
-9,
6,
36,
7,
5,
10,
28,
9,
-46,
5,
-4,
-24,
-24,
-34,
13,
31,
-4,
-17,
9,
-21,
-7,
19,
19,
10,
9,
44,
6,
45,
-10,
-36,
-42,
-1,
-22,
28,
-6,
5,
0,
20,
-15,
16,
-2,
-39,
31,
0,
-29,
15,
-8,
24,
54,
-42,
28,
-26,
24,
21,
41,
0,
9,
17,
9,
-71,
-12,
4,
-72,
-63,
-20,
5,
-47,
-24,
-21,
39,
29,
7,
23,
-82,
-23,
28,
-51,
10,
0,
4,
-2,
8,
-23,
22,
38,
6,
-6,
-39,
-15,
-26,
25,
6,
5,
32,
29,
20,
-14,
0,
34,
-33,
-20,
5,
-42,
21,
-10,
0,
-12,
16,
-21,
-64,
47,
-48,
-18,
28,
28,
-2,
25,
-9,
23,
-18,
7,
17,
-9,
-23,
-25,
23,
4,
27,
-6,
-94,
-34,
-23,
2,
20,
-7,
14,
15,
9,
-30,
46,
-2,
11,
-13,
26,
-12,
47,
22,
35,
25,
48,
41,
44,
3,
14,
21,
-6,
-29,
-52,
19,
11,
-56,
1,
-8,
-2,
25,
-30,
53,
21,
-33,
-12,
0,
22,
-42,
-31,
-76,
-18,
72,
-9,
-11,
34,
58,
-57,
-30,
36,
-18,
55,
40,
-2,
26,
-32,
14,
15,
69,
46,
31,
-28,
43,
28,
11,
-27,
-26,
-24,
-36,
-13,
-10,
-39,
-35,
-29,
4,
-29,
13,
18,
-40,
15,
-1,
-35,
56,
13,
-21,
44,
19,
28,
8,
-56,
-4,
13,
-36,
-54,
21,
4,
68,
-45,
-43,
-5,
63,
79,
24,
-3,
-12,
7,
0,
6,
-53,
-49,
11,
-69,
45,
-31,
17,
3,
12,
-71,
-108,
-10,
-78,
3,
0,
10,
3,
0,
-36,
-21,
43,
0,
-21,
14,
-13,
-27,
-14,
23,
-29,
11,
7,
23,
-14,
-59,
15,
-21,
7,
60,
-17,
36,
12,
-7,
-7,
71,
18,
3,
-5,
14,
18,
-55,
-6,
-64,
-5,
-14,
13,
38,
10,
-41,
43,
-48,
9,
20,
44,
-20,
26,
44,
16,
-19,
80,
25,
-10,
25,
-11,
47,
-73,
-47,
-42,
-12,
-55,
-34,
-20,
-4,
-7,
-31,
26,
3,
-46,
21,
-5,
-15,
-34,
26,
-7,
46,
-1,
-7,
0,
-11,
16,
-32,
-19,
-6,
4,
-22,
-48,
10,
10,
-7,
-27,
27,
16,
-47,
17,
-49,
-23,
2,
18,
0,
-12,
19,
-10,
3,
-60,
-6,
6,
-1,
-6,
6,
-7,
39,
18,
21,
23,
-41,
-38,
-19,
1,
39,
-34,
25,
-7,
28,
2,
16,
27,
-17,
-66,
41,
36,
15,
-25,
4,
47,
-7,
33,
-43,
42,
-35,
-28,
28,
-50,
32,
23,
20,
-25,
-3,
54,
-40,
-49,
40,
-70,
-44,
48,
35,
-28,
16,
43,
11,
-42,
60,
-34,
43,
-11,
-13,
-26,
32,
-29,
15,
-14,
24,
-9,
82,
65,
-19,
-39,
-37,
-59,
-1,
-6,
-9,
41,
21,
-4,
-1,
13,
11,
30,
-24,
65,
64,
-16,
-28,
-19,
-67,
-15,
27,
0,
24,
58,
-32,
36,
20,
-15,
-9,
2,
-21,
15,
50,
21,
-48,
15,
6,
-4,
-50,
42,
-10,
4,
-4,
15,
-105,
17,
19,
-8,
-53,
69,
28,
-13,
49,
43,
-13,
17,
-37,
-33,
37,
4,
-13,
12,
-56,
-22,
26,
-33,
-32,
-33,
-24,
31,
2,
30,
7,
-9,
16,
-47,
35,
-27,
0,
-32,
9,
-13,
-16,
-3,
-53,
-21,
60,
55,
10,
-60,
-34,
5,
-35,
16,
-40,
-49,
1,
20,
8,
-19,
24,
63,
23,
32,
41,
-20,
41,
47,
28,
25,
-63,
-29,
16,
4,
9,
34,
40,
-17,
3,
7,
52,
-2,
72,
-24,
4,
5,
21,
-40,
58,
36,
9,
-7,
6,
28,
35,
-28,
52,
54,
0,
-17,
6,
-55,
-31,
7,
14,
-20,
59,
-5,
-28,
1,
-54,
-4,
-49,
-21,
-5,
67,
-12,
10,
-4,
13,
-23,
-55,
-8,
53,
-7,
-16,
-6,
-28,
-21,
24,
62,
-42,
2,
-54,
-5,
2,
10,
27,
34,
-24,
13,
-30,
-18,
36,
31,
-19,
-45,
28,
17,
-4,
29,
11,
52,
10,
-17,
-13,
22,
20,
29,
-7,
-12,
-9,
69,
17,
-33,
-35,
53,
-10,
-14,
31,
32,
-45,
12,
24,
26,
31,
0,
-3,
-11,
12,
8,
-16,
-5,
57,
-8,
-26,
-6,
36,
-74,
-4,
11,
-4,
-27,
21,
-33,
20,
4,
9,
-1,
0,
-6,
-29,
-5,
16,
-18,
28,
15,
-52,
54,
25,
-18,
44,
17,
15,
33,
5,
-3,
-1,
2,
-24,
43,
-41,
-4,
14,
-31,
-33,
-5,
-37,
-20,
-5,
11,
-29,
-15,
27,
0,
0,
-6,
31,
-6,
-10,
-40,
-20,
-29,
0,
31,
50,
20,
49,
17,
-34,
14,
38,
41,
45,
-14,
50,
-29,
89,
-6,
24,
28,
16,
0,
-4,
-7,
26,
-32,
21,
-63,
-7,
26,
-18,
72,
-74,
2,
14,
29,
13,
59,
18,
-35,
-27,
65,
1,
9,
-10,
-16,
-35,
-10,
2,
49,
-5,
-29,
-30,
43,
0,
-32,
-37,
-23,
38,
-47,
15,
3,
12,
21,
-13,
-38,
-12,
-35,
-25,
5,
16,
16,
10,
-43,
45,
-6,
13,
-32,
-48,
-6,
-14,
-104,
15,
44,
-29,
-41,
57,
9,
56,
-7,
29,
-47,
-95,
39,
48,
-29,
-26,
-34,
-18,
-16,
10,
38,
70,
-30,
-23,
-1,
-5,
-5,
48,
18,
50,
-9,
-62,
-1,
22,
36,
-21,
-28,
44,
-9,
4,
4,
26,
2,
-67,
-40,
-60,
12,
-2,
-79,
22,
30,
-41,
10,
41,
86,
50,
-14,
-5,
29,
35,
-25,
19,
-25,
8,
19,
59,
-17,
43,
-40,
-13,
-14,
0,
-44,
13,
-5,
17,
-53,
-31,
41,
13,
-42,
-22,
39,
4,
-13,
12,
-86,
10,
-3,
19,
-3,
-28,
33,
10,
65,
-22,
-35,
-54,
-27,
0,
11,
24,
-48,
-17,
-33,
-18,
8,
-21
] |
OPINION AND ORDER
¶1 Revett Silver Company (Revett) has filed a motion to dismiss the appeal herein. Appellants Clark Fork Coalition, et al. (Coalition), oppose the motion. Respondent Montana Department of Environmental Quality (DEQ) has not filed a response to the motion to dismiss.
¶2 This matter arises out of a challenge to a pollution discharge elimination system permit granted by DEQ to Revett for use at its proposed Rock Creek Mine in Sanders County. The Coalition filed an action challenging DEQ’s issuance of the permit on January 28,2002, and Revett was not named in the action. The Coalition and DEQ ultimately agreed to present the matter for resolution on summary judgment, and the Coalition moved for summary judgment in December 2004. On January 31, 2005, three years after the suit was filed and while the Coalition’s summary judgment motion was pending, Revett sought to intervene as a defendant in the matter. On July 12, 2005, the First Judicial District Court, Lewis and Clark County, Honorable Jeffrey Sherlock presiding, denied Revett’s motion to intervene as untimely, noting that Revett had “actual notice of the action shortly after the complaint was filed, more than three years ago” and had “ample notice and opportunity to file its motion to intervene at an earlier stage in the proceedings.” After being denied intervention, Revett did not further participate in the litigation, nor seek supervisory control of the proceeding by this Court.
¶3 After briefing and argument, the District Court granted summary judgment to DEQ on Count I of the Coalition’s amended complaint, to the Coalition on Count II, and ordered that Count III be set for trial. The parties thereafter agreed that all of the facts regarding Count III had been fully established and that a trial would not further develop the claim. Further, the Coalition took the position that the District Court’s decision on Count I would direct a favorable outcome to DEQ on Count III. Therefore, on September 12,2006, the parties stipulated to the entry of final judgment in favor of DEQ on Counts I and III and in favor of the Coalition on Count II. The District Court accepted the stipulation and entered final judgment accordingly.
¶4 The Coalition served notice of entry of judgment on DEQ pursuant to M. R. Civ. P. 77(d) on October 13, 2006. DEQ failed to serve its notice of entry of judgment despite also being a prevailing party. On November 20, 2006, the Coalition filed a notice of appeal, challenging the granting of summary judgment to DEQ on Count I. The Clerk of District Court served the notice of appeal on DEQ and also sent a copy to the Clerk of this Court pursuant to M. R. App. P. 4(d). The Coalition filed its opening brief with this Court on March 5, 2007, followed by the filing of DEQ’s answer brief on April 3, 2007, and the Coalition’s reply brief on April 23, 2007, and on that day the briefed case was forwarded to this Court.
¶5 However, no entity served a notice of entry of judgment upon Revett. On May 30, 2007, some thirty-seven days after the final brief was filed herein and the matter forwarded to this Court by the Clerk, and after learning about the judgment from “casual conversation,” Revett filed this motion to dismiss the appeal on the ground it had not been served with a notice of entry of judgment under M. R. Civ. P. 77(d).
¶6 Citing Sportsmen for I-143 v. Fifteenth Jud. Court, 2002 MT 18, 308 Mont. 189, 40 P.3d 400, Revett notes that an order denying a motion to intervene is not separately appealable under M. R. App. P. 1 and, therefore, an appeal could not be taken from the order denying its motion for intervention until after entry of final judgment. As such, Revett contends that both the Coalition and DEQ violated Rule 77(d) by failing to serve Revett with notice of final judgment. It notes that Rule 77(d) directs “[w]ithin 10 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry ... shall be served by the prevailing party upon all parties who have made an appearance ...” and argues that it made an appearance by virtue of its motion to intervene, was therefore a “party,” and was entitled to notice. Revett further argues that the failure to comply with Rule 77(d) bars the contemplated transfer of jurisdiction from the District Court to this Court, and, therefore, this Court must dismiss the appeal and remand to the District Court for service of notice of judgment upon it, and for the appeal process to start anew.
¶7 The Coalition responds that Revett’s motion provides no grounds to dismiss this appeal, because the Coalition fully complied with Rule 77(d) by serving notice of entry of judgment on DEQ, the only other “party” in the litigation. The Coalition argues that, while Revett may have made an appearance in the District Court, it never became a “party,” and therefore was not entitled to service of the notice of judgment under Rule 77(d). Although the Coalition acknowledges that Revett had the right to appeal the District Court’s denial of its application to intervene, it urges this Court to nonetheless deny Revett’s request as untimely or lached because, as a non-party, Revett bore the burden of keeping itself apprised of the progress of the litigation and filing a timely notice of appeal, without further notice. Alternatively, the Coalition contends that if we determine that Revett’s failure to be served with formal notice of the judgment was a legal harm that entitles Revett to relief, this Court should set a separate briefing schedule on Revett’s intervention issue and decide that question first, as the outcome would determine whether this Court could take up the remaining appeal or if the matter would need to be remanded for re-initiation of the proceeding in the District Court, with Revett participating.
¶8 Both sides correctly recognize that “[w]e have noted that while an order denying a motion to intervene is not separately appealable under Rule 1, M.R.App.P., the proper appeal from such an interlocutory order lies after entry of final judgment.” Sportsmen, ¶ 5. This Court has not, however, previously addressed the procedure to be followed when appealing a denial of an application for intervention, specifically, whether an unsuccessful intervenor is entitled to be served with notice of entry of judgment pursuant to Rule 77(d).
¶9 A civil appeal from the district court must be filed “within 30 days from the date of the entry of the judgment or order appealed from.” M. R. App. P. 5(a)(1). Further, “[i]t is the filing of the notice of entry of judgment that begins the running of the time limits for filing a notice of appeal.” In re Marriage of Robertson, 237 Mont. 406, 411, 773 P.2d 1213, 1216 (1989) (citations omitted). M. R. Civ. P. 77(d) requires notice of entry of judgment to be served by the prevailing party upon all parties who have made an appearance in the cause. Robertson, 237 Mont. at 411, 773 P.2d at 1216 (citing Hankinson v. Picotte, 235 Mont. 143, 766 P.2d 242 (1988)). Specifically, M. R. Civ. P. 77(d) states:
Within 10 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry, together with a copy of such judgment or order or general description of the nature and amount of relief and damages thereby granted, shall be served by the prevailing party upon all parties who have made an appearance, but any other party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. [Emphasis added.]
If no notice of entry of judgment has been served on the losing party, the right to appeal has not expired. Robertson, 237 Mont. at 411, 773 P.2d at 1216 (citation omitted).
¶10 M. R. Civ. P. 24 governs intervention. As the Minnesota Court of Appeals has stated with regard to that state’s similar intervention rule, “Rule 24 is designed to protect nonparties from having their interests adversely affected by litigation conducted without their participation.” Gruman v. Hendrickson, 416 N.W.2d 497, 500 (Minn. App. 1987). However, the language of the rule carefully distinguishes between an “applicant” or “person desiring to intervene” and the “parties” to the action:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene. [Emphasis added.]
A plain reading of this Rule does not support Revett’s argument that it became a “party” by appearing in the action to seek intervention. ¶11 Further, authority we find persuasive likewise illustrates that a failed intervenor does not become a party to the action. In Manufacturers Consol. Service v. Rodell, 42 S.W.3d 846, 867 (Tenn. Ct. App. 2000), the Tennessee Court of Appeals stated that when a court denies a motion to intervene “the movant’s request to participate in the litigation is denied, and the movant never becomes a party to the original action.” Rodell, 42 S.W.3d at 867. In Graham v. City of Anchorage, 364 P.2d 57 (Alaska 1961), the city commenced an action against its clerk seeking a declaratory judgment that there was no obstacle to proceeding with the annexation election. The appellants, who opposed the annexation, filed a motion to intervene, which was denied by the lower court. The appellants then attempted to appeal following the entry of the lower court’s judgment allowing the election to proceed. The Alaska Supreme Court held they had no right to appeal from the judgment on the merits:
[A]ppellants have never been parties to this action, since the court had denied their motion to intervene. Hence, they had no right to appeal from the judgment in order to obtain review of the merits of the controversy between those who were parties. The only relief that appellants could seek from this court was a review of the trial court’s ruling which prevented them from becoming parties to the action. [Emphasis added.]
Graham, 364 P.2d at 59. These cases clearly demonstrate that successful intervenors become parties to the litigation, and unsuccessful intervenors do not.
¶12 While we recognize that these cases do not specifically address whether an unsuccessful intervenor is entitled to notice of entry of judgment, they are nonetheless illustrative regarding the status held by an unsuccessfiil intervenor. An unsuccessful intervenor is not a “party” and thus, under the clear distinctions made in Rule 24 and the clear language of Rule 77(d), is not entitled to service of notice of entry of judgment. See M. R. Civ. P. 77(d) (notice must be served “upon all parties who have made an appearance” (emphasis added)). Although Revett emphasizes the Rule’s application to those who have “made an appearance,” this argument is unavailing. That phrase, as the Advisory Committee’s Note to the October 9,1984, amendment for M. R. Civ. P. 77(d) explains, was adopted simply to eliminate confusion arising under the former text, which required service upon all “adverse parties” in the action. Thus, it is clear that, in order to conclude that an unsuccessful intervenor is a party entitled to service of notice of judgment under Rule 77(d), this Court would be required to ignore the distinctions made by the rules and to override the plain language used therein.
¶13 Citing Article II, Sections 16 and 17, of the Montana Constitution, Revett next argues that it is entitled to service of notice of judgment as a matter of “settled procedural due process.” We conclude, however, that Revett’s due process rights were not violated by the failure to receive service of notice of judgment, nor did that failure prevent the transfer of jurisdiction from the District Court to this Court.
¶14 First, Revett did not avail itself of the option of seeking supervisory control with this Court when its motion to intervene was denied. Indeed, it was upon this very issue-the district court’s denial of a motion to intervene-that this Court granted supervisory control and reversed the district court in Sportsmen. See ¶¶ 5-6, 20. While Revett argues strenuously that Sportsmen is distinguishable and that the denial of its motion to intervene was not eligible for review under supervisory control standards, Revett could have just as easily argued the other way under those standards and sought this Court’s review. However, it did not. “[Supervisory control may be used to prevent extended and needless litigation.” Sportsmen, ¶ 5 (citing First Bank System v. District Court, 240 Mont. 77, 84-85, 782 P.2d 1260, 1264 (1989). While we recognize that Revett was not legally required to challenge the ruling in this manner, nor was Revett entitled, as a matter of right, to this Court’s exercise of supervisory control, it was nonetheless an option available to Revett, which it had a right to pursue.
¶15 In the absence of supervisory control, Revett could have monitored the litigation and kept itself apprised of the case’s progress, as an unsuccessful intervenor must do in order to take a timely appeal following final judgment. This proceeding was conducted in public and the record thereof was continually available. Even a modicum of diligence would have advised Revett of the case status. Yet, the record before us reflects no effort by Revett to check the filing of documents in the court file or to make inquiry of the clerk’s office; to request that the parties provide notice of a final judgment, particularly the DEQ, whose interest in the litigation was parallel to that of Revett; or to request the clerk to provide notice or copies of the court’s orders and judgments. Ultimately, the responsibility for monitoring the matter rested with Revett, but it made no effort whatsoever to further this duty.
¶16 Revett’s actions with regard to the appeal are consistent with its actions in the District Court. The filing of this action by the Coalition on January 28,2002, generated substantial publicity. Revett was well aware of the suit and, according to its District Court filings, conducted discussions about the case, concluded that its interests were adequately protected by the DEQ, and decided not to seek entry into the litigation. Then, three years after the litigation was commenced, after discovery had been closed for five months and oral argument scheduled, Revett moved to intervene on January 31, 2005. After the District Court denied its motion as untimely on July 12,2005, Revett failed to keep itself informed and overlooked the filing of the judgment, the filing of the appeal, and the completion of appellate briefing in this Court, before resurfacing to file a motion to dismiss herein on May 30, 2007.
¶17 “There is no absolute standard for what constitutes due process. ... [T]he process due in any given case varies” with the circumstances. McDermott v. McDonald, 2001 MT 89, ¶ 10, 305 Mont. 166, ¶ 10, 24 P.3d 200, ¶ 10. Here, due process cannot afford a remedy for irresponsibility. We cannot by rule relieve the citizen’s duty to superintend his own affairs. As a nonparty to the litigation, Revett was not entitled to service of notice of entry of judgment, yet was already on notice about the entire proceeding. Revett’s obligation, in order to protect its claimed interests, was to monitor the litigation and file a timely appeal following entry of the judgment. Its failure to do so does not divest this Court of jurisdiction to resolve the issues raised by the parties properly before it. Therefore,
¶18 IT IS HEREBY ORDERED that Revett’s motion to dismiss the appeal is DENIED.
¶19 The Clerk is directed to mail a true copy hereof to counsel of record herein, as well as counsel for Revett.
DATED this 24th day of July, 2007.
/S/JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/JOHN WARNER
/S/ BRIAN MORRIS
Instead of the term “Count,” the District Court’s order referred to “Outfall” Nos. 1, 2 and 4, in disposing of the issues before it. The distinction between these terms is not relevant to the disposition of this motion, and neither side disputes the use of the above terms.
The District Court cited the four-part test this Court has developed for reviewing intervention issues, Sportsmen ¶ 7, and denied the motion based upon the first factor, timeliness, concluding that “[Revett’s] change of mind on the DEQ’s ability to protect its interest does not make its motion a timely one.”
|
[
13,
-6,
-34,
4,
41,
27,
21,
-28,
3,
89,
4,
-3,
52,
15,
3,
20,
-14,
-54,
0,
-11,
-53,
9,
9,
-31,
13,
-22,
-96,
4,
14,
11,
-28,
-71,
-41,
8,
8,
-9,
-7,
82,
-33,
4,
8,
10,
61,
-11,
-30,
21,
-41,
-21,
14,
0,
48,
13,
-40,
0,
-36,
-11,
-21,
-23,
-9,
14,
-43,
10,
73,
14,
40,
38,
19,
-47,
-31,
-8,
-6,
0,
27,
-27,
23,
-74,
-8,
-47,
-54,
4,
-15,
27,
10,
-5,
24,
8,
-54,
24,
0,
54,
-10,
-2,
-11,
-26,
15,
20,
9,
-6,
35,
21,
-17,
11,
10,
-27,
-17,
-11,
10,
-23,
50,
15,
16,
-22,
-59,
-58,
9,
51,
11,
-12,
10,
-8,
15,
-11,
17,
57,
-36,
0,
5,
0,
11,
34,
-23,
-56,
-8,
0,
18,
8,
26,
-32,
-58,
62,
13,
-16,
9,
-37,
-24,
81,
-53,
34,
24,
18,
-8,
-15,
-33,
36,
19,
-36,
35,
-16,
30,
-6,
47,
59,
-5,
-39,
-37,
-2,
-1,
-37,
-43,
-11,
26,
-15,
-29,
8,
30,
37,
32,
-10,
26,
29,
-3,
2,
12,
-17,
-14,
49,
46,
-4,
-45,
36,
-11,
-35,
57,
31,
9,
-45,
23,
22,
18,
43,
-7,
-37,
-27,
-2,
-48,
27,
53,
-17,
30,
29,
-33,
14,
-10,
-4,
-19,
-51,
42,
8,
26,
-39,
20,
8,
34,
41,
-38,
16,
1,
14,
16,
-39,
5,
-5,
25,
-27,
-4,
-9,
16,
-10,
25,
-6,
-14,
-40,
-17,
-48,
-15,
-12,
-60,
-31,
1,
37,
-8,
-16,
-18,
5,
-3,
-43,
-48,
37,
-39,
-11,
14,
-7,
29,
-76,
-9,
28,
-46,
8,
39,
13,
35,
12,
30,
20,
-17,
-21,
45,
4,
-10,
-13,
28,
17,
-6,
15,
18,
20,
-16,
2,
-8,
-58,
-8,
8,
11,
-20,
5,
6,
0,
-33,
16,
17,
-72,
-4,
-5,
-6,
5,
28,
-51,
68,
15,
-33,
-9,
26,
-14,
20,
-11,
-26,
6,
-38,
12,
-1,
29,
14,
1,
-76,
-30,
42,
-1,
-14,
-24,
-9,
-24,
-9,
34,
-11,
-9,
-17,
19,
-22,
-18,
-1,
36,
-9,
44,
0,
0,
20,
14,
-22,
-9,
-6,
-33,
-26,
14,
16,
48,
-29,
-35,
-49,
-28,
17,
7,
-19,
-48,
-11,
1,
-40,
25,
18,
-6,
64,
-83,
-17,
58,
-37,
25,
-17,
-22,
-3,
-18,
-40,
-39,
-19,
37,
-12,
13,
40,
38,
48,
-31,
-10,
58,
-69,
-44,
2,
-31,
19,
-10,
-46,
0,
25,
55,
13,
44,
-20,
5,
-19,
-14,
-22,
54,
30,
5,
2,
-52,
-44,
-13,
-66,
12,
39,
11,
78,
12,
18,
-11,
-70,
-8,
-33,
3,
-29,
-17,
37,
-62,
76,
-57,
19,
-22,
52,
44,
-9,
-23,
-3,
-62,
-31,
-7,
-50,
3,
-32,
-12,
20,
50,
46,
-28,
46,
-67,
-11,
-26,
72,
-10,
-24,
36,
-5,
-4,
36,
24,
-23,
6,
47,
6,
-15,
29,
58,
75,
67,
6,
10,
-20,
45,
-20,
24,
-25,
-10,
-3,
65,
-19,
0,
-1,
3,
33,
33,
0,
49,
7,
12,
0,
-24,
-25,
13,
-19,
-9,
43,
8,
-19,
-19,
-31,
-36,
7,
52,
-10,
20,
-52,
31,
23,
-23,
45,
-51,
-38,
28,
68,
-27,
-32,
70,
12,
-17,
-5,
19,
-52,
-30,
0,
-36,
60,
18,
-15,
-5,
-39,
-38,
-19,
39,
-14,
22,
-26,
-10,
31,
6,
24,
10,
-58,
17,
-40,
-56,
35,
-14,
23,
29,
25,
54,
-10,
25,
17,
-23,
3,
-47,
8,
51,
-62,
9,
-3,
38,
-24,
-39,
-12,
-1,
-13,
46,
30,
-44,
-10,
23,
-13,
54,
-6,
34,
-70,
-22,
-39,
-46,
-7,
-28,
40,
2,
19,
-40,
-57,
-20,
-42,
18,
-56,
32,
28,
0,
7,
-12,
35,
19,
-9,
-19,
-32,
-2,
-42,
-1,
-21,
-15,
21,
9,
-28,
56,
17,
34,
52,
-13,
86,
-1,
-10,
-27,
-16,
55,
-20,
5,
-32,
11,
-61,
9,
-18,
-14,
21,
-1,
-16,
-11,
-60,
61,
1,
-21,
-4,
21,
2,
-31,
-23,
-58,
43,
13,
25,
32,
-9,
48,
44,
-28,
-2,
12,
-1,
-17,
25,
-2,
28,
28,
28,
-30,
-24,
-18,
-9,
14,
44,
27,
20,
55,
9,
3,
-21,
-9,
-4,
-27,
-52,
59,
-13,
9,
0,
-60,
-51,
10,
77,
35,
-12,
-19,
-23,
79,
-21,
-5,
-39,
-23,
-3,
16,
-28,
9,
-29,
-1,
-13,
12,
4,
-6,
-22,
-24,
-19,
-3,
-17,
-7,
42,
-98,
-24,
-41,
-41,
36,
-9,
-72,
12,
-17,
18,
10,
4,
-27,
-43,
0,
0,
-12,
13,
50,
17,
12,
-31,
-10,
3,
-3,
-47,
-41,
23,
-41,
44,
10,
7,
77,
19,
12,
-33,
-1,
-11,
2,
-29,
28,
-12,
9,
5,
-35,
29,
45,
69,
-75,
-37,
-23,
-30,
-58,
-25,
-32,
63,
12,
-1,
24,
-15,
-9,
36,
-12,
19,
21,
45,
45,
10,
-22,
41,
37,
-22,
-16,
-35,
-13,
-32,
41,
18,
2,
56,
5,
19,
6,
-41,
0,
-46,
-3,
-24,
19,
6,
32,
-2,
21,
28,
12,
-9,
-15,
-26,
-30,
24,
22,
59,
12,
-36,
49,
-22,
-33,
-35,
-4,
-8,
7,
15,
4,
10,
-17,
16,
0,
53,
6,
49,
21,
-5,
-1,
24,
6,
14,
-23,
-40,
-7,
-26,
-32,
62,
18,
-12,
12,
21,
42,
-5,
41,
-22,
25,
18,
24,
-62,
-46,
-21,
49,
33,
12,
-47,
58,
-23,
-12,
-13,
-14,
-28,
-1,
4,
-23,
-22,
89,
6,
19,
-19,
32,
18,
-29,
5,
-5,
0,
36,
-27,
-41,
14,
0,
26,
8,
5,
-24,
-3,
-8,
-11,
15,
38,
-108,
1,
15,
-48,
52,
15,
5,
31,
-26,
1,
44,
24,
35,
7,
4,
30,
22,
-5,
-38,
-10,
-26,
-35,
50,
27,
17,
9,
-24,
-44,
-50,
-16,
55,
15,
38,
-18,
27,
9,
-51,
-77,
21,
-40,
-9,
-39,
23,
5,
-35,
-41,
-47,
34,
-33,
-33,
-24,
-2,
44,
4,
1,
10,
-13,
28,
31,
-4,
51,
30,
-87,
-27,
49,
-36,
-10,
-71,
-16,
-82,
15,
25,
37,
10,
-21,
-27,
-35,
0,
-15,
-29,
-20,
-38,
81,
40,
31,
7,
-49,
-5,
16,
-57,
29,
46,
3,
50,
23,
-18,
-8,
24,
34,
-44,
-30,
-45,
0,
15,
-38,
29,
-22,
41,
10,
58,
-17,
16,
81,
-32,
-18,
-20,
39,
21,
-35,
-11,
-25,
35,
1,
4,
-10,
24,
-35
] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Vince and Debbie Arkell purchased a lot and house in the Middle Cottonwood Zoning District in Gallatin County. A couple of years later, upon learning that an after-the-fact variance was needed for an addition they had constructed, the Arkells applied for a variance. Their application was denied by the County Planning Director. The Arkells then appealed to the Middle Cottonwood Board of Adjustment. After a hearing, the Board denied the motion for lack of a majority. The Arkells then appealed the Board’s denial to the District Court. The court ordered a referee to conduct a hearing and take additional evidence. The referee concluded that the variance should be granted. The District Court adopted the referee’s findings of fact and conclusions of law and granted the Arkells’ requested variance. The Board appeals the decision, and we affirm.
¶2 We restate the issue on appeal as:
¶3 Did the District Court abuse its discretion by overturning the Board and granting the Arkells’ application for a zoning variance?
BACKGROUND
¶4 The property at issue is located at 7500 Saddle Mountain Road within the Middle Cottonwood Zoning District. The zoning regulations for the District include a 125-foot setback requirement from the centerline of Saddle Mountain Road. The house in question was originally constructed by Michael Thacker prior to adoption of the zoning regulations. The house, as originally constructed, was non-conforming to the later adopted zoning regulations as it was built 113 feet 9 inches from the centerline of Saddle Mountain Road.
¶5 The house, as originally constructed, was a box-like building providing storage for recreational vehicles on the main floor, including large roll up garage doors, and living quarters on the second floor. On the east side of the main floor was a mudroom and an attached storage area with a dirt floor about half the size of the main house. On the west side of the house was a septic tank and drain field. On the south side of the house was, according to the Arkells’ testimony, a sanitary sewer cleanout stud and corresponding sewer line.
¶6 In the spring of 2001, Bill Slingsby purchased the property after an arson fire gutted a portion of the main floor. Prior to remodeling, Slingsby contacted the Gallatin County Planning Department to ask if any permits were necessary. The Department informed him that no permit was necessaiy. The Department did not inform Slingsby that he was in a zoning district. However, Slingsby did not specifically ask if he was in a zoning district. Slingsby substantially completed remodeling the house and then sold it to the Arkells in September of2001. When purchased, the second story of the house was accessed by a narrow (three feet wide) indoor stairwell and a stairwell attached to the outside westerly wall.
¶7 In October of2001, Vince Arkell constructed an arched area addition onto the north, street-facing side of the house extending the main and upper floors. The maximum depth of the arched area is 14 feet. Consequently, the house is now 99 feet and 9 inches from the centerline of Saddle Mountain Road. Slingsby testified that he did not know the property was in a zoning district when he sold it to the Arkells. The Arkells testified that when they purchased the property and added the arched area to the north side they did not know the property was in a zoning district.
¶8 Because the addition increased the extent of the setback non-conformance by 14 feet, a zoning variance was needed. On January 30, 2004, after the Arkells became aware of the zoning district and corresponding setback requirements, they applied for a variance to approve the non-conforming addition. On May 25, 2004, the Gallatin County Planning Director denied the variance application.
¶9 The Arkells then appealed to the Middle Cottonwood Board of Adjustment. A hearing was held July 21, 2004, with four out of the five Board members present. Debbie Arkell testified as to her ignorance of the zoning regulations when the addition was constructed and to the hardship involved with building in any direction but toward the road. The Arkells’ neighbor, Anson Crutcher, then testified against granting the variance. Crutcher, while admitting that the addition “looks better,” asserted that Debbie had admitted to him that she knew of the zoning regulations before they constructed the addition. Another neighbor, Robert Swanekamp testified, briefly, that the unnecessary hardship requirement was not met because the Arkells could have added on to the east side of the house over the storage room with a dirt floor.
¶10 The Board then debated the matter, with three of the four members admitting that the house ‘looks so much better” with the addition. Two of the members, however, were concerned that the claimed hardship was induced by the action of the Arkells when they constructed the addition without seeking a permit or variance, and therefore the unnecessary hardship requirement had not been met. The four members eventually voted on a motion to reverse the Planning Director’s variance denial. The result was a tie: two for and two against. However, the concurring vote of three Board members was necessary to reverse the Planning Director’s denial. See § 76-2-224, MCA, and Section 11.3(g) of the Zoning Regulation. Consequently, the motion failed for lack of majority. Because of the tie vote, the Board did not issue findings of fact. The Board then issued a letter of decision officially denying the Arkells’ appeal.
¶11 On August 25,2004, the Arkells appealed the Board’s decision to the District Court and requested a writ of certiorari, as specified in § 76-2-227, MCA. The court, pursuant to § 76-2-227(3), MCA, appointed a referee to take additional evidence. On January 20,2006, a hearing was held before the referee. The referee heard testimony from Bill Slingsby, the contractor who sold the properly to the Arkells. Both Debbie and Vince testified. Subsequently, Anson Crutcher testified for the Board, and the Arkells called Tim Roark, the Gallatin County Environmental Health Director, in rebuttal. Additionally, the flail record from the Board proceeding, including a transcript of the hearing, was included in the record and the referee personally viewed the property.
¶12 On March 27, 2006, the referee submitted his proposed findings of fact and conclusions of law. The referee determined that the variance is not injurious to public health because the 14-foot addition does not pose any danger to the traveling public. Additionally, he determined that the variance does not impair the intent of the Zoning Regulation because it does not significantly alter the density of the property and improved the look of the property. Finally, the referee determined that the house had suffered extensive fire damage; that the configuration of the house was unusual when purchased by the Arkells, in that the main living area was on the second story; that the only direction to expand was north because the storage area was to the east, with the sewer line and septic tank and fields to the south and west; and, further, that the need to accommodate Debbie Arkell’s sister, who at the time the addition was built lived with the Arkells and suffered from post-polio syndrome, was legitimate. The referee therefore concluded that the requirements of Section 11.3 were met and recommended that the requested variance be granted. The District Court subsequently adopted the referee’s findings and conclusions and granted the variance request.
¶13 The Board now appeals the District Court’s order reversing the Board’s denial and granting the variance.
STANDARD OF REVIEW
¶14 We review a district court’s decision to grant a variance, where the court exercises its statutory option to take additional evidence, for an abuse of discretion and to determine whether that decision is supported by substantial evidence. Petition of Sutey Oil Co. v. County Planning Bd., 1998 MT 127, ¶ 13, 289 Mont. 99, ¶ 13, 959 P.2d 496, ¶ 13 (citations omitted).
DISCUSSION
¶15 Did the District Court abuse its discretion by overturning the Board and granting the Arkells’ application for a zoning variance?
¶16 The Board argues that the District Court abused its discretion and that the criteria for the grant of a variance have not been met. Section 11.3 of the Zoning Regulation prescribes the necessary criteria for the grant of a variance, “each and every one” of which must be met. Specifically, the Board contends that Sections 11.3(a), (c) and (e) have not been met.
¶17 Section 11.3(a) requires that the variance not be injurious to the public health, safety and general welfare of the commxmiiy. Section 11.3(c) requires that the variance not impair the intent or purpose of the Zoning Regulation. Finally, no variance may be granted unless the applicant would suffer “unnecessary hardship” if the variance were not granted, as defined at Section 11.3(e).
¶18 Before we consider whether the District Court abused it discretion by concluding that these requirements were met, we must decide two preliminary issues. First, the Arkells argue that the Board does not have standing to contest the decision of the District Court. Second, the Board argues that the District Court applied the wrong standard when it reviewed the Board’s denial of the variance.
¶19 A. Does the Board have standing to anneal?
¶20 The Arkells again argue, as they did in their motion to dismiss the appeal, that the Board lacks standing because the Board, as a quasi-judicial body, is not an aggrieved party. Additionally, the Arkells contend that this action is precluded by § 7-1-201(4), MCA, which states: “[a]dministrative boards ... may not sue or be sued independently of the local government, unless authorized by state law.”
¶21 As we discussed in our order denying the motion to dismiss, § 76-2-227, MCA, specifically provides for district court review of a decision of a board of adjustment not by direct appeal, but by writ of certiorari. The writ is directed to the board of adjustment, thus making it a party to the litigation. Section 27-25-205, MCA. Finally, we note that the Arkells’ petition named the Board as the opposing party. Therefore, the Board has standing to appeal the District Court’s order reversing its decision.
¶22 B. Did the District Court apply the wrong standard of review?
¶23 The Board argues that the District Court undertook a de novo review of the Board’s decision, as opposed to reviewing the decision to determine whether the Board abused its discretion, and that this improper review constitutes reversible error.
¶24 Section 76-2-227, MCA, authorizes the reviewing court to hold a hearing and reverse, affirm, or modify a decision made by a board of adjustment. A district court is thus bound to review a board of adjustment’s decision for an abuse of discretion. Sutey Oil, ¶ 12. In Sutey Oil, the appellant landowner argued that the District Court had utilized the wrong standard of review. Although the court in that case identified its scope of review as that traditionally available upon writ of certiorari, i.e., whether the Board acted legally and within its jurisdiction, the court actually used an abuse of discretion standard as it concluded that the Board “had sufficient information upon which to base its denial....” Sutey Oil, ¶ 27. Therefore, we concluded that the court, while indicating an incorrect standard, actually reviewed the Board for an abuse of discretion.
¶25 Here, neither the District Court nor the referee identified the scope of its review. Nevertheless, the Board contends that the District Court actually conducted a de novo review by relying solely on the referee’s findings and conclusions and not sufficiently deferring to the Board. What the Board is asking us to do, in effect, is limit the District Court to a court of review. Such a holding, however, would be contrary to the District Court’s statutory authority to take additional evidence and issue findings and conclusions under § 76-2-227(3), MCA. Further, in this case in particular, it would have been difficult for the court to have relied only upon the Board’s findings, as it did not issue any. Instead, there was a tie vote on the motion to reverse the Planning Director’s denial. The Arkells’ appeal was therefore procedurally denied, not denied on the merits. Accordingly, the court properly sought additional evidence to help it determine whether there was sufficient evidence to grant the variance.
¶26 C. Did the District Court have sufficient evidence to support its determination that the variance would not be injurious to the public health, safety and general welfare and would not impair the intent or purpose of the Zoning Regulation?
¶27 The Board argues that the variance clearly would be injurious to public safety and would impair the purpose of the Regulation. The Board, on appeal, combines these two questions (whether the requirements of Sections 11.3(a) and (c) have been met) into one issue, because the Board contends that the setback requirement was intended to provide a “clear line of sight” in order to prevent traffic accidents. The Board does not contest the court’s conclusion that the variance does not impair the other intents and purposes of the Zoning Regulation, such as the total size of the house and the distance from adjacent property lines.
¶28 According to the Board, the court’s findings cited “[n]o evidence whatsoever” for its conclusion that the variance does not “pose any danger to the traveling public.” Interestingly, the Board also fails to cite to specific evidence for its contention that the variance does in fact endanger the traveling public other than a Board member’s comment that people often drive down the road at a high rate of speed. Neither party introduced expert testimony concerning the requested variance and public safety at the referee hearing. Instead, the referee relied upon the pictures and diagrams of the property, his own visit to the property, and upon the numbers-the house, with the addition, was still 100 feet from the road. Additionally, the referee may have considered the fact that during the adjustment hearing a Board member admitted that the real safety concern for driver visibility is roadside landscaping, not the houses themselves.
¶29 Therefore, we conclude that, while the court may not have been presented with technical evidence, there was sufficient empirical evidence to determine that the variance is not injurious to public safety and does not impair the purpose of the Zoning Regulation.
¶30 D. Did the District Court have sufficient evidence to support its determination that the Arkells would suffer unnecessary hardship if the variance were denied?
¶31 Section 11.3(e) of the Zoning Regulation specifies that no variance “shall be granted unless the owner seeking the variance would suffer unnecessary hardship if the variance or special exception were not granted.” The section defines “unnecessary hardship” as “an extraordinary and exceptional situation uniquely affecting the specific property” for which the variance is sought. Further, the hardship may not be “induced by action of the applicant for the variance.”
¶32 The court concluded that the Arkells would suffer unnecessary hardship because the structure had burned; the original structure used the first floor for recreational storage; the only direction the Arkells could expand was north; and the Arkells’ reason for expanding, to create additional living space for Debbie’s sister, was legitimate. The Board counters that the fire has no relevance because the house was substantially rebuilt within the same footprint, and that the configuration of the house, while odd, did not necessitate an addition. Further, the Board points out that the Arkells could have built to the east, over the storage structure, and could have relocated the septic tank and sewer cleanout line located to the west and south. Finally, the Board contends that any hardship has been induced by the Arkells’ own action.
¶33 The unnecessary hardship at issue in this case is not the potential cost, in time and money, to the Arkells should they have to remove the addition and build on another side of the house. This would clearly be “induced” by the Arkells’ act of building into the setback and therefore would not meet the hardship criteria. Instead, the hardship at issue is the need for a full living area on the ground floor to accommodate Debbie’s sister. There was substantial evidence, primarily the Arkefls’ testimony, from which the court could conclude that the need to accommodate Debbie’s sister, who suffers from post-polio syndrome and would have had difficulty climbing the narrow stairs in place at the time of the addition, is extraordinary and unique to the Arkefls. Having determined that the need to expand was extraordinary and unique, we must now consider whether there was sufficient evidence that the Arkefls were unable to build in any direction but north, toward the road.
¶34 The Board claims that the Arkefls could have expanded toward the east, over the dirt-floored storage room. The Board points to the testimony of Slingsby, a contractor and the previous owner of the property, who opined that it is typically easier to remodel rather than to build a new addition. However, when asked on cross whether he would “agree that [one] could have put a major addition on that house” to the east, Slingsby answered “[s]ure, anything’s possible.” This is hardly an affirmative statement that it would have been easier to build to the east. In fact, Slingsby consistently testified that “it depends on what you want to do with the house,” as to whether expanding to the east was an option. In his opinion, “if you were going to add on a bedroom, it might be easier.” However, the Arkefls were not adding a bedroom but were adding living space to accommodate Debbie’s sister, a project requiring more space than one bedroom. Debbie’s testimony that they did not consider the storage area as part of the living space of the house, combined with the exhibits and the viewing of the house provided the referee, and hence the court, with sufficient evidence that expanding to the east was not a reasonable option.
¶35 The Board also argues that Vince testified that he could have added onto the south side without any impediment. In fact, on cross, the county attorney stated that if “regardless of expense, and regardless of aesthetics,” Vince had chosen to build onto the south of the house, he “would not have increased the setback violation.” The county attorney followed this statement by asking, “[c]orrect?” Vince answered in the affirmative. There are two reasons that the Board’s analysis of this interaction is incorrect. First, the statement is essentially a hypothetical that assumes the Arkefls, with unlimited resources, had chosen to add onto the south side of the house. Second, the statement actually ends by positing, not that the Arkefls could have expanded to the south, but, if they had, there would have been no increase in the setback. Given the compound nature of the question, it is likely that Vince was agreeing to the obvious-if they had built to the south, they would not have increased the setback.
¶36 The Arkells’ actual testimony indicates that they did not consider expanding to the south a possibility because of the sewer cleanout and accompanying sewer line. This position was supported by the exhibits showing the house layout, including the sewer cleanout on the south side, and by the referee’s personal viewing of the property. This evidence is sufficient to support the court’s determination that expanding to the south was not a reasonable option.
¶37 Finally, the Board claims that the Arkells could have expanded to the west, where the septic tank and drain field are located. The Board points to the testimony of the County Health Director who stated that it is routine for property owners to obtain permits to relocate septic tanks and drain fields. Further, the Board, citing testimony given at the Board hearing that relocation would cost between $3,000 and $5,000, claims that relocation would not be cost prohibitive.
¶38 Once again, we disagree with the Board’s analysis of the testimony. While the health director did state that it was not “uncommon” for property owners to apply for permits to relocate septic tanks, he also stated that state regulations require at least a 5-foot separation between a septic tank and a house and laid the foundation for a diagram showing that the house and septic tank were only 10 feet apart, illustrating that an expansion of more than 5 feet would require relocation of the septic tank. Further, the $3,000 to $5,000 figure was suggested by Anson Crutcher, the Arkells’ neighbor and a vocal opponent of the variance, during his testimony before the Board. Later in the same hearing a board member disputed that figure and posited that the actual cost “could end up [at] $10,000.” The combination of a 5-foot separation requirement and a potential $10,000 price tag provided the court with sufficient evidence that expanding to the west was not a reasonable option.
¶39 We hold that there was sufficient evidence before the court to support its conclusion that without the variance the Arkells would suffer unique, unnecessary hardship.
CONCLUSION
¶40 The District Court did not abuse its discretion by overturning the Board’s denial and granting the variance.
CHIEF JUSTICE GRAY, JUSTICES WARNER, RICE andNELSON concur.
|
[
13,
53,
-30,
-49,
-9,
-18,
-8,
51,
0,
37,
30,
-19,
28,
-39,
29,
12,
-37,
10,
39,
-13,
-21,
30,
-52,
-22,
-30,
17,
-43,
-29,
-4,
20,
44,
-19,
-46,
5,
-37,
52,
15,
73,
-28,
0,
-17,
-16,
-54,
-44,
-1,
42,
22,
-13,
16,
7,
-14,
2,
27,
-18,
-4,
-26,
-34,
-16,
-16,
-1,
-16,
-9,
0,
14,
55,
2,
-15,
10,
25,
-38,
-12,
20,
-7,
-19,
-20,
-16,
40,
-10,
-74,
2,
-28,
7,
14,
1,
1,
-47,
0,
1,
-2,
86,
-61,
-28,
60,
22,
2,
2,
37,
36,
16,
28,
1,
29,
68,
12,
-2,
0,
18,
0,
69,
4,
-43,
-9,
-34,
-11,
-24,
-4,
38,
35,
13,
8,
3,
5,
-5,
18,
-28,
-12,
49,
2,
10,
-5,
-19,
13,
-51,
5,
22,
-34,
18,
-5,
-67,
24,
39,
-42,
34,
-5,
18,
-83,
25,
-11,
-31,
5,
-4,
-8,
-1,
40,
18,
-15,
13,
-40,
-8,
-25,
62,
15,
-5,
7,
-70,
9,
-36,
24,
-53,
15,
44,
40,
-1,
4,
31,
-5,
4,
-55,
-16,
40,
-10,
-20,
42,
37,
1,
19,
33,
0,
44,
9,
11,
-9,
2,
-26,
-22,
-29,
1,
2,
-44,
-17,
-13,
17,
37,
25,
31,
-7,
-45,
-1,
23,
-6,
-9,
-10,
-27,
34,
37,
50,
39,
45,
24,
-8,
6,
-30,
16,
20,
-76,
14,
19,
34,
55,
-30,
-25,
43,
38,
-8,
40,
-3,
-55,
-30,
-2,
14,
59,
3,
-18,
45,
-50,
-22,
-25,
-1,
40,
-83,
-68,
-59,
-7,
24,
32,
26,
10,
19,
28,
-5,
50,
-6,
3,
-20,
20,
9,
-57,
-20,
-30,
13,
-24,
2,
-21,
53,
-31,
-12,
-21,
-36,
29,
-34,
5,
-7,
-35,
4,
36,
88,
29,
41,
-37,
0,
-22,
-24,
-49,
16,
-6,
-35,
9,
0,
27,
-55,
-28,
7,
-55,
-44,
28,
-33,
12,
10,
-22,
27,
31,
24,
5,
13,
3,
-16,
-22,
-3,
-9,
-52,
33,
-16,
13,
-11,
-38,
45,
39,
9,
-48,
23,
-22,
-40,
-14,
6,
48,
-6,
-6,
-45,
36,
-7,
-22,
-17,
47,
3,
50,
46,
-35,
-48,
-43,
13,
-17,
-9,
-5,
6,
-22,
0,
-15,
-16,
-18,
-39,
-17,
33,
-15,
-26,
-57,
-18,
34,
-48,
36,
-10,
5,
-7,
24,
-35,
51,
20,
-26,
-18,
-44,
-12,
-12,
33,
-10,
37,
67,
-9,
10,
-34,
14,
23,
-21,
-16,
-2,
16,
-8,
-39,
19,
2,
-7,
-9,
-21,
-17,
-79,
-25,
-26,
50,
-31,
-22,
-5,
-16,
-13,
-28,
-11,
-46,
32,
63,
-62,
-7,
11,
71,
-6,
-10,
0,
-36,
-68,
-18,
14,
9,
4,
20,
-61,
46,
-28,
6,
30,
0,
7,
2,
-54,
24,
-42,
-12,
-16,
-34,
-26,
-32,
-27,
32,
22,
37,
-29,
42,
-21,
-13,
30,
5,
38,
7,
-6,
-18,
63,
25,
-14,
-22,
16,
-5,
-54,
-4,
-5,
-6,
42,
42,
8,
-5,
8,
9,
-1,
9,
-23,
-27,
61,
3,
-30,
31,
-43,
6,
-45,
0,
18,
41,
22,
16,
9,
-88,
13,
-19,
18,
16,
22,
-8,
11,
-5,
-23,
-55,
-21,
15,
-38,
22,
-3,
49,
29,
-39,
11,
5,
-30,
5,
45,
1,
-16,
-11,
-2,
-34,
-26,
-43,
23,
1,
-23,
30,
50,
-12,
-48,
-2,
-24,
24,
-1,
0,
-5,
45,
37,
2,
42,
16,
-3,
29,
-33,
-7,
-11,
-65,
6,
-23,
20,
-51,
-22,
5,
-19,
7,
-69,
13,
-27,
43,
46,
73,
4,
5,
21,
30,
-9,
-36,
-26,
9,
28,
-46,
-25,
-43,
0,
-48,
-22,
7,
26,
-3,
-46,
-4,
-10,
-37,
4,
24,
27,
6,
-2,
97,
12,
-29,
-26,
7,
-26,
-46,
-7,
-36,
-31,
21,
-27,
-20,
42,
26,
31,
22,
17,
-18,
-5,
65,
-46,
17,
-7,
36,
47,
84,
24,
-24,
30,
-3,
-31,
16,
6,
-15,
-7,
-46,
-43,
100,
2,
9,
-17,
-49,
40,
0,
-7,
3,
38,
-20,
-4,
25,
50,
-15,
-3,
17,
5,
-17,
0,
-57,
-26,
6,
-27,
25,
-25,
-11,
53,
0,
15,
-44,
5,
-72,
72,
-2,
46,
8,
-65,
-50,
0,
31,
10,
36,
-32,
39,
10,
81,
21,
-21,
-7,
41,
39,
24,
37,
-43,
-48,
1,
4,
-44,
-17,
17,
2,
0,
38,
-86,
29,
13,
-49,
20,
-70,
-6,
-27,
0,
35,
-28,
44,
-29,
-53,
35,
39,
-15,
19,
11,
-11,
0,
15,
-47,
1,
-40,
19,
-30,
-18,
4,
36,
6,
-29,
-32,
-33,
7,
62,
-40,
-8,
12,
-3,
58,
-10,
14,
-8,
0,
1,
53,
79,
-20,
25,
-2,
24,
40,
24,
18,
75,
8,
-44,
-26,
26,
18,
-25,
-31,
-60,
-33,
-12,
31,
28,
-26,
29,
-43,
-12,
-11,
16,
-16,
17,
4,
-3,
27,
45,
47,
-11,
-57,
10,
-5,
13,
-63,
-47,
-32,
-10,
-5,
-13,
-21,
1,
-17,
29,
24,
10,
-17,
0,
-5,
7,
-23,
-14,
-16,
-14,
35,
-4,
-11,
0,
74,
44,
38,
32,
41,
-16,
28,
35,
-51,
-34,
-32,
55,
-30,
13,
-14,
-3,
68,
-14,
-1,
-1,
36,
-28,
0,
10,
9,
-13,
-13,
-4,
12,
-3,
-1,
-3,
24,
2,
-44,
-7,
18,
55,
12,
2,
8,
-26,
-36,
-4,
-24,
-2,
40,
-14,
20,
-32,
-1,
53,
-10,
-8,
8,
25,
41,
58,
39,
67,
46,
-26,
-9,
-55,
-20,
48,
15,
21,
37,
-22,
-8,
19,
-5,
24,
-42,
-66,
32,
8,
-25,
32,
-9,
-19,
35,
27,
-5,
-42,
-4,
68,
25,
10,
-10,
7,
26,
4,
54,
-21,
-45,
-16,
-21,
-40,
-32,
-13,
0,
13,
-37,
-26,
-13,
-39,
-38,
-58,
-9,
17,
-13,
-36,
-37,
-3,
-82,
-27,
65,
21,
-30,
-41,
0,
-38,
-34,
-9,
46,
21,
69,
-26,
21,
-25,
-14,
-3,
19,
-19,
13,
-33,
-49,
-18,
-33,
31,
23,
3,
-47,
-5,
-47,
32,
-7,
-1,
49,
39,
40,
52,
-34,
-25,
15,
0,
-21,
-22,
16,
-7,
0,
9,
-21,
46,
63,
-53,
16,
-45,
-73,
31,
-15,
-19,
86,
-27,
16,
30,
-34,
-14,
16,
1,
-13,
-4,
-2,
-14,
34,
62,
-7,
-14,
-53,
-41,
7,
-16,
31,
-23,
-23,
0,
4,
52,
26,
-6,
-31,
65,
-14,
11,
-1,
9,
-13,
-22,
16,
15,
-22,
21,
-1,
-7,
36,
25,
-41,
42,
-35,
-27,
-4
] |
JUSTICE WARNER
delivered the Opinion of the Court.
¶1 This case marks the third appearance before this Court of the dispute between siblings Joan K. McCormick (Joan) and Clark A. Brevig (Clark).
¶2 The litigation began in 1995 when Joan filed suit against Clark and their partnership, Brevig Land, Live and Lumber (the Partnership), seeking an accounting and dissolution. Clark counterclaimed against Joan for fraud, deceit, negligent misrepresentation, and to quiet title. Clark also filed a third-party complaint against the Partnership accountants alleging professional negligence. In McCormick v. Brevig, 1999 MT 86, 294 Mont. 144, 980 P.2d 603 (McCormick I), we affirmed the District Court’s entry of partial summary judgment in favor of Joan on Clark’s counterclaim, but determined the court had erred when it granted summary judgment to some of the third-party defendant accountants. Thus, we reversed and remanded for further proceedings.
¶3 After the remand of McCormick I, the District Court held a bench trial resulting in findings of fact, conclusions of law and an order dissolving the Partnership and ordering a winding up of the Partnership’s business. The District Court also appointed a Special Master who prepared a limited accounting of the Partnership’s assets. As a result of that accounting, the District Court ordered Joan to sell her interest in the Partnership to Clark for a fixed amount. Joan appealed both the order requiring her to sell her Partnership interest to Clark, and the District Court’s determination of the amount her interest was worth. In McCormick v. Brevig, 2004 MT 179, 322 Mont. 112, 96 P.3d 697 (McCormick II), we determined, inter alia, that the District Court erred by ordering Joan to sell her Partnership interest to Clark and by not requiring a complete accounting of the Partnership’s business to accurately determine the value of each partner’s interest. We remanded the case for a full Partnership accounting, a liquidation of the Partnership assets and a distribution of those assets to Joan and Clark based upon their relative contributions to the Partnership.
¶4 On remand, pursuant to our order in McCormick II, the District Court appointed a second Special Master to prepare a complete accounting of the Partnership business, contributions of the partners, and Partnership assets. After the Special Master prepared and filed his report (Report), both Joan and Clark filed objections. The District Court held a hearing on these objections and thereafter issued its Findings of Fact, Conclusions of Law and Order, dated September 20, 2005.
¶5 The District Court approved most of the Special Master’s recommendations, but made some modifications. Clark then filed a notice of appeal and Joan cross-appealed.
¶6 Subsequent to the parties’ notice of appeal, the District Court entered an order allowing Joan to inspect the Partnership property. Although Clark raises an issue in this appeal concerning whether the District Court had jurisdiction to enter the post-judgment order, the inspection has taken place, the issue is moot, and we do not discuss it further.
¶7 Clark raises the following issues on appeal:
¶8 1. Did the District Court err in ordering that Joan and Clark each owned 50% of the Partnership assets and that Joan had not paid the Partnership for her entire 50% interest?
¶9 2. Did the District Court err by ordering Joan to pay simple, rather than compound, interest on the amount she owed the Partnership?
¶10 3. Did the District Court err in ordering a calf-share rental arrangement between Clark and the Partnership, with 70% of the value of the calf crops paid to the Partnership and 30% of such value paid to Clark, rather than 60% to the Partnership and 40% to Clark?
¶11 4. Did the District Court err by ordering that Clark be reimbursed at the same interest rate carried by a Partnership loan he personally paid, rather than at 10%?
¶12 5. Did the District Court err by not crediting Clark with a $45,000 cash contribution to the Partnership, which was used to purchase silver owned by the Partnership?
¶13 Joan raises three issues on cross-appeal:
¶14 1. Did the District Court err in creating a deficit capital account for Joan in connection with her acquisition of one-half of her 50% interest in the Partnership, rather than concluding that she had previously paid for her entire 50% interest?
¶15 2. Did the District Court err in using a calf crop-share method, rather than a rental method, to calculate the amount owed to Clark as his share of the proceeds of the cattle operation?
¶16 3. Did the District Court err in ordering Joan to pay one-half of the Special Master’s fee?
¶17 Because they are so closely related and concern the same subject, our discussion of Issue One raised by Clark includes our discussion of Cross-Appeal Issue One raised by Joan. Likewise, as they are also closely related and concern the same subject, we include our discussion of Joan’s Cross-Appeal Issue Two with our discussion of Clark’s Issue Three.
BACKGROUND
¶18 The factual and procedural background of this epic dispute can be found in McCormick I and McCormick II. For the sake of brevity, we refer here only to the facts directly related to this third appeal.
¶19 In McCormick II, this Court disagreed with the District Court’s manner of dissolving the Partnership. We remanded the proceedings to the District Court with specific instructions that a full Partnership accounting be prepared and that the assets of the Partnership be liquidated. On remand, the District Court appointed a certified public accountant as Special Master to:
[C]onduct a comprehensive investigation of the transactions of the Brevig Land, Live and Lumber partnership and the partners, detailing an accounting of all of the partnership’s assets and liabilities, as well as distributions of assets and liabilities to the partners in accordance with their respective interests in the partnership ....
¶20 During the seven months of his investigation, the Special Master had unlimited access to the Partnership records. He also met separately with the parties and their attorneys and interviewed witnesses.
¶21 In June, 2005, the Special Master filed his Report detailing the transactions of the Partnership, the contributions Joan and Clark made to the Partnership, its assets and liabilities, and recommending a proposed distribution to the partners of the money received on sale of the Partnership assets. The District Court adopted most of the recommendations of the Report, including the Special Master’s determination that Joan and Clark were 50/50 owners of the Partnership assets. However, the Special Master recommended that the court order that Joan’s capital account was deficient because she had not paid for one-half of her 50% Partnership interest.
¶22 In 1984, Joan and Clark signed an Addendum to their partnership agreement which provided that their respective interests in the Partnership profits would be adjusted annually based on each partner’s net contributions. The Special Master specifically concluded that despite the Addendum, Joan and Clark should be treated as 50/50 owners of the Partnership.
¶23 The District Court found that because the Partnership had filed tax returns between 1984 and 2001 indicating that Joan and Clark were 50/50 owners of the Partnership, they had essentially disregarded the formula set forth in the Addendum. Thus, the court agreed with the Special Master that Joan and Clark should be treated as 50/50 owners of the Partnership assets. The District Court also adopted the Special Master’s recommendation that a deficit capital account, owed by Joan be created. Upon sale of the Partnership assets, the amount of this deficit account would be deducted from her share of the proceeds in order to pay for one-half of her 50% interest in the Partnership. In so doing, the court reversed an earlier finding, made prior to the complete accounting, indicating Joan had already paid for her entire 50% interest. The District Court also agreed with the Special Master that simple interest should accrue on the amount Joan owed, at the statutory rate of 10%.
¶24 The result of the District Court’s final order is that while Joan purchased an additional 25% interest in the Partnership in 1984, thus making the parties’ ownership 50/50, she had not contributed enough to the Partnership to pay for the additional 25%. Thus, in order to correct for this deficiency, as well as other errors made in the administration of the estate of Joan and Clark’s father, Charles, a deficit capital account entitled “25% Purchase-Joan McCormick” was ordered. The amount of this account was $343,590, plus simple interest.
¶25 For several years, Clark grazed his cattle on Partnership land without paying the Partnership. With regard to the amount Clark owed the Partnership as a result of the cattle operation, the Special Master concluded in his Report that there were “conflicting issues” concerning both the “calf crop” method advocated by Clark and the “rental” method advocated by Joan. He determined that historically the Partnership sometimes split the calf crop 60/40, but on at least one occasion it had split the calf crop 75/25. After considering the matter in the context of the Partnership operation and what he determined to be the custom of the cattle industry, the Special Master recommended to the District Court that a calf crop share method be adopted, with 70% of the proceeds from the sale of calves going to the Partnership and 30% to Clark, as this was the most equitable way to apportion the proceeds from the sale of the calves in question. The District Court adopted this recommendation.
¶26 In 2001, without telling Joan, Clark paid off a Partnership Farm Credit Services loan in the amount of $341,471. The loan was not in default, there is no indication that the Partnership could not have paid it according to its terms, and Clark does not argue that there was a business reason for him to personally pay the loan. The District Court agreed with the Special Master that this repayment by Clark constituted a capital contribution to the Partnership and that the Partnership should, in addition to reimbursing Clark for payment of the debt, pay interest to Clark at 9.25%-the same rate carried by the FCS loan he paid off.
¶27 In his Report, the Special Master did not credit Clark’s Partnership account with an additional capital contribution in the amount of the purchase price of silver which he bought for the Partnership as an investment. The District Court adopted the Special Master’s recommended valuation of Clark’s Partnership interest, with no additional credit for the silver purchase.
¶28 In its final Order the District Court also ordered Joan to pay one-half of the Special Master’s fees.
¶29 The District Court entered judgment. From that judgment Clark appealed and Joan cross-appealed. We discuss further facts below as they relate to the specific issues.
STANDARD OF REVIEW
¶30 This Court will affirm factual findings of a district court sitting without a jury unless those findings are “clearly erroneous.” Leichtfuss v. Dabney, 2005 MT 271, ¶ 20, 329 Mont. 129, ¶ 20, 122 P.3d 1220, ¶ 20 (citation omitted). We have adopted a three-part test for determining whether a finding is clearly erroneous:
“First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that a finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the [CJourt with the definite and firm conviction that a mistake has been committed.”
Leichtfuss, ¶ 20 (quoting Interstate Prod. Credit v. DeSaye, 250 Mont 320, 323, 820 P.2d 1285, 1287 (1991)).
¶31 Our review of a district court’s conclusions of law is plenary and we must determine whether the court’s interpretation of the law is correct. Leichtfuss, ¶ 21 (citation omitted).
APPEAL ISSUE ONE AND CROSS-APPEAL ISSUE ONE
¶32 Did the District Court err in ordering that Joan and Clark each owned 50% of the Partnership assets and that Joan had not paid the Partnership for her entire 50% interest?
¶33 Did the District Court err in creating a deficit capital account for Joan in connection with her acquisition of one-half of her 50% interest in the Partnership, rather than concluding that she had previously paid for her entire 50% interest?
¶34 Clark first claims that the District Court erred when it used the formula set out in the Addendum described in ¶ 22 above to increase Joan’s ownership in the Partnership from 25% to 50% as of January 1, 1984, but did not subsequently apply this same formula to decrease her share in later years. Clark also argues that Joan judicially admitted that the Addendum controls the determination of their Partnership interests and, thus, she should be judicially estopped from arguing against the Addendum’s application.
¶35 Clark then argues that the “deficit capital account” created by the Special Master does not constitute “money” or “other property” as described in § 35-10-106, MCA. Thus, according to Clark, Joan had not contributed sufficient value to the Partnership to justify the increase in her Partnership ownership from 25% to 50%.
¶36 Joan agrees with the District Court that she has a 50% interest in the Partnership. She cross-appeals the District Court’s order requiring her to pay for her additional 25% interest by establishing a deficit capital account, as recommended by the Special Master.
¶37 Joan argues that the District Court had previously determined, both as a matter of law and as a matter of fact, that she and Clark were 50/50 owners of the Partnership. According to Joan, Clark did not appeal this determination and, pursuant to our decision in McCormick II, it is finally established as the law of the case that she owns a 50% interest in the Partnership, and that she has paid for her entire interest. Thus, she argues, these determinations are not subject to further appellate review. In the alternative, Joan argues that the District Court found as a matter of fact that the she and Clark are 50/50 owners of the Partnership and this finding is not clearly erroneous.
¶38 The law of the case doctrine expresses the practice of courts generally to refuse to reopen what has been decided. Scott v. Scott, 283 Mont. 169, 175, 939 P.2d 998, 1001-02 (1997). Frequently law-of-the-case terminology is used by courts when deciding whether to deny appellate review of an issue that has not been properly preserved for appeal in the trial court or otherwise has not been presented to an appellate court properly. Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure vol. 18B, § 4478.6, 815 (2d ed., West 1990). The law of the case binds the parties only on those issues that the Court has previously decided. In re Estate of Snyder, 2007 MT 146, ¶ 27, 337 Mont. 449, ¶ 27, 162 P.3d 87, ¶ 27. Under the doctrine of law of the case, a legal decision made at one stage of litigation which is not appealed when the opportunity to do so exists, becomes the law of the case for the future course of that litigation and the party that does not appeal is deemed to have waived the right to attack that decision at future points in the same litigation. Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, 897 (2d Cir. 1997) (quoting North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 164 (2d Cir. 1995) (citation omitted)).
¶39 In its Findings of Fact and Conclusions of Law dated April 1, 2000, the District Court decided, as a matter of law, that “[w]hen the partnership is dissolved, Joan shall be treated as a 50% partner....” In McCormick II Joan did not appeal the conclusion that she owned 50% of the Partnership. Although Clark filed a cross-appeal, he did not appeal the court’s conclusion that Joan was a 50% partner. This Court did not disturb the District Court’s conclusion that Joan and Clark each owned 50% of the Partnership assets. Nor did our remand in McCormick II order the District Court to revisit the issue of the parties’ respective ownership percentages. Rather, we directed the District Court to conduct a full accounting of the Partnership’s assets. McCormick II, ¶ 51. Thus, the determination that Clark and Joan each own 50% of the Partnership assets is the law of this case and Clark is bound thereby.
¶40 Joan, in her first issue presented on cross-appeal, argues that it is also the law of the case that she has paid for her entire 50% interest in the Partnership. Thus, according to Joan, the District Court erred in finding she had not paid for her additional 25% interest and in adopting the Special Master’s recommendation that a deficient Partnership account be assigned to her.
¶41 After our remand in McCormick I, the District Court entered judgment concluding that the Partnership was dissolved, that Joan must sell her interest to Clark, and that the partial accounting of the Partnership was sufficient to show the amount that Clark had to pay to purchase Joan’s Partnership interest. In McCormick II this Court disagreed with the District Court, analyzed the case differently, and reversed. We concluded that while the Partnership was dissolved, the law required that its assets be liquidated at a public sale. We also concluded that the accounting upon which the District Court determined the value of Joan’s partnership interest was incomplete and therefore reversed and remanded, ordering that the District Court conduct a complete Partnership accounting. McCormick II, ¶ 51. In this instance, the percentage of ownership Joan has in the assets of the Partnership is a separate matter from whether she owes a debt to the Partnership for the acquisition of her ownership interest. By ordering a complete Partnership accounting, this Court necessarily reversed the District Court’s conclusion that Joan had completely paid for her Partnership interest, and remanded for a determination of the status of each partner’s Partnership account. Thus, while the doctrine of law of the case establishes that Joan owns 50% of the Partnerships assets, it is not the law of the case that Joan has completely paid for her 50% Partnership interest.
¶42 Joan also argues that Clark is judicially estopped from claiming she has not fully paid for her Partnership interest. According to Joan, because Clark previously settled his third-party claims against prior Partnership accountants, arising from their Partnership record-keeping, creating a deficit capital account which she must pay might result in a double recovery for Clark.
¶43 Clark is not judicially estopped from receiving an additional $343,590 upon sale of the Partnership assets because he settled a claim against previous Partnership accountants. Judicial estoppel applies to declarations made in a court proceeding and prevents a party from taking inconsistent positions in a subsequent proceeding. Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15, 307 Mont. 45, ¶ 15, 36 P.3d 408, ¶ 15. Joan refers to no judicial declaration made by Clark in his claim against the accountants which is inconsistent with his claims against Joan or the Partnership. The District Court specifically found that the proceeds from Clark’s settlement with the accountants were not relevant to the full accounting of the Partnership’s affairs as it was not a party to the settlement. Joan points us to no contrary evidence.
¶44 The District Court did not err in concluding that Clark and Joan each owned 50% of the Partnership’s assets, but that Joan had not paid for her additional 25% interest, resulting in a deficit capital account in the amount of $343,590, plus interest, which was to be deducted from her share of the proceeds of the sale of the Partnership assets.
APPEAL ISSUE TWO
¶45 Did the District Court err by ordering Joan to pay simple, rather than compound, interest on the amount she owed the Partnership?
¶46 Clark claims the District Court erred when it ordered that Joan pay simple, rather than compound, interest on the amount she owed the Partnership for the purchase of her additional 25% interest. He says Joan essentially owes a debt that is in default and analogizes Joan’s deficit capital account to a default on a Farm Credit Services loan. He argues that because compound interest is charged on default of such loans, Joan should pay compound interest on her deficit capital account.
¶47 Joan argues that if she does have a deficit capital account, it should not bear interest. She alternatively argues that if she is to be charged interest, it should be simple, rather than compound.
¶48 Section 31-1-106(1), MCA, provides that interest is payable on all money owed. However, the statute does not provide that interest is not to be compounded. At common law, compound interest was not allowed. Wilson v. Davis, 1 Mont. 183, 195 (1870); Curtis v. Valiton, 3 Mont. 153, 155 (1878). With the adoption of the Code of 1895, the Legislature determined that parties were free to agree in writing to compound interest. Civil Code of 1895, § 2587, now § 31-1-109, MCA; Stanford v. Coram, 26 Mont. 285, 293-94 (1902). Section 31-1-109, MCA, provides that interest is compounded if the parties so agree in writing. Under the canon expressio unius est exclusio alterius we interpret the expression of one thing in a statute to imply the exclusion of another. State v. Good, 2004 MT 296, ¶ 17, 323 Mont. 378, ¶ 17, 100 P.3d 644, ¶ 17. In the absence of an express agreement in writing between the parties, Montana law does not provide for compound interest. The District Court did not err when it determined Joan must pay simple interest on her deficit capital account.
APPEAL ISSUE THREE AND CROSS-APPEAL ISSUE TWO
¶49 Did the District Court err in ordering a calf-share rental arrangement between Clark and the Partnership, with 70% of the value of the calf crops paid to the Partnership and 30% of such value paid to Clark, rather than 60% to the Partnership and 40% to Clark?
¶50 Did the District Court err in using a calf crop share method, rather than a rental method, to calculate the amount owed to Clark as his share of the proceeds of the cattle operation?
¶51 Clark claims the District Court erred when it adopted the Special Master’s calf crop split for his cattle’s use of the Partnership property, with 70% going to the Partnership and 30% going to Clark. According to Clark, the split ought to be 60% to the Partnership and 40% to him. He points out that his retained expert said the court should use a 60/40 split and that this witness was the only expert to offer testimony on this issue. Clark also argues that by adopting a 70/30 split, the District Court erred by ignoring the law of the case which had established that a 60/40 split was industry custom.
¶52 Clark argues that the Special Master’s basis for recommending a 70/30 split of the calf crop was error because it was based on an opinion of one Glen Hough. According to Clark, Hough’s opinion was inadmissible because it was hearsay and because Hough was not disclosed as an expert witness.
¶53 Absent a party’s specific request, a report from a Special Master is not generally subject to the Montana Rules of Evidence. M. R. Civ. P. 53(c). The relevant portion of M. R. Civ. P. 53(c) provides:
When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Montana Rules of Evidence for a court sitting without a jury.
¶54 As we indicated in McCormick II, absent a request, the Special Master “was not obligated to make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Montana Rules of Evidence for a court sitting without a jury.” McCormick II, ¶ 56. Also, if the rules of evidence were to apply to the information upon which the Special Master bases his recommendations, Clark would be required to object to the admission of this evidence in order to establish error on the part of the District Court. M. R. Evid. 103(a)(1); In re Parenting of K.P., 2005 MT 297, ¶ 16, 329 Mont. 337, ¶ 16, 124 P.3d 1091, ¶ 16.
¶55 Clark makes no citation to the record where he requested that the Special Master follow the rules of evidence in gathering information upon which to base his recommendations. M. R. App. P. 23(a)(4) requires that a party cite to portions of the record upon which he relies. It is not the duty of this Court to search the record. If counsel does not cite that portion of the record where a necessary request or a necessary objection is made, we will presume that the district court did not err. See Toole v. Weirick, 39 Mont. 359, 364, 102 P. 590, 592 (1909); Johansen v. Dept. of Nat. Resources and Conserv., 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24 (citations omitted). Because Clark cites to no portion of the record where the Special Master was requested to apply the Rules of Evidence, and further cites to no portion of the record where he made an objection to the admissibility of the Master’s recommendation of a 70/30 split of the calf crop proceeds, we decline to consider this argument. Seltzer v. Morton, 2007 MT 62, ¶ 158, 336 Mont. 225, ¶ 158, 154 P.3d 561, ¶ 158.
¶56 The District Court, in adopting the recommendation for a 70/30 calf crop split, found that it was supported both by historical use of the Partnership property and the Special Master’s own research into industry standards. This finding of fact is supported by substantial evidence in the record and is not clearly erroneous.
¶57 Nor was a 60/40 calf crop split the law of the case. Although the District Court did previously find that a calf crop share agreement was consistent with industry custom or practice, that agreement was between Clark and an accountant - not between Clark and Joan. See McCormick I, ¶¶ 116-17. Also, all the District Court found in 1996 was that such sharing of the calf crop “was consistent with industry custom and practice.” Even if the cattle share to which the District Court referred was a 60/40 split (which is not established by the record), such finding does not require that this one year’s agreement applied to all other years at issue in this litigation or to an agreement between Joan and Clark. The District Court’s finding that a 1996 agreement concerning a calf crop was consistent with industry custom and practice did not establish law of the case that must be followed in the September 20, 2005, judgment. Estate of Snyder, ¶ 27.
¶58 We turn now to Joan’s cross-appeal concerning the cattle. Joan argues that the District Court erred in adopting the Special Master’s recommendation that a calf crop share arrangement be used, as opposed to a “rental” method wherein the Partnership land is rented to Clark for a fixed amount. According to Joan, she and Clark had an implied agreement for grazing cattle on the Partnership property which provided for a rental of the land. She claims that the calf crop share method adopted by the District Court resulted in a $254,663 loss to the Partnership rather than a profit of $134,000 which would have been realized if a rental method was used.
¶59 Although Joan claims that an implied agreement existed between the Partnership and Clark allowing him to run his cattle on Partnership property, like Clark, she cites to no part of the record wherein she offered evidence of this alleged agreement. Nor does she cite to any part of the record where she argued to the District Court that it existed. M. R. App. P. 23(a)(4), which requires a party to cite to the portions of the record they rely upon in making an argument, applies to her as well as to Clark. We will not further consider Joan’s argument that the District Court erred in determining how the Partnership would be compensated by Clark for the use of its land to run his cattle.
APPEAL ISSUE FOUR,
¶60 Did the District Court err by ordering that Clark be reimbursed at the same interest rate carried by the Partnership loan he personally paid, rather than at 10%?
¶61 In 2001 Clark personally paid a Partnership Farm Credit Services loan. He claims the District Court erred in ordering that he he paid interest on the amount of this payment at the rate of the loan he paid, 9.25%, rather than at 10%.
¶62 Section 35-10-401, MCA, provides:
(4) A partnership shall repay a partner who, in aid of the partnership, makes a payment or advance beyond the amount of capital the partner agreed to contribute.
(5) A payment made by a partner that gives rise to a partnership obligation under subsection (3) or (4) constitutes a loan to the partnership. Interest accrues from the date of the payment or advance.
¶63 Section 35-10-105(2), MCA, provides:
If an obligation to pay interest arises under this chapter and the rate is not specified, the rate is that specified in 31-1-106.
Section 31-1-106, MCA, fixes interest at 10 % when no other rate is specified.
¶64 Clark argues that he made a loan to the partnership when he paid the Farm Credit Services loan, that no interest rate was specified, and therefore he must be paid interest at 10%.
¶65 Joan responds by arguing that the payoff was a capital contribution by Clark to the Partnership. Furthermore, because Clark acknowledged that he was paying the loan off at a rate below 10%, requiring the Partnership to pay the loan back at 10% would unfairly allow Clark to personally profit at the expense of the Partnership. ¶66 The District Court found Clark’s payment of the loan benefited the Partnership. However, the District Court also adopted the Special Master’s recommendation that the payoff be treated as a capital contribution, bearing simple interest at the same rate as the Partnership loan Clark paid, rather than the 10% provided for by § 31-1-106, MCA.
¶67 The record establishes that Clark, with no notice to his partner Joan, personally paid a Partnership loan bearing an interest rate of approximately 9.25%. The loan was not in default, and there is no evidence that the Partnership could not have paid the loan according to its terms. Clark, who was in complete control of the Partnership, made no arrangements for repayment. Specifically, the Partnership and Clark did not agree on an interest rate. Now, in addition to being repaid with interest, Clark has the temerity to argue that he is owed an additional $53,492 by charging the Partnership 10% interest on a loan it could have paid at 9.25%.
¶68 A partner owes a fiduciary duty to other partners. Wilson v. Wilson, 64 Mont. 533, 543, 210 P. 896, 899 (1922). Section 35-10-405(2)(b), MCA, imposes a duty of loyalty on a partner to refrain from dealing with the partnership as a party having an interest adverse to the partnership, without the consent of the other partners. Also, § 35-10-405(5), MCA, imposes a duty of good faith and fair dealing on partners.
¶69 Clark, acting unilaterally, with no business reason, paid a Partnership loan carrying a 9.25% interest rate, and now seeks to charge the Partnership 10% interest and keep the profit personally, to the detriment of his partner. This, in effect, constitutes dealing with the Partnership as a party with an adverse interest. Likewise, it is a violation of good faith and fair dealing for a partner, with no business reason, to substitute a 9.25% Partnership loan payable to a third party with a 10% loan payable to that partner.
¶70 It would be unlawful and inequitable to reverse the District Court and order that Clark be paid 10% interest on the amount used to pay the Farm Credit Services loan and we decline to do so.
APPEAL ISSUE FIVE
¶71 Didi the District Court err by not crediting Clark with a $45,000 cash contribution to the Partnership, which was used to purchase silver owned by the Partnership?
¶72 Clark claims the District Court erred when it adopted the Special Master’s recommended accounting because it did not credit him for money he personally advanced to purchase silver owned by the Partnership. According to Clark, because the silver was purchased with life insurance proceeds belonging to him, the Special Master was wrong to list the silver as a Partnership asset and not credit him with a contribution to the Partnership.
¶73 Initially, the references Clark makes to the record do not support his argument that he personally supplied the funds used to purchase the silver. Clark contends that Joan agreed that the funds used to purchase the silver came from fife insurance proceeds that were his personal property. In support of this contention, Clark cites to a 1995 deposition of Joan. This deposition, however, was not introduced into evidence in this proceeding. Even so, in her deposition, Joan states that she does not know who the beneficiary of the life insurance policy was.
¶74 Clark states in his brief, in a conclusory fashion, that the fife insurance proceeds used to purchase the silver belonged to him. However, he cites to nothing in the record to support this contention.
¶75 Even if Clark did use his own money to purchase the silver, he does not cite us to any testimony from himself, the Special Master, or anyone else, to the effect that the Special Master did not credit him with contributing enough to the Partnership to purchase the silver. The Report does credit Clark with a $68,000 contribution from “life insurance.” This could well be a credit for the life insurance proceeds, a part of which were used to purchase the silver.
¶76 As there is no citation to the record supporting Clark’s argument that the District Court erred as required by M. R. App. P. 23(a)(4), we will not consider this issue further. Seltzer, ¶ 158.
CROSS-APPEAL ISSUE THREE
¶77 Did the District Court err in ordering Joan to pay one-half of the Special Master’s fees?
¶78 Joan claims the District Court erred when it required her to pay one-half of the Special Master’s fee to prepare the Partnership accounting. According to Joan, she should not be required to pay any part of such fee because she did not request the Special Master’s services and because the Special Master’s work was solely for Clark’s benefit.
¶79 Clark argues that the District Court did not abuse its discretion in ordering that she pay half the Special Master’s fee because Joan herself requested a “comprehensive investigation” of the Partnership’s transactions in McCormick II.
¶80 In this instance the Special Master was appointed pursuant to M. R. Civ. P. 23(a), which provides that the District Court shall fix his compensation and the manner of payment. It is within the discretion of the District Court to determine what share of a special master’s fee shall be paid by a party.
¶81 In McCormick II, Joan complained that the accounting was “inadequate as it was limited to a review of tax returns.” McCormick II, ¶ 47. It was, at least in part, Joan’s complaint about the inadequacy of the accounting which caused us to remand this case for a full Partnership accounting in McCormick II. Joan has benefited from that accounting. We conclude that the District Court did not abuse its discretion in ordering that Joan pay one-half of the Special Master’s fees.
CONCLUSION
¶82 The Order of the District Court dated September 20, 2005, is affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, MORRIS and RICE concur.
Joan and Clark have also appealed from an Order of the District Court entered after this appeal was filed; Supreme Court. No. DA 06-0483, McCormick v. Brevig. This opinion, along with a stipulation settling several issues, renders the issues raised in the later appeal moot.
Upon Charles’ death, both Clark and Joan received one-half of his estate. Because his estate primarily consisted of his 50% interest in the ranch and his 50% interest in the Partnership, Clark at that time ended up owning 75% of the ranch assets while Joan owned 25% of the assets. Sometime thereafter, Clark and Joan entered into a partnership agreement specifying that Clark owned 75% and Joan 25%. See McCormick I, ¶¶ 19-21. However, pursuant to the events discussed herein, Joan acquired an additional 25% of the Partnership assets, thus bringing the parties’ respective Partnership interests to 50/50.
See McCormick I for a summary of Charles Brevig’s involvement in the Partnership and its formation.
The record indicates that Clark has already benefited personally in the transaction. It appears that he borrowed the money to pay off the Farm Credit Services loan from his family at a lower rate than the 9.25% it carried. Thus, he will make a profit on the transaction.
|
[
-21,
12,
-4,
-37,
8,
-21,
-13,
-70,
17,
-15,
21,
32,
51,
-38,
44,
-4,
14,
-7,
35,
-1,
53,
12,
-26,
20,
-44,
36,
22,
-5,
68,
-8,
-20,
-42,
5,
-31,
-15,
4,
22,
27,
-35,
-27,
3,
27,
15,
-27,
31,
80,
38,
-41,
94,
-45,
32,
68,
-16,
20,
19,
4,
-22,
9,
-45,
-9,
56,
-20,
25,
15,
44,
-34,
30,
-9,
30,
38,
13,
-12,
3,
48,
-51,
-65,
39,
-13,
-89,
-20,
32,
-15,
-15,
-4,
-23,
-48,
-29,
-27,
10,
44,
23,
-14,
-15,
30,
-14,
-12,
0,
21,
-58,
60,
37,
27,
31,
38,
-35,
-19,
20,
-18,
42,
34,
5,
6,
-23,
-18,
35,
29,
0,
-17,
-34,
19,
-29,
7,
-24,
-10,
34,
34,
5,
35,
-6,
-1,
26,
45,
17,
-29,
-35,
-9,
-21,
-1,
-24,
20,
22,
-15,
-62,
0,
54,
16,
-6,
-13,
37,
-9,
-28,
-22,
20,
-4,
27,
-47,
-7,
-7,
63,
-34,
49,
24,
17,
-32,
-71,
46,
-2,
-1,
-25,
-56,
32,
5,
-39,
-54,
-27,
30,
35,
-52,
-4,
-38,
15,
2,
37,
-12,
-9,
-10,
-3,
-56,
34,
-50,
0,
-5,
7,
14,
-26,
-32,
30,
50,
27,
27,
19,
-43,
-15,
7,
18,
7,
23,
19,
-17,
-7,
16,
-9,
-13,
-80,
-6,
-2,
24,
-70,
-31,
0,
35,
-12,
0,
-27,
-57,
-52,
-21,
-6,
-11,
-25,
-37,
-1,
22,
-31,
3,
0,
35,
46,
29,
38,
16,
-37,
7,
20,
33,
13,
5,
31,
44,
-17,
-52,
-43,
-11,
31,
65,
6,
-35,
38,
18,
-33,
19,
26,
-35,
-11,
21,
-32,
33,
28,
2,
12,
-3,
-1,
20,
53,
-18,
-46,
10,
22,
-65,
24,
-21,
-4,
-38,
-20,
48,
15,
-41,
43,
23,
35,
17,
32,
13,
-15,
40,
-11,
-22,
-26,
-24,
18,
-49,
-27,
-31,
26,
55,
25,
-28,
57,
22,
-18,
15,
38,
6,
-70,
9,
8,
-14,
31,
15,
-4,
76,
8,
61,
-11,
4,
26,
80,
-49,
1,
21,
5,
56,
-4,
-1,
4,
-78,
50,
-58,
-3,
10,
0,
-17,
29,
-2,
-35,
4,
6,
-23,
20,
1,
12,
-39,
25,
23,
31,
24,
0,
-32,
-38,
8,
26,
26,
-52,
-30,
-62,
51,
8,
-5,
8,
47,
-15,
52,
-54,
32,
-19,
-14,
-27,
-4,
-32,
25,
25,
-59,
2,
-21,
6,
-10,
8,
-34,
38,
-20,
-10,
10,
-8,
24,
-13,
-30,
-16,
-32,
-82,
-21,
-3,
15,
43,
-34,
18,
3,
15,
-27,
-29,
33,
-29,
-47,
-14,
-8,
-7,
13,
-47,
-47,
-13,
20,
25,
-14,
17,
-7,
-26,
-51,
33,
56,
-25,
-12,
-58,
71,
-55,
-25,
79,
-46,
7,
-28,
39,
50,
8,
5,
-76,
-19,
11,
17,
7,
2,
85,
-6,
-5,
34,
-1,
20,
40,
6,
-8,
-54,
4,
-52,
4,
30,
6,
7,
44,
0,
85,
-53,
28,
48,
-59,
25,
0,
46,
-33,
3,
-61,
5,
-39,
20,
2,
-16,
-6,
23,
-46,
27,
30,
-32,
-9,
-29,
67,
33,
3,
-52,
-52,
-68,
-11,
-14,
5,
6,
-8,
-56,
19,
-20,
-10,
-34,
-21,
1,
12,
10,
49,
-11,
79,
20,
-3,
-10,
0,
35,
32,
30,
14,
-16,
-56,
35,
-38,
37,
27,
58,
30,
-8,
16,
32,
-32,
28,
11,
72,
51,
-5,
-3,
3,
35,
30,
-23,
6,
-14,
46,
54,
-13,
62,
-16,
-9,
-49,
10,
42,
2,
-13,
23,
-22,
-10,
-27,
-16,
22,
-66,
-26,
38,
-39,
-46,
2,
-14,
-12,
-44,
-29,
-16,
-13,
30,
-3,
5,
-32,
-9,
-40,
-15,
-7,
-32,
-63,
-16,
14,
43,
7,
-13,
-20,
-3,
-78,
-65,
19,
71,
-47,
0,
-26,
-15,
21,
-17,
-3,
5,
-83,
12,
-82,
0,
35,
-2,
-32,
5,
64,
-23,
-15,
32,
-14,
-18,
-44,
23,
36,
43,
55,
12,
-13,
-20,
51,
14,
12,
5,
62,
19,
-35,
0,
7,
-14,
6,
1,
-15,
-50,
-46,
55,
-16,
15,
42,
1,
-23,
31,
-18,
-1,
-36,
42,
-18,
63,
-16,
8,
-45,
66,
-41,
-4,
-37,
0,
11,
29,
16,
14,
-51,
-13,
5,
63,
45,
10,
21,
22,
9,
19,
34,
9,
-6,
-17,
51,
7,
-36,
-17,
9,
-8,
-28,
-23,
-26,
-7,
-52,
-56,
-6,
-47,
-22,
-57,
-3,
5,
73,
0,
-33,
6,
-20,
57,
49,
2,
12,
-12,
21,
8,
0,
28,
-53,
10,
-53,
-32,
-24,
-28,
-11,
-36,
-64,
-24,
-68,
24,
-47,
-68,
-16,
-30,
-40,
19,
36,
45,
-10,
23,
20,
-20,
17,
24,
-47,
-42,
88,
56,
62,
-22,
56,
24,
15,
-26,
46,
-13,
17,
1,
46,
9,
29,
14,
2,
10,
-12,
-8,
15,
-29,
13,
-2,
28,
27,
30,
-8,
-35,
11,
-32,
-27,
45,
40,
52,
12,
-5,
32,
38,
-6,
10,
31,
0,
-11,
-22,
-49,
-28,
23,
-9,
17,
61,
-3,
-2,
-5,
-35,
-1,
43,
36,
84,
-18,
-41,
20,
59,
28,
-12,
8,
12,
-29,
12,
72,
11,
-48,
-10,
36,
-17,
5,
-6,
-26,
-22,
12,
-11,
-40,
0,
1,
4,
22,
27,
-42,
-6,
6,
9,
-22,
-18,
-60,
-13,
-16,
27,
23,
40,
-46,
-9,
29,
-26,
-67,
-14,
40,
34,
-38,
20,
-16,
-54,
-17,
-28,
41,
-37,
-7,
-31,
-74,
-4,
11,
23,
47,
47,
-64,
-24,
24,
-50,
18,
33,
-13,
0,
-24,
13,
23,
-17,
12,
-1,
3,
-12,
-19,
18,
5,
47,
-19,
-1,
-10,
-14,
-4,
26,
-27,
-15,
-13,
-33,
12,
-68,
3,
-27,
-13,
-64,
8,
14,
-55,
-24,
-21,
9,
26,
18,
-17,
45,
-11,
15,
34,
-36,
7,
-9,
-34,
-14,
26,
0,
-38,
13,
26,
-42,
-11,
-13,
15,
-18,
5,
48,
-15,
36,
-9,
-30,
52,
51,
-21,
-42,
-9,
-20,
6,
-41,
-2,
-54,
48,
37,
-5,
-24,
8,
-11,
-17,
3,
52,
27,
-5,
60,
-65,
-19,
31,
-23,
-12,
-21,
-21,
23,
-49,
41,
-22,
-33,
22,
-22,
56,
-44,
-15,
-38,
-7,
-23,
-85,
8,
10,
-4,
-62,
-49,
51,
1,
-4,
30,
-18,
-26,
-4,
-14,
45,
5,
-15,
2,
31,
-46,
32,
48,
-3,
-26,
44,
-65,
-11,
-3,
2,
-46,
-44,
-23,
14,
60,
5,
33,
-50,
7,
34,
-12,
23,
2,
-35,
24,
6,
-6,
-71,
38,
-7,
36
] |
Wade, C. J.
This is an aetion by a passenger against a common carrier of passengers to recover damages for injuries alleged to have been received in consequence of the negligence and carelessness of the common carrier.
The complaint, in substance, alleges that on the 30th day of June, 1819, the defendants were common carriers of passengers for hire by stage coaches between the towns of Deer Lodge and Helena, in this territory; that upon said day the defendants, as such common carriers, and in the usual course of their business, and for the usual fare, prepaid by plaintiff, received the plaintiff as a passenger on one of their coaches, for transportation from Deer Lodge to Helena aforesaid, and undertook to carry him safely on said passage; that in managing and conducting said coach from its starting point to its place of destination, the defendants were guilty of negligence and carelessness in this, that they failed to provide a suitable, safe and competent driver, and suitable, safe, gentle and well broken horses for said coach, which was without the fault of plaintiff, who did not contribute in any way to said carelessness and negligence; that on said day, while the plaintiff was a passenger, as aforesaid, being transported as aforesaid, and in consequence of said negligence and carelessness, and by reason of the horses aforesaid being unsafe,, unsuitable and unmanageable, and one of them jumping and throwing itself on to the pole of the coach, and thereby breaking the same, and said team of horses taking fright, the coach was, in consequence thereof, thrown and placed in such a condition of peril as to endanger the life of the plaintiff, and to make it apparently unsafe for him longer to remain on the coach, and he, being actuated by great fear of bodily injury by longer remaining on the coach, jumped therefrom to the ground, by reason of the dangerous position in which the coach was placed by the defendants, in consequence of their negligence and carelessness aforesaid; that the plaintiff in so jumping from the coach acted as a reasonable and prudent man would have acted under like circumstances, and that he did not contribute to the injury he -received and was without fault on his part; that in so jumping from the coach to the ground one of the plaintiff’s legs was broken, and that in consequence thereof, it became necessary to, and his leg was amputated, causing a sickness of three months, and an expense of $750; wherefore, the plaintiff prays judgment for the sum of $25,000 besides the expenses aforesaid, and costs of suit. The defendants moved for a change of venue, which motion was overruled and a trial ensued, which resulted in a verdict for plaintiff for the sum of $20,750. Judgment was entered on the verdict, from which, and an order overruling a motion for a new trial, the defendants appeal to this court. The appellants in their briefs and arguments rely for a reversal of the judgment upon the following alleged' errors:
1. The refusal of the court to grant their motion for a change of venue.
2. The admission of incompetent and irrelevant testimony.
3. That the instructions to the jury were contrary to law.
4. That the testimony is insufficient to support any verdict for damages against defendants.
5.. That the damages are excessive.
1. Our statute provides that the court may, on good cause shown, change the place of trial, when there is reason to believe that an impartial trial cannot be had in the county designated in the complaint. R. S. p. 50, sec. 62.
The affidavit upon which the motion for a change of venue was based, made by an agent of the defendants, substantially sets forth that affiant is acquainted with and knows the general sentiments and opinions of the public in reference to this action, and the parties thereto; and from his knowledge of such public opinion, he has reason to believe and does believe that the defendants cannot have a fair and impartial trial of this action in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, so far as this action is concerned; that one trial of the case has already taken place in that county in which heavy damages were awarded to the plaintiff by the jury that tried the cause; that the verdict and judgment rendered thereon have been generally canvassed in a manner favorable to the plaintiff and unfavorable to defendants, and thereby has produced a general prejudice against defendants.
Venue may be changed only for good cause shown. The matter does not rest in the mere discretion of the court. The court has no authority to exercise any other than a judicial discretion. ' The affidavit must show the cause by a statement of facts. The court must arrive at a conclusion from the facts stated and not from the conclusions of the witness. An affidavit against a whole community, that states the mere conclusions of the witness, is of no consequence whatever. It ought to state the facts so that the court, and not the witness, may determine whether the community is prejudiced. The court is to make a finding from the facts. It is to determine in a judicial manner whether an impartial trial may be had. An affidavit which states that the affiant “is acquainted with and knows the general sentiments and opinions of the public in reference to said action and the parties thereto, and from his knowledge of such public opinion affiant has reason to believe and does believe that the defendants cannot have a fair and impartial trial of said cause,” in the county named, is the mere conclusion of the witness and does not state any facts upon which the court can ascertain the sentiment of the community.
In the case of People v. Yoakum, 53 Cal. 567, the court says: “ The conclusions reached on the application must be such as find warrant in the facts disclosed by the affidavits filed, and in the circumstances made to appear in the record.”
In the case of People v. Congleton, 44 Cal. 95, the court says: “ In this case the affidavits upon which the motion was based were exceedingly unsatisfactory; they, in the main, set forth merely that in the opinion and belief of the affiants the prisoner could not have a fair trial, owing to the popular prejudice against him.”
People v. Shuler, 28 Cal. 495, is to the same effect, and the court says: “The defendant’s affidavit does not establish the fact that .the people of the county of Butte were so prejudiced against him as to become disqualified to sit as jurors in this case. The statement in this respect was upon information and' belief, which, standing alone, no court, in the exercise of a proper discretion, could regard as of sufficient probative force to authorize a change of the place of trial.”
In People v. Mahoney, 18 Cal. 185, the court says: “ The mere affidavit of the defendant does not render it obligatory on the court to change the venue. . ... A reasonable discretion is to be given to the court on the subject; and while we should not be disposed to hold an arbitrary refusal to change the venue as warranted, yet we think the mere unsupported assertion of the defendant, that he was the victim of a general prejudice in the county, is not a conclusive reason for the changing the venue, when it is so easy to obtain corroboration of the statement if it were really true.”
The correct rule of practice in an application of this character is well stated in People v. McCauley, 1 Cal. 383, as follows^ “Affidavits for such a motion must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had. The conclusions are to be drawn by the court, and not by the defendant and his witnesses; and the court must be satisfied from the facts and circumstances positively sworn to in the affidavits, and not from the general conclusions to which the defendant may swear, or which his witnesses may depose they verily believe to be true.”
The fact that one trial had already taken place in the county, and that the verdict had been generally canvassed by the public in a manner favorable to the plaintiff and unfavorable to the defendants, whereby, as the witness says, there is a general prejudice against the defendants, is a conclusion of the witness that is not warranted by the facts.
In Sloan v. Smith, 3 Cal. 413, Mr. Chief Justice Murray says: “ The affidavit states that, owing to certain litigations in which the defendant had been engaged, a prejudice existed against him in the city of San Francisco, which would prevent him having a fair and impartial trial. . . . The affidavit was, on its face, insufficient to warrant the court in changing the venue.”
The fact that a jury might be found in a county, that answers all the statutory requirements, is not at all conclusive upon the question of the existence of such prejudice in the community as to render a fair and impartial trial impossible. This is not the test to be applied to the question, for such a jury might be found when the public sentiment was in a blaze of excitement and passion against one of the parties to the action, and the pressure of this public sentiment might make itself felt during the trial, in very many ways, upon the jury, upon the witnesses and officers of court, and upon the court itself. Jurors, witnesses and officers cannot be insensible to a strong and excited public feeling and sentiment concerning the trial that is going on, and are liable to be influenced by it, unconsciously, and with an honest intention of doing their whole duty. The court room is a public place, and a trial, in which a community is deeply interested, brings the people there, and the pressure of their presence and feeling is a strong argument, and almost irresistible, one way or the other. The influence of their presence, and the expression of their interest in the event of t he trial, in divers ways, might give a false coloring to the testimony, or warp and bias the judgment in weighing and considering it. And so it is not all of an impartial trial to secure a fair and impartial jury. But the conditions and circumstances surrounding a case that render an impartial trial impossible must come to the knowledge of the courts as facts, and not as opinions and conclusions of the witnesses. The “good cause shown,” required by the statute, must be a statement of facts upon which the court is to determine whether a sufficient case is made.
2. It is charged in the complaint that the horses attached to this coach were unsafe and unsuitable, and that they became unmanageable, one of them jumping and throwing itself on the pole of the coach, thereby breaking the same, and said team of horses taking fright, etc.
Upon the issue presented by these allegations, the plaintiff, subject to objection and exception, introduced the testimony of M. 0. Goodale, which was to the effect that she knew three of the four horses attached to the coach at the time of the accident; that one of them, on the lead, called Buckskin, “would run at the drop of the hat; was bad about shying, and quick to start; ” and that one of the other horses, called Bitter Boot, was gentle in the team to handle, “but very ferocious when you got him started, and was bad about kicking; that in starting, the Buckskin horse was very wild and tricky, like a young colt; that he was changed around frequently, and worked in different places; and that some of the drivers would not drive him at all.”
Catherine Goodale testified that she knew the Buckskin horse used by the defendants on the Deer Lodge road, about July 1, 1879; that she saw him shy during fair week of that year; that one afternoon the stage stopped at her house, and the horse acted so that the driver could scarcely stop the coach; that he always shied when passing freight wagons near her house; that he would shy so badly that the driver would have to rein the team up to the fence and hold them there; that one day the stage met some pack animals by her house, and that this horse acted so badly that the team nearly got away from the driver; that she had seen this horse act in this way very frequently; that she had lived on the road for a long time and had very often seen the horse act as she had said. On cross-examination the witness stated that it would be impossible for her to count up the times this horse had shied in passing her house, as “he is always at it if he meets a team; that upon one occasion as she was crossing the road the horse became so frightened that the driver could scarcely hold him; and that this horse was in the team attached to the coach the day of the accident.”
George H. Piatt testified “that he knew this horse called Buckskin; that in March, 1881, he rode after him and another horse attached to a buggy; that after driving about a mile east of Deer Lodge, and in turning around in a lane towards the Buckskin horse, the pole crowded him and he kicked; when he came down he was straddle of the pole and sat down on it and broke it, and then tried to run, and went probably seventy-five feet before he could be stopped; that the driver struck the horse with the whip when they were turning around in the lane just before he kicked.”
The appellants ably contend that all of this evidence is irrelevant and incompetent, and they cite authorities to the effect that evidence of other specific acts or instances of negligence on the part of the defendants, whose misconduct is alleged, independent of the negligence in question, is not competent, because raising a collateral issue. See Shearman & Redfield on Neg. sec. 191, note; Abbott’s Trial Ev. 584-85; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Warner v. N. Y. Cent. R. R. Co. 44 N. Y. 465; Robinson v. Fitchburgh R. R. Co. 7 Gray, 92; Maguire v. Middlesex R. R. Co. 115 Mass. 239; Miss. C. R. R. Co. v. Miller, 40 Miss. 45; Sherman v. Kortright, 52 Barb. 267; Jacques v. Bridgeport R. R. Co. 41 Conn. 61; Mobile R. R. Co. v. Ashcroft, 49 Ala. (N. S.) 305; Fillo v. Jones, 2 Abb. Ct. App. Dec. 121; Haynes v. Burlington, 38 Vt. 350; Kent v. Lincoln, 32 Vt. 591; 1 Whart. Ev. sec. 40; Bailey v. Town of Trumbull, 31 Conn. 581; Max Ependorff v. Brooklyn City, etc. R. R. Co. 69 N. Y. 195; Blair v. Pelham, 118 Mass. 420; Aldrich v. Pelham, 1 Gray, 510; Payne v. Lowell, 10 Allen, 147; Bush v. Susq. R. R. Co. v. Woodruff, 4 Md. 242; Bedford v. Hann. & St. Jo. R. R. Co. 46 Mo. 456; Clemens v. Hann. & St. Jo. R. R. Co. 53 Mo. 366; Coale v. Hann. & St. Jo. R. R. Co. 60 Mo. 232. And especially do they insist that the evidence of the witness Piatt, as to the conduct of this horse about twenty months after the accident complained of, is irrelevant and incompetent. It is very clear, upon principle and authority, that when a party is sued for damages flowing from negligence imputed to him, it is irrelevant to prove against him other disconnected though similar negligent acts. 1 Whart. Ev. sec. 40. To admit such proof would be like attempting to establish the guilt of a defendant on one charge of crime, by proving that he was guilty of another and similar crime.
But that is not the question. Was the horse in question safe, steady and suitable for the purpose for which he was used? or was he habitually unsafe and unfit for such use? It has been said that there is no better evidence of negligence than the frequency of accidents, and it might safely be said that there is no better evidence of the unsafe character and habit of a horse than frequent and similar acts of viciousness. The vicious habits of a horse can only be proved by instances. If an accident was caused by the shying of a horse, the fact that he was a shying horse and that he had this habit might be proved by instances, before and after the accident in question. If the accident was caused by the horse kicking and breaking the pole, proof of like instances before and after the accident would tend, in some degree, to establish the character of the animal in this regard.
In the case of Todd v. Inhabitants of Rowley, 8 Allen, 51, it appeared that the injury was received on the 11th day of June, 1861. One ground of defense was that the plaintiff was driving an unsafe horse, whose vicious habit of shying contributed to the injury; and the defendants, after introducing evidence tending to prove two instances of the horse’s shying before the time of the accident, were permitted to show many similar instances after-wards, up to March, 1863, about twenty-one months after the accident complained, of. As to the competency of this proof, the court, by Bigelow, C. J.,.says: “The objection to the evidence relating to the habits of the horse subsequent to the time of the accident goes to its weight rather than to its competency. The habit of the animal is in its nature a continuous fact to be shown by proof of successive acts of a similar kind. Evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident. Under the limitations prescribed at the trial, we think the evidence admissible.” Chamberlain v. Enfield, 43 N. H. 356.
In the case of Maggi v. Cutts, 23 Mass. 535, it appeals in evidence that, on the evening of November 19, 1815; at about half-past six o’clock, the plaintiff was riding in a wagon through Sewell street, which was about twenty-one feet wide, and there fell, or was thrown, from his wagon, and received the injuries for which he seeks to recover damages. That, for a few days previous to the accident, and upon said 19th day of November, the defendant, whose blacksmith shop was on Sewell street, had been making an excavation for a cellar under his building, and.had thrown the dirt, gravel and loam therefrom into the street, and, at the time above named, there was a pile of such gravel standing in the street, about two and a half feet high, extending ten feet along the street, and from a third to half the distance across the street, the exact dimensions of the pile being in dispute. The plaintiff introduced evidence to show that, not observing the obstacle and using due care, he had driven his horse upon the pile aforesaid so far that the forward wheels touched or went into it; that the horse had fallen upon the pile, and the plaintiff was thrown violently upon the ground; that the horse was helped upon his feet, and stood quietly until the plaintiff was put in the wagon. The plaintiff and his witnesses testified to the good character of the horse, but, on cross-examination, testified that the horse had shown signs of kicking, and that, on one occasion subsequent to the accident, the horse, which was then harnessed to a sleigh, whisked his tail, had gone round, had stopped moi’e than once, and that he found the horse had got his leg over the shaft. The defendant, as one mode of accounting for the accident, contended that the horse might have stumbled or fallen, or stopped suddenly without reference to the pile of dirt. Here is a case where the horse, at the time of the accident, was hitched to a wagon, but there was no evidence of any misconduct of the horse at the accident. There was evidence that the horse had shown signs of kicking, and had kicked once, about two years before the accident, and that, subsequent to the accident, when hitched to a sleigh, had shown signs of kicking, and was found with his leg over the shaft. Lord, J., in deciding the case, said: ‘‘The fact that a horse driven by the plaintiff misbehaved at the time an injury was received, though such misbehavior contributed to the injury, does not necessarily preclude the party from recovering. The misbehavior may have been accidental, or from causes for which the plaintiff was under no responsibility. The misbehavior, to bar the plaintiff from recovering, must be either through the fault of the plaintiff or by reason of a vice of the horse for which the plaintiff is in law responsible. Whether or not it is a vice depends largely upon the question whether the- misbehavior was only in a single instance or occasional, depending upon other causes, or whether it was the habit of the horse. And, in order to establish the fact that the misbehavior was occasioned by the viciousness of the horse, it has been held to be competent to show that such misbehavior is habitual, and instances of misbehavior, as well after the injury as before, have been held competent to prove the habit.”
Under these authorities and the principles they enunciate, the testimony of the witness Piatt seems to have been competent, though it may have been of little weight; and as to the competency of the two Goodales, there can be no doubt. The vicious habit of a horse is a continuous thing, and must be established by proving continued instances of a like kind and similar character.
3. Among other instructions to the jury the court gave the following: “The defendants, as such common carriers of passengers for hire, are not insurers of the life or personal safety of their passengers; but are bound to exercise the highest or greatest degree of precaution and care in every respect, in providing for the safety and safe transportation of their passengei’s while on their coaches.”
Objection is made to this instruction for the reason that the words “the highest and greatest degree of precaution and care in every respect,” were not so qualified and modified as to have informed the jury that the defendants were bound to exercise the highest and greatest degree of care and skill which prudent men are accustomed to use under similar circumstances. The instructions to a jury must be taken as a- whole, and must not contradict or be inconsistent with each other. There is no such thing as plaintiff’s or defendant’s instructions. The instructions proceed from the court, and ought to cover the whole case as made in the testimony. It is not expected that all of the law can be given in one instruction, and so the instructions must be considered as a whole; and if, when so considered, they cover the entire case, and no more, and make a harmonious whole not inapplicable or inconsistent with each other, that is sufficient.
Further along in the instructions the court defines to the jury what is meant by the expression “ the highest and greatest care,” or utmost care and prudence, and says: “The law imposes on the carriers of passengers for hire, the utmost prudence and care for the safety of passengers. By this expression is meant that they must exercise the prudence, skill and care of a prudent person engaged in the same pursuit. It does not mean that they must, at their peril, adopt every precaution which might by possibility prevent accident or injury, for that would be impracticable, and would impose obligations about things that could not be foreseen, and could not, therefore, be guarded against.”
Having explicitly defined to the jury the meaning of these words, it was not necessary, when they were used in other instructions, to go over the definition again.
In the case of Ryan v. Gilmer, 2 Mont. 522, we said: “ They (comnion carriers) were required to carry appellants from Watson to Helena as safely as human foresight and reasonable care would permit. Carriers of passengers for hire are bound to use the utmost care and diligence in providing safe, sufficient and suitable coaches, harness, horses and coachman, in order to prevent those injuries which human care and foresight can guard against. Ingalls v. Bills, 9 Met. 1. The proprietor of a stage coach covenants that he will insure the safe carriage of passengers, by the exercise of extraordinary diligence and care, and is responsible for any neglect. Fairchild v. California S. C. 13 Cal. 605. Out of special regard for human life, and acting upon the presumption that every man who commits his person to the charge of others expects from them a higher degree of care for his bodily safety than they would bestow upon the preservation of his property, the law very wisely exacts from the carrier of passengers for hire the utmost care and skill which prudent men are accustomed to use under similar circumstances.” Shearman & Red. on Neg. sec. 266, and cases there cited; Story on Bail. sec. 601; Ficker v. Jones, 28 Cal. 627; Wheaton v. A. B. & M. R. R. Co. id. 583; Stokes v. Saltonstall, 13 Pet. 181; The Nitro-Glycerine Cases, 15 Wall. 537; Angell on Carriers, secs. 521-524, 568, and cases cited; Whart. on Neg. sec. 627, n. 3; 2 Kent Com. 601, and notes; Hutchinson on Car. 498, 502; Ind. & St. Louis R. R. Co. v. Horst, 93 U. S. 291; Higley v. Gilmer et al. 3 Mont. 90; Boyce v. Cal. Stage Co. 25 Cal. 468.
The instructions in this case were fully up to the standard required in the foregoing cases, and were applicable to the case and not contradictory or inconsistent with each other.
4. Is the verdict supported by the evidence, and are the damages excessive?
In consequence of the accident and injury, the plaintiff lost his foot above the ankle, which is an irreparable injury and for life. But the physicians testify that his life is not likely to be thereby shortened, and the testimony is that his capacity for his occupation (that of bookkeeping) is not materially lessened in consequence of the injury.
The uncontradicted testimony as to the accident and the cause of it is as follows: “ On the 30th day of June, 1879, the plaintiff, who was a member of the territorial legislature, in company with six other members, and two or three other persons, took passage on one of defendants’ stage coaches, at the town of Deer Lodge, bound for the town of Helena. When within six or seven miles of their destination, and while the coach was proceeding on its way at a moderate rate of speed, there was met on the road a man on horseback, driving before him a pack animal, loaded with a camping outfit and a buffalo robe. When the man on horseback and the pack animal were first seen, they were within about three hundred yards of the coach. There were attached to the coach four horses, the leaders being the Buckskin horse and another. The leaders became frightened at the pack animal, but still approached towards it for a short distance, and then finally stopped. Then the leaders whirled around to the left, and in doing so broke the tongue of the coach and undertook to run away. While the horses were running fast, the passengers leaped from the coach, the plaintiff being the last to leave it, and in jumping and striking on the ground his leg was broken, and it became necessary to amputate his foot. The coach was not overturned, and the driver stopped the horses within fifty or seventy-five yards of where the accident occurred.”
In a civil case, an appellate court will not disturb the verdict of a jury, if there is evidence to support it, unless the same seems to have been the result of passion or prejudice.
In this case there is testimony to the effect that the driver, at the time of the accident, was drunk, and that the Buckskin horse was at the time unsafe and unfit for the business in which he was used. But the clear weight of the testimony strongly favors the claim of defendants, that the driver was entirely sober at the time of the accident; that he was one of the best stage drivers in the country, and that the Buckskin horse was thoroughly well broken and gentle, and suitable to be used on a stage coach. This being so, it looks as though the injury to the plaintiff ■ was the result of unavoidable accident, and that this large verdict comes from something outside of the testimony. The verdict is too large. We have been unable to find one so great even where the injury was the result of wilful negligence or gross carelessness.
In the case of The Union Pacific R. R. Co. v. Hand, 7 Kans. 393, the court says: “Of course, courts are reluctant to interfere with the verdicts of juries, on the ground of excessive damages; but to uphold them where a great wrong has been done, would, as a precedent, be doing an infinite wrong to the community. The rights of parties are submitted to the unbiased judgment of juries, not to their passions or prejudices, and where it is apparent that these feelings have entered into and influenced their decision, it becomes the duty of the court to see that a tribunal organized to administer justice is not perverted from its proper purpose to become the instrument of oppression and injustice.”
There is no pretense or claim that the injury was wilful, or that there was gross negligence, and if the case had been between two strangers unknown to the jury, and tried on this evidence, we feel confident that if there had been a verdict at all for the plaintiff, it would have been for a very much less sum. The injury to the plaintiff is permanent, but it does not endanger his health or shorten his life, or incapacitate him in his business. The evidence does not support this verdict. We cannot say that there is no evidence to support a verdict for such an amount as the plaintiff ought to recover, and this verdict and the judgment thereon ought to be reduced to that amount. The judgment is hereby reduced to the sum of $10,750, and affirmed as to that amount.
Judgment modified and affirmed..
|
[
0,
3,
35,
-20,
75,
-18,
26,
-2,
17,
-25,
-14,
-39,
-20,
-22,
-32,
-2,
-53,
-28,
-7,
-15,
-34,
-18,
2,
-71,
-3,
-27,
-17,
-46,
-37,
-32,
52,
48,
23,
30,
57,
30,
-11,
7,
-38,
-5,
43,
56,
20,
-2,
108,
76,
68,
9,
43,
-43,
40,
-47,
22,
-54,
-48,
-14,
45,
-31,
-21,
-1,
-1,
-57,
35,
-55,
-17,
-55,
14,
10,
-93,
58,
-20,
83,
8,
-15,
-58,
-13,
0,
-11,
39,
20,
8,
-6,
25,
-57,
-40,
24,
-1,
-19,
-13,
23,
-6,
7,
-10,
-2,
14,
29,
-16,
7,
-68,
21,
6,
1,
14,
-8,
-36,
-25,
-11,
-36,
-22,
17,
-74,
66,
16,
-57,
26,
-43,
-20,
-42,
7,
7,
52,
-31,
13,
-27,
-45,
-8,
27,
57,
-19,
57,
50,
-11,
-3,
83,
-1,
-7,
-33,
-49,
65,
-3,
43,
-6,
18,
-19,
3,
8,
28,
30,
-25,
-3,
-12,
24,
-2,
-24,
40,
-54,
-18,
83,
60,
15,
58,
0,
-3,
-39,
-6,
7,
-17,
-47,
47,
24,
0,
-3,
30,
-16,
40,
31,
-35,
10,
-8,
0,
15,
49,
10,
-32,
-8,
-68,
50,
0,
-89,
30,
96,
-59,
-23,
-38,
-14,
-54,
-16,
-77,
42,
8,
43,
-18,
-75,
19,
-13,
66,
5,
-26,
93,
63,
18,
-50,
-34,
-3,
2,
13,
36,
-31,
-21,
-58,
-23,
11,
9,
38,
18,
-36,
-25,
-48,
0,
5,
38,
18,
38,
16,
3,
-105,
-17,
-39,
-22,
-4,
20,
-62,
-16,
-51,
9,
-30,
-34,
-8,
-35,
51,
6,
-1,
-18,
-41,
-11,
39,
35,
-8,
-60,
-35,
-72,
12,
29,
45,
39,
-39,
-30,
21,
34,
-31,
14,
-10,
0,
-22,
-15,
-47,
50,
35,
59,
-1,
16,
-2,
-1,
17,
33,
-62,
-2,
-36,
-28,
-27,
-57,
-34,
65,
0,
-26,
38,
58,
87,
2,
-38,
23,
12,
57,
54,
14,
37,
-20,
17,
18,
-54,
-54,
-12,
-25,
-26,
30,
33,
25,
-13,
24,
-19,
-18,
-5,
-12,
-9,
-3,
15,
8,
-3,
19,
36,
33,
-29,
-23,
-55,
-30,
-12,
7,
-5,
27,
20,
7,
41,
2,
-33,
-20,
21,
41,
-79,
-10,
-15,
-72,
-46,
-27,
-54,
7,
30,
34,
-56,
36,
30,
37,
-22,
30,
-6,
57,
-83,
-19,
37,
24,
15,
62,
27,
9,
-54,
-3,
5,
-16,
49,
-17,
31,
-31,
16,
-3,
-30,
17,
13,
-52,
-68,
-49,
32,
2,
69,
57,
24,
16,
-22,
-71,
-1,
-24,
-15,
12,
35,
27,
-7,
30,
-64,
40,
-2,
-17,
-25,
-25,
-34,
44,
-25,
43,
-15,
-3,
13,
-44,
10,
69,
-7,
40,
-30,
46,
-43,
45,
-10,
-30,
-3,
32,
-30,
42,
61,
28,
-34,
9,
-6,
-17,
-11,
65,
3,
-38,
84,
-45,
-6,
22,
28,
29,
-36,
-10,
-40,
35,
20,
-9,
-2,
43,
43,
23,
72,
27,
-1,
9,
36,
25,
-21,
44,
-20,
27,
33,
-13,
0,
-38,
16,
-45,
-32,
-48,
-2,
-17,
37,
-91,
21,
-1,
3,
-8,
7,
13,
12,
15,
32,
-24,
3,
-97,
35,
-38,
37,
-29,
28,
17,
0,
-62,
30,
24,
1,
14,
42,
16,
-40,
30,
32,
17,
-11,
-6,
-51,
23,
8,
-79,
-3,
-19,
-53,
25,
23,
5,
-76,
-20,
-9,
67,
-35,
27,
-32,
-8,
-44,
-13,
-27,
-13,
-36,
56,
0,
15,
-36,
11,
-6,
51,
-104,
66,
-7,
14,
0,
70,
29,
64,
50,
60,
-78,
-7,
-6,
-37,
-30,
-29,
7,
31,
11,
-83,
-50,
36,
79,
53,
35,
39,
-63,
-20,
7,
21,
-15,
-50,
23,
-10,
1,
-39,
-39,
-22,
-24,
-18,
-7,
1,
5,
9,
16,
-27,
81,
31,
19,
4,
38,
62,
71,
3,
11,
23,
37,
4,
-53,
17,
60,
39,
50,
-106,
-39,
7,
55,
30,
-5,
-35,
-13,
-32,
-2,
7,
-13,
37,
13,
-55,
-51,
-19,
72,
-10,
-32,
-1,
-9,
-30,
-74,
-59,
23,
-61,
48,
-60,
42,
6,
54,
7,
-24,
-7,
-4,
38,
-21,
-11,
17,
-60,
21,
1,
-33,
-39,
-7,
0,
-21,
4,
39,
-16,
27,
-61,
35,
-40,
-16,
-46,
38,
-37,
-24,
-36,
-47,
-38,
-40,
22,
-82,
15,
-14,
8,
-76,
-47,
36,
-19,
-5,
68,
28,
70,
-45,
2,
3,
-39,
50,
19,
7,
-27,
-22,
-33,
31,
19,
22,
10,
-65,
-38,
-18,
0,
-85,
-13,
30,
45,
-1,
-33,
-8,
-41,
-6,
32,
30,
0,
-68,
51,
-25,
-19,
10,
-63,
17,
25,
1,
87,
2,
12,
-19,
47,
13,
8,
0,
35,
58,
-30,
-26,
24,
-23,
-29,
-17,
-34,
-77,
23,
-4,
45,
9,
16,
-18,
-24,
8,
32,
-37,
64,
4,
-5,
16,
31,
-66,
-22,
21,
-11,
-84,
42,
21,
48,
6,
-41,
82,
4,
-11,
39,
8,
34,
39,
-22,
-30,
9,
44,
34,
4,
1,
21,
-39,
-12,
-13,
30,
6,
35,
3,
-38,
47,
-31,
43,
-21,
-9,
-1,
-113,
-71,
14,
16,
-18,
-30,
-8,
-4,
-85,
58,
-27,
-31,
63,
-39,
-5,
23,
-30,
26,
-41,
-2,
-1,
-4,
7,
-11,
-12,
1,
-16,
16,
6,
56,
30,
-17,
-44,
-29,
20,
-16,
22,
-53,
7,
18,
10,
0,
72,
-2,
-58,
15,
50,
45,
-13,
31,
73,
-82,
1,
-2,
-29,
-38,
-63,
18,
0,
-25,
-76,
-28,
20,
-75,
18,
0,
-92,
-35,
-13,
-42,
-41,
27,
29,
-26,
-54,
14,
60,
72,
-19,
38,
36,
19,
72,
-16,
44,
24,
-36,
-69,
-36,
65,
-44,
19,
-10,
-1,
-9,
6,
-1,
-25,
-3,
-52,
25,
-24,
-7,
61,
86,
1,
-26,
35,
-15,
13,
-43,
-77,
-16,
-88,
-31,
28,
28,
6,
-32,
-43,
32,
2,
-16,
127,
32,
34,
69,
-57,
19,
10,
-12,
72,
22,
22,
25,
70,
-59,
38,
-52,
-8,
-23,
-1,
41,
-24,
-18,
-10,
53,
28,
30,
43,
21,
-46,
-3,
-7,
15,
63,
21,
44,
23,
51,
6,
6,
-54,
10,
56,
-22,
30,
-12,
44,
-12,
-12,
15,
18,
-65,
21,
30,
-35,
-9,
13,
-56,
31,
4,
24,
-39,
-13,
1,
12,
-4,
-41,
16,
10,
-13,
-28,
-17,
-23,
66,
-40,
48,
-52,
-35,
15,
-37,
-37,
12,
-53,
-55,
-52,
-51,
-39,
24,
-14,
-10,
15,
72,
25,
-3,
21,
64,
-6,
36,
-38,
58,
-14,
-18,
-15,
-37,
37,
41,
80,
2
] |
Wade, 0. J.
The district court, sitting as a court of chancery, has jurisdiction in all cases of divorce and alimony, and the like process, practice and rule of proceedings obtains as in other chancery cases. Upon a hearing the court has the power to decree a dissolution of the bonds of matrimony, upon proof of any one of. the causes mentioned in the statute. B. S. pp. 513, 514, secs. 508, 514.
The only departux’e fx’om the chancery practice and i’ule of proceeding upon the trial is that, if the defendant appears and denies the charges alleged in the complainant’s bill, the same shall be tried by a jury. B. S. p. 514, sec. 511. But the jury only tries the issue fox’med by the defendant’s denial of the chax'ge upon which the complainant asks for a divorce.
The court, sitting as chancellor’, is alone responsible for the decree as to alimony and the custody of the children. He may refer special issues to the jury to make findings as to these matters, but he is not bound by them, and he may set them aside, make other findings, and decree accordingly.
The complainant, in her bill, among other things, charges: “That the defendant John H. Black, on or about the loth day of September, A. D. 1881, at the county of Gallatin aforesaid, used to, of and concerning plaintiff, vile and abusive epithets, and then and there, without any just or reasonable cause, cursed plaintiff and accused her of being an unchaste woman, and also did then and there threaten the life of plaintiff.
“That said defendant, on or about the 28th day of December, A. D. 1881, at the county of Gallatin aforesaid, without provocation or justification, struck, beat, kicked and wounded the plaintiff, and also, then and there, choked plaintiff, and other wrongs and injuries then and there did to plaintiff; and further, that on the 7th day of January, A. D. 1882, in the county of Gallatin aforesaid, the said defendant kicked plaintiff out of the house where the plaintiff and defendant were then residing, and then and there' drove plaintiff from his house, and then and there rudely, forcibly and violently wrested plaintiff’s child from her arms, and refuses to return said child to the care or custody of plaintiff.
“ Plaintiff further alleges that she is now, and for several months last past has been, in delicate health, and that she is now pregnant with child by her said husband; that she is in destitute circumstances, and has no means of support.”
In a divorce case, as in any other, the proof must be authorized by the allegation. But in this record there is no evidence, and hence no question can arise thereon. The instructions to the jury are presumed to be based upon and applicable to the testimony until the contrary appearsv If, under any possible state of circumstances, the instruction might have been based upon competent evidence, the court will presume that such evidence was given. If, under any possible state of circumstances and evidence upon the issue joined, the instruction might have been proper, the court will presume that such evidence was produced upon the trial.
In this case, the defendant having denied the charge contained in the complainant’s bill, a jury came, and special issues were submitted. After the conclusion of the testimony, the court instructed the jury, among other things, as follows: “The first duty of the jury will be to consider and determine if the charge of extreme cruelty, made in plaintiff’s complaint against the defendant John H. Black, is sustained by the preponderance of the evidence; and if you should find that defendant John H. Black has not been guilty of extreme cruelty, then you need not consider the case further.”
The instruction limited and confined the consideration of the jury to the evidence of extreme cruelty as alleged and charged in the complaint.
Thereafter the jury returned into court, among others, the following special finding: “ First. Has the defendant John IT. Black been guilty of extreme cruelty towai'ds the plaixitiff, Alice B. Black ? Answer’. Tes.
“Frank Hill, Foreman.”
Under this instruction the finding must be interpreted to mean that the jury found the defendant guilty of extreme cruelty towards the complainant, as charged in the complaint. Proof of acts of cruelty not alleged in the complaint would have been incompetent, and there are no suspicions or conjectures contained in the record, or argument of counsel to the contrary, showing those based upon the giving of the following instruction: “ There is no allegation in the complaint of cruelty towards th'e plaintiff on the part of David or Samuel Black, yet from all the facts and circumstances in evidence before you, the jury may consider whether the taking' of plaintiff as his wife, to reside under the same roof and in one family with David and Samuel Black, constituted extreme cruelty or not.”
The testimony is not before us. What state of facts called forth this instruction we are not informed. If David Black, a brother of John H. Black, the husband, had entered into a conspiracy to defraud the respondent of her separate property, as charged in the complainant’s bill, and if the alleged acts of cruelty by the husband were parts of such conspiracy, and if taking the wife to reside under the roof of one of the conspirators was for the purposes of the cruelty alleged, then such taking was a part of the cruelty charged, and the instruction was proper. The jury were instructed to consider such taking of the wife to the house of the brothers of the husband “under all the facts and circumstances in evidence.” What those facts and circumstances were we do not know, but as they might have been such as to render the instruction legitimate and proper, in the absence of the testimony we must presume that the instruction was based upon the evidence, until the contrary appears.
2. The question of alimony was for the judge sitting as chancellor. As to this part of the decree the chancellor is alone responsible. He may, as he did, submit special issues to the jury as to the property of the defendant, but he may entirely disregard the findings of the jury and make those of his own and decree accordingly.
In arriving at the amount of the alimony to be allowed the wife, it was legitimate and proper to ascertain the amount of her separate property that had passed into the hands of the husband or others for his use; and if, as found by the chancellor, the defendant David P. Black received of the complainant’s separate estate and converted to his own use, and for which he had in no wise accounted, the sum in value of $680, it was competent for the court to decree the payment of this sum to complainant as part of her alimony.
Whether this finding was based upon the testimony in support of the allegation of a conspiracy by her husband and said David P. Black to defraud the complainant or not, yet if the said David P. Black had received and converted to his own use the separate property of the complainant after a decree of divorce, and her husband having no interest in the property, he who had thus converted the property ought to be compelled to pay its value to its rightful owner. But this is not one of the claims or demands upon which, under our statute, interest can be computed, unless there is an averment in the complaint that the money has been withheld by reason of vexatious delay.
3. In a case of this kind the costs are within the discretion of the court. The defendants answered. jointly and made a joint defense. David P. Black, one of the defendants, joined with the husband in denying the charges contained in the complainant’s bill, and contested her right to a divorce and to alimony. The answer of David P. Black, no less than that of her husband, made it necessary for the complainant to employ counsel. If a defendant voluntarily joins with the husband in contesting the wife’s right to a divorce, and thereby compels the wife to employ counsel, and a decree of divorce is obtained, he ought to be jointly liable for the attorneys’ fees that he makes necessary by reason of his own act. There is sufficient in the record to show that David P. Black was the active party in attempting to defeat a divorce, and apparently for the reason that he had converted property of the wife to his own use, which, if he could defeat the divorce, he might not be compelled to account for. If one unnecessarily intrudes himself into a divorce case, and contests a wife’s right to a divorce, for purposes of his own, and a divorce is granted notwithstanding, he ought to be compelled to pay the expenses consequent upon such intrusion.
The decree is so modified that the sum of $680 ordered and adjudged to be paid by David P. Black to complainant shall not bear interest until the date of the rendition of said decree, and when so modified the decree is in all respects confirmed.
Judgment modified and affirmed.
|
[
-51,
-21,
17,
33,
-11,
-10,
0,
13,
7,
-54,
-34,
-45,
-18,
9,
-1,
17,
-41,
-48,
34,
-42,
4,
35,
7,
-3,
74,
66,
9,
-31,
1,
-78,
12,
-12,
-76,
69,
-21,
-22,
57,
-6,
19,
29,
0,
6,
-21,
20,
-15,
43,
10,
-40,
-29,
-8,
-22,
-66,
-17,
-9,
-34,
-42,
-22,
43,
27,
-24,
-23,
12,
-34,
-20,
0,
-8,
35,
-28,
0,
-60,
39,
-15,
21,
-1,
-24,
-58,
-7,
-67,
-6,
31,
52,
-36,
-11,
31,
12,
-36,
-3,
73,
-63,
15,
-8,
65,
-40,
-5,
20,
-55,
32,
31,
49,
86,
-1,
13,
7,
-3,
-26,
28,
23,
-21,
28,
10,
97,
-9,
31,
1,
-44,
5,
-17,
-92,
20,
-17,
48,
0,
30,
-12,
19,
78,
-47,
26,
88,
-25,
-33,
-12,
-14,
-45,
24,
-75,
6,
-40,
-52,
30,
32,
-77,
43,
32,
28,
-11,
-14,
12,
-35,
19,
0,
34,
39,
-16,
62,
-62,
6,
-9,
26,
-49,
55,
-17,
-71,
-7,
-12,
-46,
-48,
41,
2,
4,
-19,
2,
-13,
61,
-40,
-24,
-14,
-63,
-9,
2,
22,
47,
-17,
-31,
67,
29,
-11,
-7,
-47,
24,
16,
26,
-23,
0,
75,
0,
18,
-23,
-18,
-7,
-13,
-31,
-27,
-13,
14,
32,
3,
-13,
20,
8,
-60,
36,
-2,
22,
-6,
-21,
39,
-20,
-43,
3,
41,
5,
33,
43,
-108,
-89,
9,
-58,
33,
24,
39,
-33,
-18,
-40,
4,
-16,
0,
-42,
17,
66,
-8,
23,
3,
6,
-1,
0,
-48,
47,
-71,
-19,
-9,
24,
-18,
71,
32,
15,
-32,
-7,
-71,
-27,
-13,
13,
-46,
-39,
-32,
32,
23,
-41,
33,
-24,
9,
-21,
88,
0,
83,
22,
-11,
44,
-55,
36,
-46,
37,
7,
22,
17,
-5,
-21,
5,
13,
-22,
-51,
-28,
-23,
-11,
18,
71,
-31,
47,
31,
-23,
27,
-14,
31,
32,
-86,
-41,
-12,
-32,
-32,
-27,
-22,
40,
18,
-56,
26,
50,
30,
5,
31,
-38,
52,
-28,
-18,
-32,
-23,
46,
6,
-3,
-25,
65,
11,
6,
51,
-18,
4,
-34,
-50,
18,
41,
-5,
19,
-63,
45,
19,
73,
-27,
21,
-22,
-3,
2,
-82,
-28,
-52,
-31,
-40,
-40,
-27,
-78,
16,
-52,
-36,
1,
10,
-65,
19,
4,
7,
-23,
32,
14,
59,
-44,
6,
-34,
-1,
-4,
-9,
18,
39,
23,
-63,
11,
-1,
20,
74,
57,
-31,
-30,
-16,
-11,
35,
36,
21,
-3,
9,
75,
-7,
-10,
-27,
17,
-8,
26,
-55,
8,
-29,
36,
21,
-56,
-39,
4,
41,
-41,
11,
-6,
43,
50,
-52,
14,
-53,
52,
9,
-8,
14,
-18,
-65,
22,
-27,
-29,
16,
-51,
17,
70,
-2,
67,
55,
-13,
-7,
4,
12,
74,
-5,
-17,
75,
14,
-12,
26,
1,
43,
42,
63,
2,
13,
-5,
-21,
31,
-1,
-7,
62,
-48,
21,
99,
20,
18,
34,
27,
-47,
-56,
7,
-40,
44,
-29,
-44,
-17,
36,
15,
27,
-42,
16,
20,
-34,
-41,
11,
-29,
77,
-22,
3,
-17,
-40,
48,
-13,
-91,
-12,
-41,
37,
-34,
-34,
-12,
16,
-32,
13,
16,
27,
-42,
-41,
16,
75,
22,
21,
-16,
44,
16,
11,
107,
2,
66,
36,
-4,
20,
1,
-28,
-8,
-38,
-59,
-27,
-41,
-34,
-5,
5,
-19,
-35,
-28,
55,
-71,
28,
17,
60,
-40,
25,
57,
-37,
-21,
13,
37,
6,
29,
44,
-47,
-31,
-9,
-9,
2,
-51,
81,
-24,
54,
10,
0,
-1,
30,
-9,
76,
-4,
-70,
-41,
-24,
28,
-7,
-61,
-50,
5,
-31,
14,
-20,
12,
-5,
-34,
-8,
12,
2,
-57,
23,
-2,
15,
-49,
40,
-43,
23,
-1,
61,
34,
20,
0,
6,
27,
16,
-74,
42,
-2,
33,
60,
-10,
-19,
38,
7,
-22,
49,
-18,
23,
-17,
-15,
-3,
-50,
-17,
-19,
4,
9,
-27,
3,
-14,
10,
-1,
-5,
38,
-55,
51,
-7,
-2,
-13,
-11,
-21,
-17,
-4,
55,
44,
-33,
55,
-44,
15,
26,
-15,
-12,
27,
3,
17,
-3,
41,
-41,
-46,
15,
-55,
6,
26,
-28,
4,
97,
-39,
24,
-42,
39,
-1,
9,
-42,
-1,
40,
3,
2,
20,
45,
-43,
19,
16,
-16,
22,
88,
2,
29,
-62,
-5,
5,
-31,
-4,
1,
-32,
30,
0,
-44,
44,
25,
-13,
-64,
18,
-84,
-8,
13,
2,
14,
-18,
11,
-39,
44,
43,
-40,
14,
-39,
-5,
17,
8,
-23,
-30,
-27,
-41,
42,
-29,
-8,
-13,
-54,
58,
-41,
-15,
7,
-41,
18,
-7,
-8,
-14,
-37,
22,
47,
17,
-17,
89,
34,
-55,
73,
-60,
51,
-2,
11,
-36,
22,
31,
5,
-5,
5,
-7,
11,
-21,
-38,
8,
-7,
75,
17,
14,
-56,
-38,
-54,
35,
-46,
-7,
8,
-3,
64,
-5,
-38,
-48,
-14,
-7,
5,
1,
0,
2,
-23,
33,
-29,
-26,
10,
-21,
-52,
-59,
-47,
84,
-25,
19,
-8,
45,
-49,
70,
-14,
31,
10,
48,
-30,
0,
-8,
25,
-59,
-40,
-50,
-12,
-12,
23,
103,
-25,
38,
39,
62,
9,
35,
-4,
66,
3,
4,
10,
19,
-17,
40,
-65,
-3,
-9,
-22,
27,
-13,
7,
-23,
-15,
21,
-21,
-4,
-45,
-9,
53,
-62,
72,
-20,
12,
-45,
44,
7,
-3,
10,
20,
-24,
-44,
-18,
5,
17,
52,
-35,
21,
-13,
3,
37,
-45,
-15,
-50,
-66,
50,
51,
-12,
30,
2,
1,
3,
-54,
-22,
5,
18,
-6,
16,
-1,
4,
-7,
-32,
-8,
28,
35,
64,
-23,
-25,
43,
8,
-78,
-55,
29,
-21,
32,
34,
-13,
-91,
6,
0,
-9,
46,
38,
-10,
20,
-37,
-34,
-21,
-87,
-3,
10,
13,
-13,
55,
-34,
-50,
80,
-5,
-21,
36,
13,
-52,
44,
27,
37,
24,
-16,
19,
6,
35,
-29,
23,
2,
-16,
-17,
-8,
-21,
8,
84,
10,
-13,
-18,
-74,
10,
2,
-84,
30,
-31,
-2,
-38,
12,
35,
-25,
44,
52,
1,
4,
21,
-11,
-101,
60,
31,
36,
-38,
37,
8,
-17,
53,
15,
-37,
22,
-7,
-40,
16,
15,
9,
27,
9,
-44,
8,
-1,
0,
-18,
-20,
33,
9,
8,
58,
2,
-27,
-30,
41,
14,
-29,
9,
-24,
-33,
20,
0,
32,
-36,
-31,
20,
-53,
41,
45,
-72,
2,
-21,
-36,
18,
-6,
-4,
1,
-39,
10,
34,
16,
21,
9,
-10,
30,
10,
-14,
39,
-48,
-22,
12,
-65,
-22,
8,
17,
17
] |
Galbraith, J.
This case comes before us on a motion to dismiss the appfeal from an order overruling a motion for a new trial.
The record shows that the motion for a new trial was overruled on the 26th of June, 1883, but the statement in the motion was not settled by the judge until the 13th of July next succeeding, and not filed by the clerk until the 26th of the same month. Consequently, at the time of the disposition of the motion for a new trial, the statement was not before the court. There was, therefore, no assignment of error, and nothing brought to the attention of the court authorizing the granting of said motion.
The burden is upon the party making a motion for a new trial to specify the errors upon which he asks a reversal of the judgment. This the appellant failed to do, and this court will review only such matters as were brought up for consideration in the court below.
The appeal is dismissed.
Dismissed.
|
[
-27,
-60,
25,
6,
67,
-59,
85,
-32,
0,
27,
-5,
-9,
-35,
-33,
15,
28,
-46,
-49,
44,
-19,
92,
-41,
-31,
-54,
3,
-2,
-26,
-5,
14,
11,
64,
18,
-54,
48,
0,
-16,
21,
-15,
6,
-53,
54,
8,
0,
-7,
-19,
-14,
-37,
-14,
-13,
-35,
32,
-54,
-56,
16,
-88,
16,
-36,
-17,
-7,
62,
17,
20,
-35,
-52,
-25,
2,
36,
-15,
-46,
-27,
-51,
-14,
44,
-19,
-54,
-22,
-86,
-18,
-15,
-7,
7,
25,
41,
14,
11,
0,
72,
22,
-21,
27,
6,
-26,
-32,
-15,
-17,
25,
11,
-45,
-18,
-3,
10,
39,
25,
46,
34,
-39,
-76,
7,
37,
-18,
67,
91,
-42,
-21,
51,
-38,
3,
25,
-19,
-7,
0,
56,
102,
76,
-49,
7,
-28,
24,
65,
9,
-71,
-48,
-29,
11,
13,
-24,
62,
41,
1,
-11,
-22,
-87,
10,
-36,
-11,
23,
-2,
-20,
-36,
-10,
-10,
-20,
3,
25,
4,
-37,
-19,
10,
22,
3,
-10,
33,
17,
2,
16,
38,
-60,
-29,
-28,
3,
-21,
19,
0,
-2,
-28,
48,
-53,
-56,
42,
9,
1,
51,
23,
-42,
48,
-20,
32,
11,
46,
-5,
-39,
41,
-51,
32,
34,
0,
-15,
-8,
80,
19,
-24,
-3,
-7,
20,
-23,
54,
-12,
-29,
15,
4,
-49,
-33,
-46,
7,
-3,
15,
-5,
-6,
-1,
33,
-15,
35,
25,
21,
-22,
30,
-5,
50,
-41,
74,
-20,
10,
-50,
-3,
21,
-24,
-23,
34,
10,
-54,
-13,
35,
40,
-42,
9,
31,
31,
14,
17,
-16,
60,
47,
23,
-33,
-23,
-23,
56,
6,
-84,
-48,
9,
67,
3,
-17,
-24,
24,
45,
-26,
67,
32,
3,
-59,
2,
43,
27,
-14,
-6,
10,
70,
112,
-59,
-9,
17,
-15,
-5,
-44,
23,
18,
3,
18,
-38,
8,
39,
41,
-25,
10,
-30,
51,
-54,
31,
-18,
-14,
15,
-3,
0,
12,
-7,
-26,
-8,
-27,
-60,
49,
18,
2,
-5,
-27,
16,
8,
86,
-38,
-24,
-27,
-17,
46,
-30,
-9,
14,
-11,
-53,
30,
29,
-22,
17,
21,
-53,
-30,
33,
24,
24,
-18,
54,
20,
8,
-57,
-23,
2,
51,
-25,
0,
29,
-56,
32,
-22,
-22,
23,
37,
-10,
-64,
27,
19,
21,
-21,
67,
-17,
32,
33,
-45,
38,
17,
21,
4,
0,
-46,
-119,
23,
18,
16,
-38,
31,
15,
8,
12,
-13,
11,
3,
40,
-13,
0,
3,
45,
8,
32,
-38,
-50,
-20,
14,
51,
-18,
-12,
-44,
103,
10,
-15,
-48,
-7,
18,
-55,
24,
-12,
12,
0,
-1,
11,
15,
-11,
-47,
-35,
-6,
1,
-40,
-16,
-6,
41,
-8,
-47,
27,
11,
-76,
7,
-54,
-8,
35,
-37,
-18,
-3,
70,
4,
-12,
81,
31,
-5,
17,
-43,
62,
-16,
21,
-7,
53,
16,
18,
24,
-43,
28,
-41,
44,
-19,
15,
57,
-31,
13,
58,
-51,
-9,
4,
-48,
-28,
-15,
-39,
5,
52,
-31,
-25,
58,
-29,
-34,
56,
54,
10,
1,
22,
-7,
53,
11,
36,
-36,
33,
6,
-47,
-6,
26,
-20,
-9,
-4,
51,
-56,
-38,
-84,
-11,
-34,
13,
-47,
37,
-26,
27,
25,
0,
13,
-90,
9,
35,
-2,
-24,
49,
-23,
11,
-32,
40,
18,
16,
21,
82,
-2,
-31,
0,
-26,
-61,
-39,
-7,
34,
14,
66,
-26,
21,
4,
-75,
27,
-21,
18,
41,
12,
-15,
13,
-21,
-5,
-55,
52,
-50,
9,
-1,
-4,
-2,
-8,
27,
39,
-63,
-11,
2,
25,
6,
-54,
44,
-1,
-13,
5,
32,
-24,
19,
0,
18,
-60,
64,
15,
-27,
53,
-35,
-21,
57,
0,
39,
-39,
-48,
33,
53,
-38,
-8,
-2,
-21,
22,
-28,
41,
-56,
25,
28,
-44,
-42,
29,
-10,
4,
30,
40,
-19,
8,
-53,
63,
-12,
8,
58,
-57,
39,
-27,
63,
-36,
-24,
35,
-41,
-18,
-11,
59,
-6,
4,
-1,
22,
-20,
1,
-14,
-8,
-19,
1,
-42,
-5,
-6,
5,
51,
6,
-55,
79,
-41,
0,
58,
-56,
43,
6,
31,
-43,
-5,
-7,
-6,
-34,
21,
21,
42,
51,
-27,
11,
-16,
4,
44,
-5,
13,
-6,
0,
-9,
-19,
-14,
17,
41,
-34,
15,
-41,
-28,
-26,
0,
27,
-38,
-2,
3,
16,
-32,
-26,
-89,
22,
-14,
23,
-56,
-28,
-25,
-52,
20,
-12,
19,
9,
-4,
-17,
40,
31,
37,
18,
21,
9,
9,
35,
-41,
61,
54,
-62,
0,
-28,
35,
0,
-67,
-13,
58,
8,
-13,
63,
-32,
29,
24,
2,
-24,
18,
34,
12,
53,
-4,
-27,
-30,
-29,
86,
-49,
0,
-48,
12,
-3,
-35,
-7,
18,
40,
-39,
46,
-43,
-48,
-13,
-30,
-12,
-7,
48,
-50,
-1,
-30,
49,
-57,
-11,
-30,
-68,
15,
27,
-37,
-31,
47,
33,
14,
-9,
-19,
-16,
37,
20,
-31,
-29,
41,
6,
0,
15,
15,
-55,
40,
32,
7,
15,
-4,
33,
10,
37,
10,
55,
10,
13,
-7,
-61,
27,
-6,
11,
-21,
51,
24,
-21,
-8,
-8,
-48,
23,
-9,
-23,
-29,
35,
-34,
28,
32,
20,
11,
1,
-21,
8,
-1,
10,
38,
-92,
22,
-20,
40,
-44,
-29,
87,
45,
37,
43,
-27,
7,
3,
-29,
23,
-15,
12,
-12,
-12,
-25,
-42,
6,
16,
-32,
-5,
-73,
-19,
-50,
56,
26,
18,
5,
45,
-59,
-6,
18,
24,
-5,
-29,
-93,
23,
24,
-102,
34,
27,
-23,
24,
-21,
-44,
11,
21,
-51,
-10,
-55,
-28,
1,
-41,
-17,
32,
13,
8,
-21,
-28,
34,
79,
-1,
-27,
-11,
15,
-56,
-42,
-34,
-49,
0,
-12,
-38,
36,
43,
70,
18,
55,
13,
-15,
44,
47,
-5,
74,
-3,
-53,
-44,
18,
32,
0,
59,
15,
-17,
43,
33,
-53,
41,
15,
-34,
-78,
65,
-46,
18,
14,
-5,
-13,
20,
-16,
-22,
-4,
-44,
-4,
-7,
-3,
5,
-9,
-11,
-15,
4,
-48,
-47,
8,
-28,
-2,
12,
-23,
17,
-93,
-22,
-8,
5,
1,
-32,
-83,
-51,
5,
-27,
32,
-16,
-16,
34,
-12,
-3,
4,
-33,
-31,
4,
-22,
24,
-12,
39,
-6,
-26,
-21,
79,
-30,
-22,
-31,
24,
-52,
-17,
3,
44,
3,
-24,
-7,
0,
17,
-18,
-27,
29,
12,
9,
33,
1,
-25,
-30,
-3,
6,
26,
37,
20,
-50,
-26,
41,
9,
21,
-50,
-26,
66,
-62,
-14,
53,
64,
-9,
36,
-64,
-26,
-2,
23,
-11,
-12,
31,
24,
-12,
20
] |
Galbraith, J.
This is an appeal from a judgment rendered by the court of the first judicial district, affirming the judgment of the probate court of Gallatin county, whereby a penalty of $50 was imposed upon the appellant for the violation of an act “ to provide for licensing commercial travelers,” approved July 22,1819, and hereafter given. In this case, the following facts were agreed upon:
1. That the defendant was, at the time alleged in the complaint herein, a commercial traveler engaged at Livingston, Gallatin county, Montana, in conducting his said vocation, as follows, and not otherwise.
2. That Auerbach, Finch & Van Slick are a mercantile firm, resident at St. Pau1, in the state of Minnesota, engaged there in the sale of goods, wares and merchandise, where each member of said firm resides, each being a citizen of the United States, and also of the said state of Minnesota.
3. That the goods belonging to said firm for sale are at said St. Paul, and were at said St. Paul at the time of the commission by the defendant of the acts herein found to have been committed.
1 4. That the defendant was then, and ever since hath been, a citizen of the United States, and a resident of the state of Wisconsin, and a citizen thereof.
5. That as a commercial traveler for said Auerbach, Finch & Van Slick, with samples of their goods aforesaid, in said St. Paul, said defendant, on the-day of May, 1883, came to Livingston in said Gallatin county, where he did exhibit said samples of said goods, and did represent and affirm them to be fair samples of the goods then owned and possessed in said St. Paul by said Auerbach, Finch & Van Slick, and which said goods then were there, to wit, at said St. Paul, and there had for sale; and did then and there, to wit, at Livingston aforesaid, on the date aforesaid, solicit of one John Doe, then and there being a merchant, that he give to said defendant an order for divers and sundry of the said goods, wares and merchandise of said Auerbach, Finch & Van Slick, then being at St. Paul as aforesaid, and did then and there obtain such order, and did then and there agree that the said defendant would forward the said order to the said Auerbach, Finch & Van Slick, and that if said order should be accepted by said Auerbach, Finch & Van Slick, said goods, in said order mentioned, would be delivered to said John Doe at the warehouse of H. P. R. Co., at St. Paul, to be shipped to said John Doe, at Livingston aforesaid; and that said Auerbach, Finch & Van Slick were at liberty to reject or accept the order.
6. That none of said goods were then and there delivered at Livingston aforesaid; nor was it the agreement or understanding that the same were to be then and there delivered, but it was agreed that the said order was to be by said defendant forwarded from said Livingston to said St. Paul as aforesaid, when and where the said goods were to be shipped from Minnesota to Montana as aforesaid.
Y. That the defendant, as aforesaid, was the instrumentality by which Auerbach, Finch & Van Slick consummated as well as inaugurated the transaction aforesaid, by means whereof they obtained said order for the sale of their goods, should they accept said order and sell said goods.
8. That for the foregoing business the defendant did not at first, or at all, obtain a license from the treasurer of Grallatin county.
It is claimed that the above facts “do not bring the defendant within the purview or provisions of the foregoing act.” This act, or so much thereof as it is necessary to quote, is as follows: “ Every commercial traveler, agent, drummer or other person, selling, or offering to sell, any goods, wares or merchandise of any kind, to be delivered at some future time, or carrying samples and selling or offering to sell goods, wares and merchandise of any kind similar to said samples, to be delivered at some future time, shall, before carrying on such business, pay a license therefor of $25 in each county where such business may be transacted. Such payment shall be made to, and such license issued by, the county treasurer, and the license so issued shall authorize the person named therein to carry on said business of a commercial traveler in said county for the period of three months from the date thereof. And it is hereby made the duty of every justice of the peace, constable, sheriff, and all peace officers, to demand the license of any such commercial traveler, drummer, agent,. or other person, who has sold, or is offering to sell, goods, wares or merchandise in his county, and if such person be found not to have a license as required by this act, or if, upon demand made by any such officer, he shall not exhibit the same, the person so offending shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than $50 nor more than $100, in the discretion of the court.”
The agreed statement of facts, stripped of its verbiage and condensed into a form sufficiently comprehensive to present the question raised, is in substance as follows:
B. is engaged in the sale of merchandise. A. is a commercial traveler, carrying samples of B.’s merchandise, and his agent to solicit orders for his goods. A. exhibits the samples to, and solicits and obtains an order for goods of the same character as the samples from C. This constitutes an offer by A. to sell the goods.
The above state of facts must have this signification, if agency, acts and words have any meaning. It is not necessary, in order that the offer to sell should be within the provision of the statute, that the goods should be the property of A. It is sufficient if the offer be to sell any goods, wares or merchandise. We are, therefore, of the opinion that the facts stated bring the appellant within the meaning of the above statute.
The transcript shows that this case was commenced in the probate court in Gallatin county, which had jurisdiction thereof, upon a complaint filed therein. This is in accordance with the laws of this territory. “Prosecutions in the probate court, or justice of the peace courts, shall be by complaint.” Sec. 5, 3d div. Grim. Prac. E. S. 288. This is a bare misdemeanor; it is not “a capital, or otherwise infamous crime,” as mentioned in section 5 of the amendments to the constitution of the United States. A presentment or indictment by a grand jury was, therefore, not required.
The principal question, however, presented is whether or not this act is in conflict with the constitution of the United States.
It is contended: First — That this act is in conflict with that clause in the constitution which provides that “the citizens of each state shall be entitled to'all the privileges and immunities of the citizens of the several states.” And also with those provisions thereof which provide that congress shall have power “to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” And that “no state shall, without the consent of congress, lay any impost or duties on imports and exports, except what may be absolutely necessary for exercising its inspection laws.”
The presumption is always in favor of the validity of an act of the legislature, and the burden is upon the party claiming that it is otherwise, to show that it is so, clearly and satisfactorily. An act should not be adjudged unconstitutional except where it is plainly repugnant to the fundamental law. In a case of this kind, it is Only with the power of the legislature viewed in relation to the fundamental law, and not with the expediency or propriety of its legislation, that the court has to do. These are matters for the consideration of the legislature itself, when it enacts the law.
We do not think that the act is in conflict with the first clause of the constitution above quoted, as it does not discriminate against the citizens of other states and territories. We can see no reason why this territory cannot subject all persons who come within its jurisdiction, although citizens of other states and territories, for the purpose of engaging in the kind of business mentioned in the act, to the same conditions as to payment of a license tax therefor as are imposed upon its own citizens. The act requires the payment of a license for the purchase of a privilege to . do the kind of business mentioned therein, just as in the case of licenses required by law to be purchased for the privilege of pursuing a particular trade, profession or occupation. The act is not obnoxious to the objection that it is discriminating, for its provisions apply to all persons pursuing the occupation mentioned therein alike, whether citizens of other states and territories or of the territory of Montana; and to the goods, wares and merchandise of this territory as well as those of foreign production and manufacture. The act does not, therefore, come within the purview of the decision of the supreme court of the United States, in Wood v. Maryland, 12 Wall. 418, where it was held that a statute of the state of Maryland was unconstitutional as discriminating against the citizens of other states, which “made it a penal offense in every person, not being a permanent resident in the state, to sell, offer for sale, or expose for sale, within certain limits in the state, any goods, wares or merchandise whatever, other than agricultural products and articles manufactured in Maryland within the said limits, either by card, sample or other specimen, or by written or printed trade list, or catalogue, whether such person be the maker, or manufacturer, or not, without first obtaining a license so to do.” This statute plainly imposed a discriminating tax upon persons trading in the manner mentioned therein, within certain limits in the state, who were residents of other states. And it was solely upon this ground that the statute was declared unconstitutional; and Justice Clifford, delivering the opinion of the court, says: “ Taxes, it is conceded, in those cases (referring to Woodruff v. Parham, 8 Wall. 139, and Hinson v. Lott, id. 151), may be imposed by a state on all sales made within the state, whether the goods sold were the produce of the state imposing the tax, or of some other state, provided the tax imposed is uniform; but the court, at the same time, decides that a tax discriminating against the commodities of the citizens of the other states of the Union would be inconsistent with the provisions of the federal constitution; and the law imposing such a tax would be unconstitutional and invalid.”
No question is made in this case as to the uniformity of the tax; and it does not discriminate against either the persons or property of other states. Neither in respect to discrimination is the act under consideration similar in any way whatever to the act declared unconstitutional in the case of Wilton v. Missouri, 91 U. S. 275. The act in question, in that case, required “the payment of a license tax from persons who deal in the sale of goods, wares or merchandise which are not the growth, product or manufacture of the state, by going from place to place, to sell the same, in the state; and required no such license tax from persons selling in a similar way goods which were the growth, produce or manufacture, of the state.”
The statute in question differs from the one in the case above stated, in that it does not discriminate against “the sale of goods, wares and merchandise which are not the growth, product or manufacture of this territory.” It was upon the ground of discrimination that this case was decided.
At the close of his opinion in this case, Field, justice, speaking for the court, says: “As the main object of that commerce, i. e., interstate commerce, is the sale and exchange of commodities, the policy thus established would be defeated by discriminating legislation like that of Missouri.” And then, referring to the case of Woodruff v. Parham, supra, continues: “Mr. Justice Miller, speaking for the court, after observing, with respect to the law of Alabama, then under consideration, that there was no attempt to discriminate injuriously against the products of other states, or the rights of their citizens, and the case was not, therefore, an attempt to fetter commerce among the states, or to deprive the citizens of other states of any privilege or immunity, said: ‘But a law having such operation would, in our opinion, he an infringement of the provisions of the constitution which relate to those subjects, and, therefore, void.’”
The act of the legislature in question, unlike those declared unconstitutional in both of the above cases, does not discriminate between persons who are citizens of this territory and citizens of other states and territories, or between goods, wares and merchandise which are the product and manufacture of other ■ states and territories, and which are the product and manufacture of this territory. It is not, therefore, in our opinion, in conflict with that clause of the constitution of the United States which provides that “the citizens of each state shall he entitled to all privileges and immunities of citizens of the several states.”
It remains to consider whether or not this act is in conflict with those provisions of the constitution of the United States, that congress shall have power “to regulate commerce with foreign nations and among the several states,” and that “no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.”
The act requires the payment of a license fee for each county in which the business of selling by sample is conducted, which license is to continue in force for the period of three months from its date. In respect to the changes of the constitution referred to, a state is as much subject to these restrictions as a territory. Therefore, the reasons which apply in the one case are applicable, also, in the other. As a general rule, the right of taxation is one of the incidents of sovereignty, and is co-extensive with its exercise. The right-of taxation by the state, therefore, in the absence of any constitutional limitation, extends to all, objects which are subjected to its sovereignty. To say that a state cannot tax an individual within its jurisdiction, and carrying on an occupation within its limits, would be a denial of its sovereignty as a state. The individual is within the jurisdiction of the state; his business is carried on within its limits; both himself and his occupation are protected by the state; and his occupation may, therefore, be the lawful subject of state taxation.
“Taxation only exacts a contribution from individuals of the state . . . for which they receive compensation in the protection which government affords. . . .” County of Mobile v. Kimball, 102 U. S. 691.
The only exception to this general rule in the case of the state is where the constitution has reserved to the general government the right “to regulate commerce with foreign nations, among the several states, and with the Indian tribes; ” and prohibited any state from laying a duty on imports or exports, without the consent of congress, “except when absolutely necessary to execute its inspection laws.”
The statute in question does not assume to regulate commerce; it does not prescribe rules for the conduct of commercial transactions. It does not contemplate any restriction upon commerce. It simply imposes a tax upon an occupation exercised by all persons within the limits of the state. Neither does it impose any duty or imposts on imports. Certainly every duty or impost is a tax; but every tax is not a duty or impost within the meaning of that term as used in the constitution. It may be claimed that this tax is within the constitutional prohibition, because its tendency is' to increase the price of the goods imported. But this proves too much. It has been universally conceded that after imported merchandise has been removed from the original package and mingled with other goods, that they are the subject of state taxation. “It is sufficient for the present to say generally that when the importer has so acted upon the thing imported tl|at it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import and has become subject to the taxing power of the state.” Chief Justice Marshall, in Brown v. State of Maryland, 12 Wheat. 419.
But the tendency of the tax in such a case is to increase the price of the goods as well. The tax in such a case enhances the price of the sale by the importer and its cost to the consumer; for it is the consumer, in the end, who must pay the tax. This fact, therefore, that the price of the goods is increased by the tax, is not the true criterion by which to determine the right to tax the occupation. No doubt every tax upon personal property or upon occupations, business or franchises, affects more or less the subjects and the operations of commerce. Yet “it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the constitution.” Justice Strong, in “State tax on railway gross receipts,” 15 Wall. 284.
In this case it was held that a statute of a state imposing a tax upon the gross receipts of railroad com pañíes was not repugnant to the constitution of the United States; although such receipts came partly from freights received from transportation of goods from Pennsylvania into another state, or from such other state into Pennsylvania. Further on in the opinion the same judge says: “Is, then, the tax imposed by the act of February 23, 1866, a tax upon freight transported into or out of the state, or upon the owner of freight, for the right of thus transporting it? Certainly it is not directly. Yery manifestly it is a tax upon the railroad company, measured in amount by the extent of its business or the degree to which its franchise is exercised. That its ultimate effect may be to increase the cost of transportation must be admitted. So it must be admitted that a tax upon any article of personal property that may become a subject of commerce, or upon any instrument of commerce, affects commerce itself. If the tax be upon the instrument, such as a stage-coach, a railroad car, or a canal or steamboat, its tendency is to increase the cost of transportation. Still, it is not a tax upon transportation or commerce. And it has never been seriously doubted that such a tax may be laid.” So in this case the occupation taxed may be treated as one of the instrumentalities of commerce. The profits of the occupation are made within the limits of the territory imposing the tax; and the same reasons which are applicable in the case cited will also apply in the case at bar. The license fee exacted is not a tax upon the importer or the importation. It is the purchase of the privilege of engaging in the occupation of selling goods, waives and merchandise, just as may be exacted in the case of auctioneer, peddler, saloon-keeper, or other trade or profession.
We do not think that the decision in Brown v. State of Maryland, supra, applies to this case. In that case Brown was indicted, under a law of the state of Maryland requiring all importers of foreign articles to take out a license before selling the same, “for having im ported and sold one package of foreign dry goods without license so to do.” It was held that a tax upon the sale by the importer of goods imported for sale in the original package was a tax upon the goods themselves, and in this respect a violation of the constitution in relation to the prohibition to a state to levy duties and imposts on imports. Also, that sale having been the object of importation, the importation gave the right to sell the goods imported in the original package, without taxation by the state, and therefore repugnant to that clause of the constitution in relation to the regulation of commerce. It is plain that, in such a case, the taxation of the importer for a license to sell in the original package is substantially a direct impost or duty on imports. It makes no difference whether the tax is placed upon the importer, in the way of a license to sell the original package, or directly upon the original package itself. In such a case the power to tax could be exercised to such a degree as in substance directly to prohibit the importation. But in the case at bar the person following the occupation taxed is not necessarily the owner of the goods, which it is claimed are indirectly taxed. His occupation is simply one of the instrumentalities of commerce by which sales are made within the meaning of the decision in “State tax on railway gross receipts,” supra. The tax is not a direct tax upon importation. It can hardly be called an indirect tax. The license fee might be made so exorbitant that it would prohibit the occupation and prevent the importation of goods. His occupation might cease entirely, and the business of importing goods into the territory go on uninterrupted.
It will be remembered that in the rendition of the decision in Brown v. Maryland, supra, the judges were not unanimous. A strong dissenting opinion was rendered by Thompson, justice. This decision has been frequently referred to in subsequent cases before the same court; and while it has been upheld as authority, yet that court has often announced that its principles ought not to be applied to any state of facts ■which do not come plainly within the facts stated in that case. The state of facts in the case at bar is essentially different from that of the case of Brown v. Maryland. In discussing the question as to whether or not an act of a state or territorial legislature is in conflict with the above provisions of the constitution, the supreme court of the United States has frequently declared that the lines marking the boundaiy between the right of taxation by the state and the power of the general government to regulate commerce and to limit the imposition of a duty or impost on imports and exports by the state is difficult to define. In Brown v. Maryland, supra, Chief Justice Marshall, referring to this distinction, says: “'The power and the restriction upon it, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them. Tet the distinction exists, and must be marked as the cases arise. Till they do arise it might be premature to state any rule as being universal in its application.” Reference to the same figure of speech, and the use in substance of the above language, is had by Field, justice, in the case of Wilton v. State of Missouri, supra. In our examination of the cases which have come before the supreme court of the United States, in which this subject has been considered, with but one or two exceptions, the decisions have been made by a divided court. It would appear, therefore, that no general rule is applicable in relation to the exercise of these two powers; but that each case must be determined upon the facts as they are presented. “It is quite difficult, if not impossible, to draw any general line that will mark with any degree of precision where the commercial power of congress ends and where the power of each state begins.” Hawley, C. J., in Ex parte Robinson, 12 Nev. 263.
In the case of City of New York v. Miln, 11 Pet. 136, which was an action of debt brought in the circuit •court of the state of New York to recover from the defendant the amount of certain penalties imposed by a •statute of that state, Barbour, J., in delivering the opinion of the supreme court of the United States, and discussing the distinction which existed between the case then under consideration and that of Brown v. The State of Maryland, says: “It is difficult to perceive what analogy there can be between a case where the right of the state was inquired into in relation to a tax imposed upon the sale of imported goods- and one where, as in this case, the inquiry is as to its rights over persons within its acknowledged jurisdiction. The goods are the •subject of commerce, the persons are not. The court did, indeed, extend the power to regulate commerce so as to protect the goods imported from state tax, after they were landed and were yet in bulk. But why? Because they were the subject of commerce, and because, as the power to regulate commerce, under which the importation was made, implied a right to sell, that right was complete without paying the state for a second right to sell whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject of commerce, and not being imported goods cannot fall within a train of reasoning founded upon the construction of a power given to congress to regulate commerce, and the prohibition to the state from imposing a duty on imported goods.”
We think that the state of facts in the case at bar brings it clearly within the boundary of the sovereignty of the territory. The right of taxation in such a case, as was said by the supreme court of Indiana, “is inseparable from sovereignty essential to its existence, and one which all expounders of the constitution admit to have been reserved.” Beall v. State, 4 Blackf. 109.
“To pronounce such a law unconstitutional,” says Hawley, O. J., in Ex parte Robinson, supra, a case relat ing to a similar statute to the one in question, “because it might, in some imaginable manner, affect the operations of commerce, would be to surrender the principle-that a state has the right, for its support, to impose a. tax upon citizens who are conducting business within its jurisdiction. Such a doctrine is not, in our opinion, sustained by the reasoning of any of the cases cited by counsel. On the other hand, while the facts in many of the cases referred to are different from the case at bar, the reasoning of the courts is decidedly in favor of the views we have expressed.”
In the case of Nathan v. The State of Louisiana, 8 How. 82, where it was held that “a state law which imposes a tax on exchange and money brokers is not repugnant to the constitutional power of congress to regulate commerce,” McLean, justice, delivering the opinion of the court, says: “The right of a state to tax its own citizens for the prosecution of any particular business or profession within the state has not been doubted. And we find that, in every state, money or exchange brokers, vendors of our own or foreign manufacture, retailers of ardent spirits, tavern-keepers, auctioneers, those who practice the learned professions, and every description of property not exempted by law, are taxed. . . . No one can claim an exemption from a general tax on his business within the state on the ground that the products sold may be used in commerce. ... A cotton broker may be required to pay a tax upon his business, or by way of license, although he may buy and sell cotton for foreign exportation. . . . The taxing power of a state is one of its attributes of sovereignty. And where there has been no compact with the general government, or cession of jurisdiction for the-purposes specified in the constitution, this power reaches all the property and business within the state which are not’ properly denominated the means of the general government; and, as laid down, it may be exercised at the discretion of the state. The only restraint is found in the responsibility' of the members of the legislature to their constituents. If this power of taxation by a state within its jurisdiction may be restricted beyond the limitations stated, on the ground that the tax may have some indirect bearing on foreign commerce, the resources of a state may be thereby essentially impaired. But state power does not rest on a basis so indefinable. Whatever exists within its territorial limits in the form of property, real or personal, with the exceptions stated, is subject to its laws; and also the numberless enterprises in which its citizens may be engaged. These are subjects of state regulation and state taxation, and there is no federal power under the constitution which can impair this exercise of state sovereignty.”
In Woodruff v. Parham, 8 Wall. 123, it was held that “ the term ‘import,’ as used in that clause of the constitution which says that ‘ no state shall levy any imposts or duties on imports or exports,’does not refer to articles imported from one state into another, but only to articles imported from foreign countries into the United States; and that therefore ‘ a uniform tax imposed by a state on all sales made in it, whether they be made by a citizen of it or a citizen of some other state, and whether the goods sold are the produce of that state enacting the law or of some other state, is valid.’ ”
In this case Miller, justice, speaking for the supreme court of the United States,' and referring to a remark of Chief Justice Marshall, at the close of the opinion in Brown v. Maryland, supra, which was, “that we suppose the principles laid down in this case to apply equally to importations from sister states,” says: “If the court then meant to say that a tax levied on goods from a sister state, which was not levied on goods of a similar character produced within the state, would be in conflict with the clause of the constitution giving congress the right ‘ to regulate commerce among the states,’ as much. as the tax on foreign goods, then under consideration, was in conflict with the authority to regulate commerce with foreign nations, we agree to the proposition.” See Hinson v. Lott, 8 Wall. 148, and Waring v. The Mayor, 8 Wall. 110.
We are of the opinion that the statute in question imposes a tax upon the business or occupation of the commercial traveler; that’ such tax is the price exacted by the territory for the privilege allowed by it, of pursuing within its limits a particular trade, business or avocation; that it is not a duty or an impost upon imports. That the individual and his occupation, being within the boundary of the- sovereignty of the territory, the right-of taxation incident to, and co-extensive with, that sovereignty, attaches thereto.
The judgment is affirmed.
|
[
-2,
12,
25,
-14,
47,
-69,
57,
-25,
17,
30,
-23,
-27,
8,
-35,
1,
5,
-2,
-21,
69,
-12,
4,
-50,
-83,
-58,
10,
-24,
-37,
25,
9,
11,
21,
-30,
3,
0,
-8,
54,
42,
-18,
5,
-25,
39,
10,
28,
15,
12,
30,
10,
-47,
35,
-35,
-9,
-35,
-8,
0,
-21,
-29,
27,
17,
1,
38,
40,
-26,
63,
-48,
13,
-40,
24,
25,
3,
-11,
-31,
0,
36,
30,
17,
-11,
-38,
-38,
-29,
29,
-20,
-8,
18,
-33,
-15,
5,
-48,
14,
54,
32,
0,
-10,
20,
-32,
24,
6,
-21,
-6,
-42,
11,
28,
-18,
-10,
48,
-32,
-37,
-14,
-7,
10,
30,
-6,
38,
38,
-83,
-3,
-3,
-18,
-18,
15,
35,
-1,
-9,
37,
55,
-19,
-58,
-9,
49,
33,
46,
45,
-41,
-13,
0,
29,
13,
-42,
-9,
-6,
14,
23,
-10,
-20,
0,
-6,
13,
67,
-7,
-89,
-29,
-42,
-13,
-23,
0,
35,
-55,
49,
2,
63,
1,
-6,
-12,
33,
-11,
6,
13,
-16,
8,
-27,
-5,
-24,
76,
20,
17,
60,
-15,
-4,
-42,
-4,
52,
-14,
-3,
-34,
-45,
0,
-67,
42,
-53,
-27,
-41,
29,
-14,
7,
13,
-24,
28,
46,
-40,
-26,
-2,
18,
-40,
1,
53,
-3,
21,
15,
-14,
10,
-12,
-1,
-50,
-11,
47,
48,
-8,
-60,
-19,
9,
-38,
7,
-5,
37,
2,
-35,
-23,
-35,
13,
6,
-6,
-46,
-54,
32,
-30,
-27,
-37,
10,
6,
39,
-6,
40,
-28,
0,
-39,
47,
40,
-70,
-17,
-56,
6,
1,
-5,
-13,
-17,
-14,
-29,
39,
-22,
6,
2,
43,
-31,
7,
0,
-32,
-37,
23,
-40,
6,
32,
-52,
22,
46,
-18,
-16,
-26,
-30,
2,
68,
-6,
30,
-30,
-42,
-12,
46,
-55,
-5,
17,
-24,
-28,
-72,
15,
-39,
-6,
-7,
30,
18,
-5,
13,
-5,
-10,
23,
32,
36,
24,
-1,
-21,
3,
13,
-5,
-24,
-1,
-19,
-40,
-11,
6,
33,
1,
78,
25,
-6,
2,
1,
63,
-5,
36,
-49,
10,
27,
25,
30,
-69,
-58,
-20,
-29,
-38,
40,
31,
38,
-59,
-6,
0,
-43,
-7,
-31,
47,
26,
11,
76,
-25,
-4,
6,
39,
-4,
-2,
23,
0,
-5,
-32,
23,
36,
18,
31,
-42,
-16,
0,
-61,
51,
46,
15,
-50,
32,
-1,
-46,
12,
10,
-37,
-7,
-34,
1,
20,
-17,
6,
-16,
15,
-17,
-11,
-4,
-75,
4,
11,
53,
14,
-5,
-9,
14,
3,
-59,
-20,
-29,
12,
84,
9,
-44,
-5,
-40,
-17,
-26,
-38,
1,
-30,
-27,
10,
19,
98,
7,
-1,
-26,
12,
8,
40,
59,
-17,
12,
55,
-10,
25,
27,
-14,
24,
1,
-1,
29,
56,
6,
-35,
14,
-11,
19,
51,
-5,
-17,
19,
-31,
9,
-24,
-9,
32,
55,
13,
7,
7,
-13,
-8,
-6,
26,
21,
25,
-28,
-12,
83,
16,
-10,
23,
-7,
-24,
35,
-24,
29,
55,
-16,
34,
1,
-37,
-29,
-3,
35,
17,
-18,
3,
-50,
-31,
4,
58,
16,
-26,
12,
21,
-76,
52,
-16,
38,
-41,
28,
-41,
-52,
-45,
30,
61,
0,
5,
-39,
-35,
50,
4,
21,
-6,
22,
17,
46,
54,
-22,
42,
0,
-30,
9,
-25,
6,
-54,
29,
-13,
4,
-58,
39,
10,
23,
52,
12,
62,
63,
-101,
-10,
9,
11,
28,
-52,
92,
32,
20,
10,
36,
-11,
7,
-30,
-36,
53,
16,
-12,
49,
-77,
-66,
-41,
70,
-44,
-41,
28,
-32,
32,
5,
4,
93,
56,
-39,
18,
32,
-5,
16,
2,
39,
3,
-75,
37,
45,
1,
4,
35,
-15,
0,
14,
-31,
-46,
1,
14,
-91,
0,
69,
-15,
43,
38,
30,
15,
10,
-13,
-13,
-16,
5,
2,
42,
36,
38,
-14,
-30,
-3,
4,
-21,
-46,
-60,
-22,
48,
6,
0,
-12,
-17,
33,
6,
2,
24,
-34,
12,
7,
-11,
-46,
15,
42,
12,
16,
-34,
-24,
-84,
38,
-38,
-34,
-59,
51,
-49,
102,
8,
58,
-23,
-12,
60,
-43,
46,
0,
-28,
21,
20,
39,
-4,
2,
20,
37,
-11,
47,
-60,
5,
15,
52,
11,
11,
-6,
31,
-1,
18,
0,
-23,
1,
-12,
34,
25,
59,
-89,
-33,
-18,
-3,
-36,
-57,
73,
49,
14,
6,
0,
39,
-33,
-17,
25,
-30,
27,
25,
-74,
-30,
-8,
-38,
-10,
1,
12,
-29,
-16,
-68,
-37,
-16,
11,
-43,
67,
-36,
27,
5,
-44,
-11,
-47,
-13,
0,
21,
18,
-24,
-11,
-14,
-4,
-58,
18,
-4,
-36,
-18,
-18,
29,
-70,
-15,
-18,
-13,
-3,
33,
43,
9,
10,
29,
0,
53,
-24,
-60,
-2,
5,
-56,
17,
77,
-25,
3,
-5,
-20,
-13,
-90,
14,
82,
17,
33,
-2,
-43,
-26,
28,
-44,
-22,
29,
16,
-38,
42,
-15,
-20,
27,
-19,
-60,
36,
4,
28,
-81,
-11,
-22,
7,
72,
0,
19,
-15,
16,
-1,
12,
-5,
1,
58,
0,
18,
22,
-8,
-22,
-13,
-13,
-29,
-82,
-70,
-2,
47,
17,
-48,
-29,
31,
33,
62,
-11,
-13,
-9,
15,
5,
59,
-34,
3,
17,
-39,
39,
-9,
-47,
-51,
-2,
9,
-15,
-46,
27,
31,
-13,
-37,
-28,
-18,
-45,
13,
-23,
-11,
-34,
16,
-9,
5,
0,
-21,
23,
-39,
60,
0,
-50,
-6,
11,
10,
46,
33,
-14,
-85,
-60,
6,
2,
-19,
-5,
27,
-32,
-31,
-29,
83,
-1,
-21,
-78,
-4,
-30,
-27,
-20,
-28,
-13,
43,
13,
44,
-6,
54,
61,
-30,
37,
16,
34,
-22,
-24,
8,
-30,
25,
-23,
-13,
-11,
-45,
9,
-1,
16,
-26,
-11,
55,
-24,
13,
4,
-35,
48,
14,
-55,
-12,
15,
-17,
-69,
0,
-6,
0,
-4,
-3,
20,
51,
-39,
-15,
-16,
33,
-24,
9,
10,
33,
13,
-9,
-3,
51,
-13,
33,
-46,
6,
-18,
84,
-30,
2,
-25,
1,
-36,
-14,
-37,
-3,
7,
8,
9,
8,
45,
-9,
17,
-20,
21,
-14,
30,
7,
27,
34,
28,
75,
-50,
0,
0,
-49,
38,
25,
-36,
9,
-37,
21,
-49,
-22,
6,
-11,
89,
1,
-95,
-57,
16,
-30,
-52,
-30,
16,
-8,
58,
2,
20,
23,
-38,
67,
-15,
13,
-38,
40,
40,
16,
-5,
20,
-20,
-24,
41,
-63,
-34,
-4,
-24,
-29,
-38,
-54,
10,
-28,
65,
-13,
18,
25,
-13,
9,
-4,
33,
26,
-31,
0,
-61,
-5,
57,
40,
0,
-39,
-53,
3,
5
] |
Coburn, J.
This was an action for claim and delivery by the respondent against the defendant for certain personal property, described as follows: One light red ox, branded “R” on left hip, with left born sawed off; one roan ox, branded “R” on left hip, and with left horn sawed off; one roan ox, branded “ R ” on left hip, with left horn off; one roan ox, branded “R” on left hip also, and “R” on left horn; one brindle ox, branded “R” on left hip, with both horns broken off; one yellow and white Texas ox, branded ££W” on left ribs, and blotch brand on both hips, not to be made out; one red and white speckled ox, no brand, with left horn broken off; one ten thousand iron axle wagon, Sacramento make, with wood rack and four ox yokes, with bows and chains thereto belonging, used with said oxen and wagon. A demand was alleged and judgment demanded for the recovery of the property or damages.
The defendant justified as the sheriff of Silver Bow county, alleging that, by virtue of certain writs of attachment issued on the 6th day of October, 1882, and then placed in his hands, against one “Durand,” h<g upon the 12th day of October, 1882, attached and took into his possession all of the property described in the complaint, and made and filed his return of said writ on the 13th day of October, 18S2. That from that time till the commencement of this suit he has held and possessed said property by virtue of said writs. That “Durand ” is the owner of the property, etc.
The plaintiff replied, denying, among other things, that any proper or valid writ of attachment had been issued, as alleged in the complaint; denied that under or by virtue of any legal or properly issued wrrit of attachment or otherwise the defendant attached or took into possession all or any of the property described in the complaint or made return of his proceedings to the court below on said writs of attachment; and denied further, that said Durand was the owner of the said property.
On the trial the defendant offered in evidence the returns of the sheriff on the writs of attachment named in the complaint, for the purpose of showing his seizure of and levy under the writs of attachment in said cause on the property described in said returns, and of his title thereto, said returns being as follows: “ I do hereby certify that I received this writ on the 6th day of October, A. D. 1882, and personally served the same on the-day of ■-, A. D. 1882, and levying upon and attaching and taking into my possession the following described property, to wit: Ten yoke of work cattle, fourteen head branded “L,” on the right thigh; six head branded with different brands; thr$e iron axle wagons, one wood axle wagon, eight yokes, six chains, taken as the property of Oscar Durand, this 12th day of October, 1882.” Also the return in another case, to a writ of attachment, as follows: “I do hereby certify that I received this writ on the 6th day of October, 1882, and personally served the same on the-day of -, A. D. 188-, and levying upon and attaching and taking into my possession the following described property, to wit: Ten yoke of work cattle, fourteen head branded “L” on the right thigh; six head branded with different brands; three iron axle wagons, six chains, taken as the property of Oscar Durand. Dated this 12th day of October, 1882.” These returns were signed by the sheriff.
The plaintiff objected to the introduction of these returns in evidence, so far as the six head of cattle are concerned, described as being of different brands, on the ground that the return did not specifically describe the said six head of cattle of different brands; and that as to them, it did not show any levy and seizure under said attachment, of the cattle described in plaintiff’s complaint, and that the attempted description of said six head of cattle in the said return was too indefinite and uncertain to identify said property.
The defendant then offered to prove by James M. Fish that the cattle described as six head of cattle with different brands, that he levied upon, seized and held under and by virtue of the writs of attachment in the above entitled causes, with the other cattle described in the return; and also to identify the said six head of cattle as the six head of cattle in said return named, and as the cattle described in plaintiff’s complaint; and also to prove that they were the six head of cattle taken from him by the plaintiff in its action herein; and also to prove that he was the deputy sheriff who executed said attachment. To the introduction of this evidence the plaintiff objected, on the ground that the defendant could not prove by parol what he did under said attachment, and that the only evidence he could give of his proceedings under said attachment is the written return as sheriff on said attachment, and also upon the ground that the return, being in evidence and being a record, could not be explained by parol when insufficient upon its face, but, if incorrect, could only be made correct by amendment in the proper court in-accordance with the facts. The court sustained these objections and excluded the return as to said six head of cattle of various brands, and refused to allow the said witness Fish to testify as to the facts above specified, for which he was introduced. To this ruling the defendant excepted.
Should the court have excluded the return as to the “six head of cattle branded with different brands,” because the same was so indefinite and obscure as not to amount to an inventory? The statute provides that the sheriff shall make a full inventory of the property attached, and return the same with the writ. What is a full inventory? An inventory is a list or schedule, or enumeration of property, setting out the names of the different articles, either singly or in classes. See Boüvier, “Inventory.” The inventory of a store, containing many thousand articles, as full and complete as the most accurate man of business could make it, would not contain a tenth part of the number of the articles set out separately in the list; large numbers would be classified, and would be as well described in that way as if mentioned singly. An inventory of a herd of sheep might be full, if it contained the number in gross or the number of the classes. This would be true of a drove of hogs. It would, be difficult, in many instances, to give any other inventory than the number only. It is apparent that, there could be i)o arbitrary rule upon the subject, as to what is a full inventory, since it depends upon the nature of the matters which are included in it. So an inventory of cattle, having a particular brand, would he complete with a statement of the number and the brand; but, if the cattle were not branded so as to be classified, and were numerous, they might be designated by their numbers alone, being classified, possibly, as to ages; but, as in this instance, where there were but six, a more perfect inventory, might have been made. The law contemplates a full inventory: the word “full” is, of itself, indefinite. It might be construed to mean full in number alone, or it might meaii that each article should have a minute description. But this is not the ordinary acceptation and definition of the term.
A reasonably brief and certain description or naming of the articles is sufficient. This one is not so faulty as to be a nullity. “Six bead of cattle, with different brands,” is a brief description of substantial property. A further description might have been added as to natural marts, and colors, artificial marks and brands, ages and sizes. But these would only have the effect of making identification more easy. The sheriff makes himself responsible by his return for six head of cattle, and he should have had the benefit of his return in the court below, and should have been permitted to have identified the cattle as the very same which were seized by the plaintiff in this action. The question of identity could have been settled by parol proof, and by nothing else. In this case the return was not the only evidence of the nature and description of the property. The property was taken into the possession of the sheriff, and could thus be identified by parol proof. In some states there is a provision by statute that the sheriff may dispense with the taking of the attached property into his possession in case it is bulky and ponderous, by leaving of record an attested copy of the writ, and of his return of such attachment thereon; and, in such a case, it would be important to have the property described with greater particularity and exactness, since it might fall into the hands or under the control of third persons. The property in this case, however, was held in the possession of the sheriff, and there could be no mistake as to its identity.
. In Darling v. Dodge, 36 Maine, 370, is to be found a parallel case to the one at bar. In that case the return of the officer was, that he had attached “sixty cords of soft cordwood, more or less, now lying near the western end of the bridge leading over McHard’s stream.” It appears, from the evidence, that the wood consisted of pine and spruce and white birch and white maple, intermingled together, in proportion of about two-thirds of spruce and pine and one-third of white birch and white maple;, that it was all cut from the same land and at the same time, and hauled intermingled, without separation of one kind from the other, and that it continued so intermingled till it was taken away and sold by the defendant after the attachment. For that taking and selling the suit was brought. The court say: “ An attachment of personál property, like that in controversy, cannot be made by simply indorsing a return thereof on the writ. It is the duty of the officer to be present at the place where it is situated, and take it into his possession, in order to justify him to make his return that it had been attached. . . . The return of the officer is the evidence that the property referred to therein has been attached. ■ But parol evidence is competent to show that the property attached, and that in dispute, is identical. . . . The attachment may be valid, although the return may not he so specific in the description of the property as to render it certain what was really taken by virtue of the writ. Parol evidence to settle such a question may with propriety be adduced. ... In the case at bar it was essential to the maintenance of the action that it should appear in some manner that the wood taken by the defendant was the same which had been attached in the writ.” It was left to the jury to determine whether the attachment embraced all the different kinds of wood, pine, spruce, birch and maple, or only pine and spruce, the “soft wood.”
In Drake on Attachment, section 210, it is said: “Where an officer justifies under an attachment, a misdescription in his return of an article of personal property attached by him will not vitiate the attachment, if the appearance and use of the article are such that it may have been naturally, in good faith, so misdescribed. And this is not a question of law to be decided by the court, but of fact, to be tried by a jury.” See Briggs v. Mason, 31 Vt. 433. The object of the statute, which requires a return to a writ of attachment to be specific in the description of property attached, and to be made a public record, is more particulaiiy to protect attaching creditors in cases where the sheriff does not retain the possession of the property; and is intended to supply the same information to a subsequent attaching creditor or purchaser that might be obtained by such a person by seeing the property in the actual possession of the sheriff under the writ, so that thereby he might be put upon inquiry as to a prior claim. In the case at bar the property was in the actual possession of the sheriff; could be seen and identified as that -which had been levied upon. There could be no mistake about that fact; and it was proper that it should appear in evidence that it was the identical property in controversy.
Judgment reversed and cause remanded for a new trial.
Judgment reversed.
|
[
-2,
-15,
3,
15,
74,
-55,
23,
4,
55,
37,
11,
-5,
-14,
44,
0,
69,
-45,
-38,
17,
-25,
-1,
-80,
-18,
3,
27,
-67,
-27,
-43,
-74,
17,
-19,
68,
-30,
37,
20,
-14,
22,
-70,
8,
18,
42,
11,
13,
7,
32,
36,
-34,
5,
21,
-60,
41,
-44,
-23,
-28,
-24,
-8,
19,
-4,
-12,
-30,
69,
-81,
36,
-15,
-42,
-31,
26,
-18,
-63,
8,
47,
-3,
8,
-25,
-27,
-55,
-17,
-39,
16,
23,
16,
-4,
5,
-4,
-35,
36,
-17,
-19,
-21,
13,
-49,
7,
-12,
18,
52,
-22,
-30,
22,
-93,
19,
6,
-13,
4,
-27,
-4,
-28,
-47,
-24,
-11,
-10,
22,
0,
-13,
-15,
20,
-65,
9,
-34,
17,
10,
2,
22,
23,
-20,
-22,
26,
-19,
25,
26,
25,
33,
15,
11,
27,
8,
-11,
3,
17,
-7,
6,
-8,
15,
-40,
-56,
-6,
-21,
43,
9,
-37,
19,
-32,
31,
16,
24,
23,
-8,
3,
64,
16,
0,
38,
21,
51,
-25,
23,
32,
-13,
-12,
17,
-24,
-24,
30,
-14,
-5,
23,
12,
-39,
52,
7,
44,
73,
32,
-29,
6,
23,
-2,
-25,
14,
-3,
61,
60,
-11,
-4,
-42,
-36,
-25,
1,
-53,
3,
4,
46,
-26,
-31,
-1,
38,
25,
76,
-47,
16,
-6,
-36,
7,
-42,
28,
-22,
-11,
-33,
-30,
-36,
-39,
-20,
38,
29,
17,
28,
7,
31,
41,
77,
17,
-40,
34,
0,
-77,
3,
-87,
30,
-55,
-33,
35,
-21,
-31,
-16,
-73,
5,
-54,
-18,
9,
54,
34,
0,
-32,
-55,
-36,
-22,
0,
15,
-7,
2,
-2,
-13,
-8,
43,
33,
18,
-61,
-13,
-18,
-11,
20,
-29,
6,
40,
16,
-23,
-11,
24,
9,
1,
-10,
22,
-5,
-34,
21,
34,
-11,
5,
7,
-34,
-52,
-38,
-4,
-7,
-42,
-51,
72,
21,
-18,
66,
30,
-22,
-5,
-37,
-30,
-36,
-25,
-27,
-26,
-39,
-29,
-26,
-54,
14,
7,
2,
-11,
42,
63,
-25,
-9,
-33,
5,
-7,
2,
29,
2,
-43,
25,
11,
43,
-12,
-36,
-20,
-47,
-69,
0,
-2,
34,
13,
0,
52,
23,
-27,
-12,
5,
38,
-15,
-44,
21,
12,
-24,
-29,
-43,
-22,
21,
-28,
-15,
10,
9,
59,
64,
-51,
18,
-24,
28,
-31,
-40,
-40,
7,
-33,
16,
36,
63,
1,
23,
-44,
-60,
-24,
30,
-11,
19,
0,
-5,
14,
80,
-18,
16,
-23,
-26,
5,
5,
87,
13,
22,
4,
-15,
-58,
-60,
14,
-39,
7,
12,
-28,
-60,
-72,
-22,
-10,
40,
4,
-84,
23,
-12,
-13,
0,
26,
-5,
-38,
5,
-47,
14,
58,
22,
35,
-17,
42,
-16,
61,
-22,
-38,
5,
57,
-9,
38,
58,
52,
-57,
-24,
35,
5,
-9,
15,
18,
-7,
67,
-55,
8,
-48,
31,
82,
-28,
-10,
-39,
-7,
11,
-48,
53,
85,
53,
10,
8,
33,
-33,
16,
8,
10,
10,
54,
-53,
-38,
19,
27,
8,
26,
-76,
-43,
-1,
-13,
4,
8,
36,
-56,
32,
-4,
65,
-12,
17,
-48,
0,
53,
46,
-10,
-17,
-44,
19,
4,
7,
-69,
27,
92,
28,
-42,
-4,
-38,
25,
78,
105,
21,
-30,
-8,
60,
52,
-11,
31,
-70,
-7,
5,
-2,
51,
26,
-14,
12,
-31,
-55,
-27,
-11,
-34,
87,
-18,
-12,
30,
-70,
-51,
1,
-36,
25,
-3,
67,
26,
2,
-61,
-19,
19,
65,
-24,
-20,
13,
1,
-39,
24,
17,
-16,
10,
53,
24,
-12,
62,
-25,
-32,
-58,
-13,
30,
25,
-50,
-42,
8,
-29,
30,
8,
-18,
-13,
-12,
17,
46,
-8,
24,
-8,
-44,
-28,
-8,
30,
-33,
-19,
-3,
34,
15,
1,
22,
16,
-28,
44,
0,
72,
-13,
0,
6,
48,
-66,
44,
-3,
30,
19,
-40,
13,
56,
-5,
4,
-29,
-17,
24,
27,
26,
41,
-36,
-13,
15,
-24,
5,
-19,
30,
25,
34,
-42,
-64,
89,
-15,
-49,
6,
-64,
-7,
3,
6,
8,
1,
84,
-29,
28,
-5,
60,
-18,
-59,
6,
-47,
0,
-7,
-20,
34,
-32,
-21,
-19,
-49,
-62,
-32,
42,
20,
-13,
15,
14,
-25,
-6,
-14,
54,
-49,
-6,
-14,
46,
0,
19,
63,
-46,
34,
7,
-36,
-1,
-25,
-39,
-5,
-29,
8,
44,
-36,
33,
24,
-9,
30,
43,
-29,
23,
-19,
24,
-5,
-29,
23,
14,
56,
-11,
22,
-20,
-45,
-25,
-2,
-29,
-23,
-19,
79,
34,
-9,
-16,
-23,
10,
-23,
34,
-27,
35,
-26,
22,
-51,
43,
-11,
-21,
-18,
18,
5,
53,
-6,
42,
-31,
0,
90,
35,
13,
21,
36,
-5,
13,
-11,
4,
-4,
16,
-41,
10,
-52,
-14,
86,
6,
23,
-18,
23,
-7,
-23,
-4,
37,
35,
-41,
-5,
13,
-72,
-28,
-43,
-37,
-66,
68,
-15,
-8,
11,
-28,
20,
-15,
-28,
29,
-22,
7,
13,
37,
-34,
61,
-26,
19,
17,
72,
11,
-1,
-56,
14,
37,
-24,
38,
3,
-44,
1,
-60,
22,
-104,
-20,
-23,
-107,
-46,
-15,
-33,
-31,
-1,
-25,
-21,
-9,
32,
50,
-4,
38,
5,
-30,
61,
-17,
11,
-6,
-22,
9,
-42,
-16,
-22,
16,
10,
-31,
-24,
45,
71,
8,
10,
2,
-7,
-15,
8,
33,
-42,
-46,
48,
36,
6,
11,
31,
-30,
-4,
21,
16,
8,
-39,
20,
-8,
-34,
44,
-41,
-50,
-36,
8,
-36,
32,
0,
-34,
53,
-37,
2,
-24,
6,
-45,
-7,
-38,
-7,
-17,
-7,
-14,
-31,
53,
60,
18,
-41,
29,
43,
32,
-12,
17,
73,
21,
-3,
-25,
-74,
11,
4,
23,
7,
-41,
23,
38,
-10,
4,
30,
47,
40,
-37,
-8,
-22,
-12,
-6,
-26,
38,
-4,
24,
78,
-38,
27,
-58,
3,
3,
5,
-49,
-32,
-14,
-50,
4,
-33,
18,
-24,
-9,
58,
-36,
-1,
-26,
-11,
-20,
16,
74,
-8,
74,
-29,
53,
8,
-29,
24,
17,
-8,
-71,
8,
13,
26,
45,
-15,
21,
-4,
-22,
-27,
-35,
-44,
12,
14,
39,
55,
43,
-30,
16,
-13,
11,
32,
34,
37,
30,
9,
17,
28,
63,
13,
44,
-23,
-18,
-83,
10,
-24,
-43,
32,
-37,
4,
8,
21,
17,
29,
-37,
-89,
11,
37,
-29,
-18,
-28,
-25,
4,
-42,
77,
-30,
12,
-7,
-15,
-3,
30,
-10,
-40,
-45,
-48,
-11,
55,
20,
4,
55,
18,
5,
-51,
-30,
-23,
-20,
17,
23,
-20,
56,
62,
-6,
-14,
-2,
-49,
44,
34
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Jeffrey Winter (Winter) appeals the order of the Eighth Judicial District Court, Cascade County, denying his motion for summary judgment and granting summary judgment to State Farm Automobile Insurance (State Farm). The District Court determined that State Farm was not required to pay Winter’s medical expenses pursuant to his automobile medical payments (med pay) coverage that were previously paid by Winter’s health insurer. We reverse, and address the following issues on appeal:
¶2 1. Did the District Court err by granting summary judgment to State Farm after concluding that Winter had not “incurred” any medical expenses?
¶3 2. If the District Court erred by not granting summary judgment to Winter, is Winter entitled to costs, interest, and attorney fees?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On October 20,2011, Winter injured his left knee when he stepped into his truck while working on it. His injury required medical care, including surgery, resulting in total medical expenses of $7,929.83. At the time of the injury, Winter was insured by an automobile insurance policy issued by State Farm. The truck was a specifically named insured vehicle for this policy. The State Farm policy provided med pay coverage up to $15,000. Winter also had health insurance coverage through Blue Cross and Blue Shield (BCBS) under a separately purchased policy. Winter’s premium for the BCBS insurance was $8,808 for the year.
¶5 Winter’s medical bills were originally submitted to his BCBS health insurance, which paid nearly all the expenses. On February 15, 2012, Winter notified State Farm of his claim for benefits pursuant to his med pay coverage. State Farm paid only the $25.02 that was unpaid at that time, refusingto pay further benefits on the ground that no expenses were left unpaid. Winter filed suit against State Farm, alleging breach of the insurance contract for its failure to pay the entirety of his medical expenses, and alleging unfair trade practices.
¶6 The State Farm policy for the coverage at issue states that State Farm will pay:
medical expenses incurred because of bodily injury that is sustained by an insured and caused by a motor vehicle accident.
(Emphasis in original to indicate defined terms.) The policy also includes nonduplication and exclusion provisions. The nonduplication provisions explain that State Farm will not pay any medical expenses under med pay coverage that have already been paid:
1. as damages under Liability Coverage, Uninsured Motor Vehicle Coverage, or Underinsured Motor Vehicle Coverage of any policy issued by the State Farm Companies to you or any resident relative; or
2. by or on behalf of a party who is legally hable for the insured’s bodily injury.
(Emphasis in original.) The fourteen exclusion provisions are all directed toward what activities will preclude coverage except one which provides:
THERE IS NO COVERAGE FOR AN INSURED:
2. TO THE EXTENT ANY WORKERS’ COMPENSATION LAW OR BENEFITS OR ANY SIMILAR LAW APPLIES TO THAT INSURED’S BODILY INJURY.
(Caps and emphasis in original.) Finally, the policy includes provisions applicable to when “Other Medical Payments Coverage or Similar Vehicle Insurance Applies.” This section dictates that:
1. An insured shall not recover for the same medical expenses or funeral expenses under both this coverage and other medical payments coverage or similar vehicle insurance.
2. The Medical Payments Coverage provided by this policy applies as primary coverage for an insured who sustains bodily injury while occupying your car or a trailer attached to it.
If medical payments coverage or other similar vehicle insurance provided by one or more sources other than this policy also applies as primary coverage, then we will pay the proportion of medical expenses and funeral expenses payable as primary that our applicable limit bears to the sum of our applicable limit and the limits of all other medical payments coverage or similar vehicle insurance that apply as primary.
(Emphasis in original.)
¶7 The parties filed cross motions for summary judgment. They agreed there were no material issues of disputed fact, and further stipulated to the amount of Winter’s “medical expenses,” that Winter suffered a “bodily injury,” that Winter was “an insured,” and that his injury was due to “a motor vehicle accident.” State Farm also agreed that health insurance is not included among the exclusion, nonduplication, or “other insurance” provisions of the policy. State Farm’s sole argument was that the term “incurred,” as used but not defined in the policy, only applied to expenses that the insured either personally paid or was liable to pay at the time he requested payment, and, therefore, Winter had not “incurred” any expenses for purposes of his med pay coverage other than the $25.02 which it had paid.
¶8 The District Court granted summary judgment in favor of State Farm, reasoning that “State Farm was not presented with a medical expense that had been incurred, in that Mr. Winters [sic] did not become liable or subject to any medical bills as a result of his injury and has, in fact, been made whole.” It further determined that Winter’s “reasonable expectations” were met because a “reasonable insured would not expect coverage for a nonexisting debt,” citing Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, 343 Mont. 279, 184 P.3d 1021.
STANDARD OF REVIEW
¶9 We review a district court’s grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria applied by the district court. Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294 P.3d 382. A moving party is entitled to summary judgment when the party “demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law.” Harris, ¶ 11. The parties in this case do not raise any genuine issues of material fact, and we determine there are none, leaving only the question of entitlement to judgment as a matter of law. The interpretation of an insurance contract is a question of law. Babcock v. Farmers Ins. Exch., 2000 MT 114, ¶ 5, 299 Mont. 407, 999 P.2d 347. Questions of law are reviewed to determine if the district court’s conclusions are correct. Harris, ¶ 11.
DISCUSSION
¶10 1. Did the District Court err by granting summary judgment to State Farm after concluding that Winter had not “incurred” any medical expenses?
¶11 The parties’ positions boil down the dispute in this case to the meaning of the term “incurred” as used in Winter’s insurance contract with State Farm. The term is not defined by the policy. Winter argues that because there is no exclusion or nonduplication provision in the policy to preclude coverage for medical expenses when a separately purchased health insurance policy has already paid them, the plain language of the policy’s med pay coverage requires that his expenses be paid. He disputes State Farm and the District Court’s definition of the term “incurred,” arguing “[t]he fact that he incurred [the medical expenses] does not change simply because another source was also available to pay those bills on Mr. Winter’s behalf.” He also argues that the definition of incurred offered by State Farm makes the exclusions and nonduplication provisions in the policy superfluous, because they specifically contemplate payment of the insured’s expenses by an alternate source, such as workers’ compensation, a separate vehicle insurance policy, or a hable third party.
¶12 State Farm acknowledges that no provision in the policy expressly prevents duplicate payments when health insurance has paid the expenses on the insured’s behalf. However, State Farm argues that, in determining the correct meaning of incurred, “the word must be interpreted to give effect to the consistent, non-duplication of coverage objective reflected in the policy as a whole” and to “reflect the non-duplication intent of the [med pay coverage] benefits.” State Farm also argues that its definition is the only one that complies with our prior cases, and notes that, like the insured in Newbury, Winter has already been made whole for all of his medical expenses. State Farm contends that any farther payment under the policy would result in a prohibited windfall to Winter, and it is not reasonable for him to expect to receive duplicate payments for the same expenses.
¶13 Although a general rule of interpretation is to “read the policy as a whole and, if possible, [ ] reconcile its various parts to give each one meaning and effect,” we must first consider the terms and words of the contract, which “are to be given their usual meaning and construed using common sense.” Newbury, ¶ 19. When the parties dispute the meaning of a term in the contract, “we determine whether the term is ambiguous by viewing the policy from the viewpoint of a consumer of average intelligence not trained in the law or insurance business.” Newbury, ¶ 19. It is not the Court’s duty to impose an exclusion from coverage based on an inference taken from an undeclared purpose of the policy. To the contrary, “limiting language must be clear and unambiguous.” Christensen v. Mt. W. Farm Bureau Mut. Ins. Co., 2000 MT 378, ¶ 27, 303 Mont. 493, 22 P.3d 624. “It is the rule of construction in Montana that language of limitation or exclusion must be clear and unequivocal; otherwise, the policy will be strictly construed in favor of the insured.” Christensen, ¶ 27 (citations omitted).
¶14 Winter cites, and the District Court applied, a dictionary definition of “incur” as “to become liable or subject to.” Merriam-Webster’s Collegiate Dictionary 590 (10th ed., Merriam-Webster, Inc. 1998). The parties agree to this basic definition, but disagree about when an injured person becomes “liable or subject to” medical expenses for purposes of the policy. “Liable” is defined as “obligated according to law or equity” or “responsible.” Merriam-Webster’s Collegiate Dictionary 670. State Farm argues that an insured cannot be liable for expenses that are paid on his behalf by a third party and no amount is owed. Winter argues that an injured person becomes liable for the expenses at the time services are rendered regardless of whether a third party will ultimately pay them on his behalf, and therefore the med pay coverage is triggered.
¶15 Though we have not previously addressed this issue, both parties support their respective positions by citing prior cases wherein the term “incurred” was used. State Farm notes that in Conway v. Benefis Health System, 2013 MT 73, ¶ 34, 369 Mont. 309, 297 P.3d 1200, we explained that our decision in Newbury “ultimately upheld State Farm’s refusal to pay more than the medical expenses actually incurred because a windfall would result if the plaintiff were to receive additional money under his medical payments coverage in excess of his total medical expenses.” (Emphasis added.) Similarly, Winter cites Diaz v. State, 2013 MT 331, ¶ 13, 372 Mont. 393, 313 P.3d 124, wherein we explained our holding in Blue Cross & Blue Shield of Montana v. Montana State Auditor, 2009 MT 318, 352 Mont. 423, 218 P.3d 475: “In that case, coordination of benefits language in a Blue Cross and Blue Shield policy excluded coverage for any health care costs incurred by its insureds if they received or were entitled to receive payment of those costs from a third parly’s automobile or premises liability policy.” (Emphasis added.) However, in neither of these cases was the meaning of “incurred” as used in the policy at issue. The term was simply used to summarize the holding of a prior case. We do not find the cited language from either case to be instructive on the definitional issue here.
¶16 We agree with Winter that an ordinary consumer would consider the term “incurred” to be clear and unambiguous. Under general understanding, a person incurs medical expenses at the time services are rendered. When a patient presents at a hospital or doctor’s office, the provider makes clear that the patient is responsible for any and all charges, whether or not insurance or some other third party ultimately pays them. The provider does not agree to hold the patient harmless for the services rendered on his behalf, nor does an insurer assume liability for payment of all medical expenses simply by issuing the policy. Thus, a common sense understanding dictates that a person incurs medical expenses at the time of service because he is responsible for the charges from that moment forward. If a third party, such as an insurer, ultimately pays some or all of those charges, the insurer is merely relieving the person of liability he has already assumed. At no point does the insurer become liable to the provider directly. Rather, if the insurer fails to pay according to the terms of the policy, the insured’s remedy is to file an action against the insurer. Meanwhile, the provider may seek payment from the insured, regardless of how meritorious the insured’s case is against the insurer. The provider could not pursue collection against the insurer directly without a valid assignment of claim from the insured because no contractual obligation exists between the provider and the insurer for the services.
¶17 Other jurisdictions have similarly concluded that a common sense rendering of the term means that an insured incurs medical expenses at the time services are rendered. See Shanafelt v. Allstate Ins. Co., 552 N.W.2d 671, 676 (Mich. App. 1996) (“Obviously, plaintiff became liable for her medical expenses when she accepted medical treatment. The fact that plaintiff had contracted with a health insurance company to compensate her for her medical expenses, or to pay directly the health care provider on her behalf, does not alter the fact that she was obligated to pay those expenses.”); Samsel v. Allstate Ins. Co., 59 P.3d 281, 286 (Ariz. 2002) (quoting Hollister v. Govt. Employees Ins. Co., 224 N.W.2d 164, 166 (Neb. 1974)) (“ ‘incurred’ or ‘actually incurred’ language does not bar an insured who became liable for expenses from recovery simply because ‘of the availability of collateral means of discharging his liability therefor so as to have relieved him of the need to pay the charges personally’ ”); Coconino County v. Fund Adminstrs. Assn. Inc., 719 P.2d 693, 696 (Ariz. App. Div. 1 1986) (injured insured “incurred” medical expenses despite the availability of other medical coverage because insured agreed at admittance that he was the ultimate guarantor of all treatment costs);Am. Indem. Co. v. Olesijuk, 353 S.W.2d 71, 72 (Tex. App.—San Antonio 1961) (where insured “contracted for [medical] services with private persons and institutions and became liable for the payment of the charges therefor, such charges were incurred by him and [insurer] became liable to him for such expenses so incurred” despite payment of charges by insured’s employer).
¶18 Insurance commentators have likewise recognized this principle. Appleman on Insurance states:
In the ordinary situation, and in the absence of any policy provision to the contrary, it would be a matter of indifference to any insurer how many policies of like type an insured might carry, and duplicate reimbursement would be permissible.... Instead of expending those funds for premiums [on duplicate insurance], he could put them in a savings account and have them available for use in an emergency. None could then criticize their availability.
John Alan Appleman & Jean Appleman, Insurance Law and Practice vol. 8A, § 4902.50,267 (West 1981) (emphasis added) (citing Phoenix Ins. Co. v. Leonard, 119 So. 2d 217 (Ala. 1960) (holding that insured’s attempt to collect for the same injuries under other insurance policies was irrelevant because the policy at issue did not contain a coinsurance or pro rata clause, and that where the insured obtained the money to pay the medical bills before the defendant insurer paid the claim was immaterial)). See also Couch on Insurance vol. 11, § 158:12 (Lee R. Russ & Thomas F. Segalla, eds., 3d ed., Thompson West 1997) (collecting cases). Thus, under a common sense understanding of the plain language of the policy, Winter “incurred” related medical expenses at the time of service that were subject to payment, without any exclusion or set-off by the policy.
¶19 State Farm argues that this conclusion conflicts with our prior jurisprudence in several ways, starting with the reasonable expectations doctrine. “The reasonable expectations doctrine provides that the objectively reasonable expectations of insurance purchasers regarding the terms of their policies should be honored notwithstanding the fact that a painstaking study of the policy would have negated those expectations.” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 42, 354 Mont. 15, 221 P.3d 666 (quotation omitted). This doctrine was created as a means to protect consumers from confusing or unclear contract language based on the recognition that “ ‘most insurance contracts, rather than being the result of anything resembling equal bargaining between the parties, are truly contracts of adhesion.’ ” Giacomelli, ¶ 42 (quoting Couch on Insurance vol. 2, § 22:11,22-23). The doctrine is not a means of protecting the insurer, who drafted the contract language, from its responsibility to provide coverage pursuant to the contract. Just as “[t]he doctrine of reasonable expectations does not apply to create coverage where the terms of the insurance policy clearly demonstrate an intent to exclude such coverage,” Babcock, ¶ 18 (quotation omitted); Fisher v. State Farm Mut. Auto. Ins. Co., 2013 MT 208, ¶ 20, 371 Mont. 147, 305 P.3d 861, the doctrine of reasonable expectations cannot create an exclusion from coverage where the terms of the insurance policy do not clearly demonstrate an intention to exclude such coverage. To hold otherwise would be to disregard the requirement that limitations be stated clearly and unequivocally. See Christensen, ¶ 27.
¶20 State Farm also argues that Winter has been made whole. The made-whole doctrine was established by this Court in 1977 “to be applied in insurance subrogation cases.” Swanson v. Hartford Ins. Co., 2002 MT 81, ¶ 15, 309 Mont. 269, 46 P.3d 584 (citing Skauge v. Mt. States Tel. and Tel. Co., 172 Mont. 521, 565 P.2d 628 (1977)). The doctrine requires “that an insured be ‘made whole’ before an insurer [can] assert its subrogation rights.” Swanson, ¶ 15. This doctrine is inapplicable here, where the insurer’s obligation to pay the insured according to the plain language of the policy is the issue. We have never extended the made-whole doctrine to a dispute regarding the enforceability of a nonduplication or exclusion provision, and we decline to do so here.
¶21 State Farm argues that our conclusion conflicts with our holdings that prohibited a double recovery for the insureds in Newbury and Conway. This argument necessarily overlooks the undisputed fact that the State Farm policy contains no double recovery exclusion or limitation, which sets this case apart from the contract provisions at issue in Newbury and Conway. Although our holdings in those cases barred a double recovery, we have never declared as a general principle that an insured may never recover duplicate payments under separate insurance policies. In fact, the law recognizes that duplicate payments are possible. Section 33-23-203(2), MCA, provides that:
A motor vehicle liability policy [including med pay coverage pursuant to § 33-23-204(2), MCA] may also provide for other reasonable limitations, exclusions, reductions of coverage, or subrogation clauses that are designed to prevent duplicate payments for the same element of loss under the motor vehicle liability policy... .
(Emphasis added.) This section authorizes insurers to add exclusions, nonduplication provisions, and subrogation clauses in the policy in order to “prevent duplicate payments for the same element of loss under the motor vehicle liability policy.” By recognizing that such limitations may be included in a policy, it is implicit that without such limitations duplicate payments are possible.
¶22 Our cases concluding that double recovery would result in a prohibited windfall to the insured have dealt with express exclusions or other limiting language in a policy or agreement. When the insured challenged the policy language, we were required to determine whether the express limitation was enforceable pursuant to public policy or the doctrine of reasonable expectations. In Newbury, the insured carried two automobile insurance policies with State Farm, each with med pay coverage up to $5,000. The policies stated that coverage was not available “to the extent workers’ compensation benefits are required to be payable.” Newbury, ¶ 9. Newbury was injured while on the job in an accident otherwise insured by his med pay coverage. Workers’ compensation paid $17,230.00 toward Newbury’s medical expenses, and State Farm paid the remaining $1,175.80. Newbury, ¶¶ 8, 10. Newbury brought suit seeking the full $10,000 of stacked med pay coverage. He argued that the workers’ compensation limitation in the policy was in violation of public policy and therefore unenforceable. Newbury, ¶ 11. We determined that the phrase “required to be payable” was clear and unambiguous, and the express limitation preventing duplicate recovery when medical expenses were paid by workers’ compensation “did not defeat coverage and render any coverage State Farm promised to provide illusory.”Newbury, ¶¶ 20,27. We also concluded that the workers’ compensation limitation did not violate public policy by violating Newbury’s reasonable expectations of coverage because “expectations that are contrary to a clear exclusion from coverage are not objectively reasonable.” Newbury, ¶ 35. See also Scheafer v. Safeco Ins. Co. of Ill., 2014 MT 73, 374 Mont. 278, 320 P.3d 967 (upholding “other insurance” exclusion and excess clause in med pay coverage against a challenge that the exclusion acted as prohibited de facto subrogation); Infinity Ins. Co. v. Dodson, 2000 MT 287, 302 Mont. 209, 14 P.3d 487 (where “policy unquestionably provide[d] an absolute cap of $50,000 in the event more than one insured is found hable for an accident,” the term “accident” was not ambiguous and the insurer’s payment limit of $50,000 where two insureds were hable for one accident did not violate state law requiring a minimum of $50,000 coverage per accident, per vehicle rather than per insured). None of these cases are controlling here because an express limitation does not exist in State Farm’s pohcy and, as we have previously explained, subrogation and the reasonable expectations doctrine are not apphcable.
¶23 In Conway, the insured was involved in a motor vehicle accident and received treatment at Benefis Hospital. Conway had health care coverage through TRICARE and med pay coverage through his automobile insurance carrier, Kemper. TRICARE had a preferred provider agreement (PPA) with Benefis wherein the provider agreed to accept a defined “reimbursement rate” as the only payment for services and waive the remaining charges. Conway, ¶ 6. TRICARE, as a benefits program offered through the government, operates as a secondary payer similar to Medicaid and Medicare. TRICARE paid $662.74to Benefis in full satisfaction of Conway’s total treatment costs of $2,073.65. Six days later, Benefis received payment of $1,866.29 from Kemper, from which Benefis reimbursed TRICARE’s $662.74 payment in full. Conway, ¶ 7. Conway filed suit against Benefis seeking to recover the $1,203.55 that Benefis received from Kemper over and above the TRICARE reimbursement rate. Conway, ¶ 8. Conway alleged Benefis breached the PPA by accepting payment from Kemper in excess of the TRICARE reimbursement rate. Conway, ¶ 33. We concluded that the PPA did not prevent Benefis from accepting a greater amount from the responsible insurer to settle the account because it only applied when payment was made by TRICARE. Conway, ¶ 32. We also concluded that this result complied with the doctrine of reasonable expectations because where Conway’s treatment costs were paid in full, he received the coverage he reasonably expected — payment of his medical expenses. Conway, ¶¶ 34-35.
¶24 In Harris v. St. Vincent Healthcare, 2013 MT 207, 371 Mont. 133, 305 P.3d 852, we reached a similar result on a consolidated appeal. Two different plaintiffs had each been injured in separate automobile accidents. Their respective medical expenses were paid directly to the providers by the at-fault tortfeasors’ automobile insurers. St. Vincent Healthcare, ¶¶ 4-5. Both plaintiffs were also members of a BCBS health plan at the time of their injuries. BCBS had entered into a PPA agreement with the medical providers the plaintiffs had visited whereby the providers agreed to a discounted reimbursement rate for services provided to BCBS insureds. St. Vincent Healthcare, ¶ 6. The plaintiffs filed suit alleging that the providers were only entitled to payment up to the maximum PPA reimbursement rate under the BCBS policy even though payment was made by different insurers, and that the difference should be remitted to them personally. St. Vincent Healthcare, ¶ 7. We relied on our holding in Conway to determine that the providers were only bound by the discounted reimbursement rate when BCBS was the insurer paying for the services, and that the providers did not breach any contract in retaining payment in excess of this amount. St. Vincent Healthcare, ¶¶ 25-27.
¶25 State Farm points to dicta in Conway, where we stated:
Conway is no more entitled to pocket excess medical payments here than he would be under the circumstances in Newbury, or any other situation in which all of his medical expenses are paid by his insurer under its medical payments coverage.... [T]he basic premise [is] that medical payments coverage is for the payment of medical expenses only; it does not provide for the payment of additional or excess sums to the insured.
Conway, ¶ 35. Viewed in isolation, this statement supports State Farm’s argument, but the analysis preceding this conclusion demonstrates its inapplicability here. In both Conway and Newbury the insureds sought to recover excess sums despite the fact that the insurance policy clearly did not provide a mechanism for such recovery. Conway attempted to recover from the medical provider, not the insurer, funds paid on his behalf for services rendered based on a contract to which he was not a party. Newbury sought a double payment by rendering an express exclusion unenforceable. Our conclusion that Conway was not entitled to pocket excess sums relied on our analysis of the reasonable expectations doctrine in Newbury, where we concluded that it was not a reasonable expectation for an insured to expect payment of additional sums after his expenses are paid when the insurance policy clearly excludes such payment. Conway, ¶¶ 34-35. As noted, the reasonable expectations doctrine is not at issue here. We similarly relied upon this language from Conway in Van Orden v. United Services Automobile Association, 2014 MT 45, ¶ 21, 374 Mont. 62, 318 P.3d 1042, to conclude that, under a made-whole analysis, an insured was not entitled to double recover for property damages when medical coverage was insufficient. Like Conway and Newbury, Van Orden is distinguishable from the present case because the insured did not seek to collect under the plain terms of the policy. Rather, Van Orden sought to obtain duplicate payment of property damages from two separate insurance policies because the medical payments coverage was insufficient to cover all his medical expenses. Van Orden, ¶¶ 6-9. There, we declined to extend the made-whole doctrine to allow an insured to recover twice for one type of damages in order to cover a separate type of loss when the policies clearly provided for separate coverage limits and the insured could not demonstrate any right to recover medical expenses under property insurance coverage. Van Orden, ¶ 21.
¶26 While we declined to approve the requested duplicate payment to the insureds as a “windfall” in the preceding cases, we did not hold that a duplicate recovery was prohibited in all cases, and thereby eschew the law of contract. “The fundamental tenet of modem contract law is freedom of contract; parties are free to mutually agree to terms governing their private conduct as long as those terms do not conflict with public laws "Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20, 318 Mont. 103, 79 P.3d 250; see also Gibbons v. Huntsinger, 105 Mont. 562, 573, 74 P.2d 443, 449 (1937) (“Freedom of contract is one of the fundamental liberties of the individual....”). We find no basis in contract law, insurance law, or public policy for a blanket rule prohibiting duplicate insurance coverage when the parties have not expressly agreed to such a limitation and the insured has paid for the coverage.
¶27 Other jurisdictions have similarly determined that the prohibition on double recovery does not apply in situations where an insured purchases separate policies, paying multiple premiums, for the same coverage (provided there is no express limitation on such recovery in the policies). The Idaho Supreme Court noted that “double recovery” is ordinarily used in the context of tort actions to prevent a plaintiff from satisfying a single judgment multiple times against different defendants. Linn v. N. Idaho Dist. Med. Serv. Bureau, 638 P.2d 876, 884 (Idaho 1981). Such a restriction does not apply in the context of contractual relationships because payment on each policy is “made pursuant to a contractual obligation incurred for a premium paid.” Linn, 638 P.2d at 884. The court in Linn also cited several other jurisdictions for the proposition that “there is no legal or policy reason why an insured should not be allowed to contract with insurance companies for double or multiple medical coverage.” Linn, 638 P.2d at 884. One such jurisdiction noted:
there is no public policy which dictates a single insurance recovery for medical payments. A person may bargain with as many insurance companies as he pleases for the payment of medical expenses incurred by him. This does not result in any unfairness to the multiple insurers. Each insurer receives a premium which we may assume is computed upon the basis that the insurer alone will be obligated to pay the medical expenses of the insured and not simply the excess or a pro rata proportion of the expense with other insurers. As we have already noted, if it were the intention to so limit liability, it is reasonable to assume that the insurer would have included an excess or pro rata clause in the section of its policy on medical expense coverage.
Heis v. Allstate Ins. Co., 436 P.2d 550, 552 (Or. 1968).
¶28 We can only interpret the policy as it is written. We are not at liberty to add an exclusion to coverage based on the insurer’s general desire to preclude duplicative payments to an insured.
Where plaintiff has an uncoordinated no-fault insurance contract with defendant that provides no limitation on plaintiffs right to recover from defendant in the context of duplicate insurance coverage [the defendant does not have] the right to refuse payment to plaintiff where plaintiffs injuries fall within the coverage of her policy with defendant.
Shanafelt, 552 N.W.2d at 678. Based on the plain language of the policy, using the common sense meaning of the term “incurred,” there is no limitation that prevents Winter from receiving a duplicate payment for medical expenses under separately purchased, uncoordinated insurance policies.
¶29 2. If the District Court erred by not granting summary judgment to Winter, is Winter entitled to costs, interest, and attorney fees?
¶30 As the District Court denied Winter’s motion for summary-judgment, it also denied his request for costs, interest, and attorney fees. On appeal, Winter asks us, in the event he prevails on his appeal, to award costs, interest, and attorney fees. State Farm argues that should we find in favor of Winter, we should remand this question to the District Court, though it cites no authority for why remand would be necessary other than the basic argument that “the District Court did not first rule upon those issues.”
¶31 Montana follows the American Rule regarding attorney fees where each party is ordinarily required to bear his or her own expenses absent a contractual or statutory provision to the contrary. However, there are several equitable exceptions to this rule. Mt. W. Farm Bureau Mut. Ins. Co. v. Brewer, 2003 MT 98, ¶ 14, 315 Mont. 231, 69 P.3d 652. An equitable award of attorney fees may be discretionary, requiring a lower court to first rule upon the issue, such as an award under § 27-8-313, MCA, which allows an award of fees when the court deems it “necessary or proper.” Brewer, ¶ 17. However, Winter does not seek a discretionary award of attorney fees. Rather, he bases his claim on the insurance exception to the American Rule. In Brewer, ¶ 36, we held that “an insured is entitled to recover attorney fees, pursuant to the insurance exception to the American Rule, when the insurer forces the insured to assume the burden of legal action to obtain the full benefit of the insurance contract.” Such an award is not discretionary, and as such does not require a lower court to consider the issue in the first instance. We hold that Winter is entitled to attorney fees as a matter of law under the insurance exception because he was forced to pursue legal action in order to obtain the full benefit of the insurance contract.
¶32 An award of prejudgment interest is likewise not discretionary. A prevailing party is entitled to prejudgment interest pursuant to § 27-1-211, MCA, if (1) an underlying monetary obligation exists, (2) the amount of recovery is capable of being made certain by calculation, and (3) the right to recover the obligation vests on a particular day. New Hope Lutheran Ministry v. Faith Lutheran Church, 2014 MT 69, ¶ 70, 374 Mont. 229, 328 P.3d 586. There is no dispute over the amount of medical expenses Winter requested under his med pay coverage, and the underlying obligation to pay the claim arose upon submission of the claim. Further, entitlement to post-judgment interest is a statutory right pursuant to § 25-9-205, MCA. Winter is therefore entitled, as a matter of law, to pre- and post-judgment interest.
¶33 Finally, Winter, as the prevailing party, is also entitled to costs pursuant to M. R. Civ. P. 54(d) and § 25-10-101(3), MCA. Upon remand, the District Court will consider the correct amount of fees, costs, and interest to which Winter is entitled.
¶34 We note that Winter’s Complaint requested punitive damages based on a violation of the UTPA. However, he does not present this request in his briefing to this Court or request remand to the District Court for determination of whether such an award is appropriate. We therefore view his request for punitive damages as waived.
¶35 Reversed and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, BAKER and WHEAT concur.
This paragraph of the State Farm policy, referencing “other medical payments coverage,” is not raised as an exclusion or a defense to the medical payments claimed by Winter, and thus we do not address it further.
The made-whole doctrine could be relevant in the present case to the extent BCBS would seek subrogation of payments it had expended on Winter’s behalf from State Farm, or vice versa. No party has raised the issue of subrogation rights as between BCBS and State Farm, and we do not address the same. Likewise, because we reach our conclusion based on the plain language of the contract, we need not address Winter’s alternate argument that the made-whole doctrine should be applied to allow recovery of his BCBS premiums.
|
[
-33,
14,
-7,
-52,
51,
-21,
-29,
-7,
-16,
23,
19,
35,
59,
13,
0,
9,
12,
-19,
26,
0,
-34,
-33,
6,
-6,
-70,
-26,
12,
-30,
-14,
5,
36,
-35,
-4,
-41,
-62,
30,
-25,
51,
-24,
20,
31,
-22,
4,
9,
-9,
-10,
4,
38,
42,
-12,
35,
-45,
-62,
-34,
77,
32,
44,
53,
-60,
-12,
-12,
-1,
73,
33,
38,
-3,
13,
42,
8,
112,
-38,
0,
-7,
7,
-23,
-50,
3,
-1,
-51,
-23,
35,
16,
4,
-24,
55,
16,
-44,
-22,
-27,
-7,
-55,
-10,
30,
-20,
-20,
47,
-11,
-30,
-12,
83,
-11,
-17,
39,
31,
-19,
1,
32,
-20,
-12,
14,
8,
7,
-28,
21,
-9,
-17,
23,
-2,
13,
30,
-11,
-8,
22,
26,
7,
11,
9,
20,
-24,
-25,
0,
-1,
21,
64,
-37,
-15,
-12,
-72,
-1,
52,
16,
-23,
-26,
-16,
75,
42,
33,
-88,
30,
-3,
8,
54,
-4,
-89,
0,
-4,
-23,
22,
49,
-34,
65,
-22,
-39,
23,
36,
31,
11,
71,
14,
-11,
50,
-62,
13,
-73,
10,
29,
23,
-31,
-16,
13,
8,
36,
16,
33,
-44,
23,
-6,
23,
20,
-80,
8,
-29,
-20,
-26,
1,
16,
3,
29,
43,
24,
-9,
-34,
-25,
-25,
18,
-27,
33,
-19,
30,
19,
15,
-44,
0,
-50,
-3,
14,
7,
-89,
-72,
-28,
7,
13,
-10,
-31,
-37,
-28,
-25,
-43,
-17,
-24,
-25,
-8,
26,
48,
-26,
-19,
5,
-30,
35,
48,
9,
-1,
-15,
-23,
35,
-25,
-31,
16,
-22,
-19,
6,
-55,
42,
-14,
7,
-22,
9,
-59,
-85,
12,
4,
55,
14,
58,
26,
4,
-3,
-2,
60,
22,
-1,
-25,
11,
-40,
-5,
-40,
-12,
4,
21,
66,
20,
35,
13,
-68,
-30,
5,
12,
-6,
7,
14,
22,
-72,
27,
-6,
-16,
-26,
41,
-34,
-67,
-9,
18,
7,
35,
81,
-1,
-45,
17,
-34,
-7,
14,
10,
-14,
-76,
-3,
36,
-11,
-7,
-38,
24,
-15,
16,
-10,
-18,
4,
25,
13,
-16,
-73,
-22,
-9,
-59,
-15,
-29,
25,
-4,
-54,
-4,
56,
79,
24,
24,
57,
1,
-6,
-27,
34,
55,
23,
7,
10,
-65,
-10,
10,
-12,
-11,
15,
28,
-8,
-45,
37,
4,
-19,
-14,
-9,
-45,
-1,
20,
35,
-81,
85,
-1,
14,
-4,
-45,
-14,
-24,
-52,
3,
-23,
-19,
30,
-66,
-22,
-50,
24,
33,
-25,
-23,
7,
52,
24,
0,
58,
20,
-28,
-11,
-56,
-42,
-64,
6,
82,
-28,
37,
-1,
29,
-40,
86,
-21,
-64,
8,
-41,
-32,
-4,
5,
-5,
44,
27,
-11,
-38,
-40,
-6,
17,
-11,
-50,
25,
1,
2,
33,
-55,
21,
27,
-42,
-31,
30,
21,
-33,
-46,
-75,
-4,
49,
12,
29,
31,
-27,
-42,
18,
15,
13,
49,
4,
3,
-40,
2,
-4,
-19,
26,
14,
-33,
-10,
-67,
-39,
-15,
-34,
-2,
0,
25,
-19,
37,
12,
-8,
-2,
22,
19,
41,
29,
-4,
-53,
-59,
-1,
60,
-41,
-5,
-34,
4,
-39,
-48,
3,
73,
-49,
28,
7,
17,
-53,
-16,
-12,
-13,
2,
12,
-8,
-46,
-10,
-10,
-25,
-53,
18,
-41,
39,
-67,
27,
-84,
40,
24,
20,
22,
25,
-1,
-30,
-5,
51,
14,
-18,
-5,
-49,
-17,
-32,
-52,
0,
17,
-1,
-1,
44,
14,
34,
-1,
12,
-27,
49,
2,
32,
-9,
-1,
48,
2,
-27,
18,
-60,
8,
9,
65,
0,
33,
-39,
10,
-4,
34,
2,
21,
-8,
66,
9,
-11,
83,
-28,
27,
27,
-6,
59,
-21,
36,
-42,
-27,
2,
-2,
-28,
-34,
-44,
-30,
-36,
-46,
-23,
-28,
28,
-19,
-31,
-41,
1,
37,
-45,
22,
-50,
8,
8,
-48,
62,
6,
9,
0,
-37,
-35,
20,
-24,
39,
-33,
22,
57,
-18,
-8,
64,
-7,
7,
-3,
24,
25,
-42,
5,
-91,
-44,
-4,
2,
-6,
-28,
-2,
27,
16,
10,
21,
-37,
-20,
-56,
-14,
34,
-32,
53,
-78,
-31,
-8,
43,
53,
-54,
-24,
9,
-51,
44,
6,
-13,
-6,
62,
-21,
-12,
-84,
-2,
76,
-12,
-16,
-47,
14,
19,
-5,
-29,
10,
-13,
-31,
-47,
-14,
-11,
-39,
41,
-33,
-23,
0,
79,
-11,
29,
23,
52,
47,
-15,
42,
12,
57,
-11,
-23,
17,
39,
-66,
-30,
-12,
-21,
26,
-53,
3,
22,
-30,
-12,
-1,
24,
-9,
29,
-29,
-28,
19,
-9,
10,
-24,
-12,
30,
-39,
-7,
29,
81,
20,
-6,
-42,
12,
31,
44,
-2,
18,
-18,
-13,
-8,
-51,
-12,
12,
-26,
-35,
34,
5,
-4,
24,
-51,
3,
47,
0,
-25,
18,
31,
-32,
9,
10,
76,
83,
99,
9,
-54,
17,
-57,
29,
14,
-5,
21,
-3,
-6,
50,
-48,
-42,
44,
-13,
40,
-28,
8,
11,
25,
47,
56,
27,
21,
20,
-36,
-31,
11,
71,
11,
-6,
51,
-36,
28,
-51,
-34,
-44,
17,
-1,
-3,
-6,
-73,
-10,
3,
19,
2,
-58,
13,
63,
25,
-82,
2,
-7,
9,
29,
63,
16,
3,
40,
25,
5,
68,
2,
-8,
16,
99,
21,
17,
-35,
45,
1,
12,
-17,
-39,
37,
-27,
3,
9,
0,
-46,
-19,
31,
16,
-29,
-13,
50,
-15,
-29,
-54,
-10,
49,
-20,
3,
41,
75,
-38,
-18,
64,
33,
-27,
62,
-18,
-1,
-13,
14,
-6,
-42,
-48,
-25,
38,
55,
68,
-28,
16,
-11,
20,
-14,
-33,
9,
-52,
71,
34,
-14,
0,
-2,
-49,
11,
-24,
72,
20,
23,
-37,
16,
20,
-19,
34,
-34,
19,
39,
-35,
50,
-1,
-8,
-61,
-9,
-100,
36,
-24,
-31,
-2,
-43,
-11,
-23,
-69,
28,
4,
-26,
-11,
24,
24,
-17,
-19,
71,
-29,
-43,
-67,
6,
23,
-40,
6,
-3,
-11,
45,
-32,
10,
11,
4,
-26,
21,
27,
-10,
-13,
25,
31,
-14,
15,
26,
31,
8,
10,
88,
-4,
-44,
-40,
-16,
-58,
0,
69,
28,
38,
-21,
-5,
-49,
-2,
-69,
-62,
3,
26,
6,
-37,
29,
8,
-51,
12,
20,
53,
45,
-6,
-42,
-27,
-2,
7,
22,
47,
1,
-61,
-36,
-8,
16,
11,
-21,
29,
0,
39,
8,
-10,
29,
-36,
-36,
-44,
23,
-68,
3,
-38,
-18,
-47,
55,
9,
29,
87,
20,
18,
-6,
35,
4,
22,
-28,
38,
-29,
9,
12,
-31,
22,
-23,
66,
42,
19,
10,
-37,
-20,
-47,
-33,
12,
-19,
-27,
0,
-22,
-25,
5,
72,
8
] |
OPINION AND ORDER
¶1 San Diego Gas & Electric Co. (San Diego) has petitioned this Court to exercise supervisory control in relation to a proceeding pending before the Ninth Judicial District Court, Toole County, denominated NaturEner USA, LLC v. San Diego Gas & Electric Co., Cause No. DV-13076. San Diego requests that this Court determine that the District Court is proceeding under a mistake of law based on its April 28, 2014 Order denying San Diego’s Motion to Dismiss or Stay. We grant the petition.
BACKGROUND
¶2 The underlying action arose as the result of a contractual dispute between San Diego and several NaturEner wind-energy companies (collectively, NaturEner). San Diego is a California utility, and NaturEner is a group of Delaware limited liability companies headquartered in California. In January 2012, San Diego and NaturEner entered into two contracts. The first is an agreement (Purchase Agreement) for San Diego to purchase renewable energy credits and electricity from NaturEner. The credits and electricity are generated at the Rim Rock wind farm in Glacier and Toole counties, Montana. The Purchase Agreement contains the following clauses:
This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law.
THE PARTIES HEREBY CONSENT TO CONDUCT ALL DISPUTE RESOLUTION, JUDICIAL ACTIONS OR PROCEEDINGS ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONJUNCTION WITH, OUT OF, RELATED TO OR ARISING FROM THIS AGREEMENT IN THE CITY OF SAN DIEGO, CALIFORNIA.
(Emphasis in original.)
¶3 The second contract (Contribution Agreement) requires San Diego to invest approximately $285 million to acquire an equity interest in the Rim Rock wind farm. The Contribution Agreement contains a clause specifying that New York law applies in the event of a dispute, and that “THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK ... .” (Emphasis in original.) In both the Purchase Agreement and Contribution Agreement, the parties also agreed to certain “Avian Conditions” for the protection of birds and bats that might be harmed through operation of the wind farm. The parties later amended the Contribution Agreement through a separate “Avian Conditions Agreement.”
¶4 On December 19, 2013, San Diego filed suit in California's San Diego Superior Court, seeking a declaration that NaturEner had not satisfied the “Avian Conditions” of the agreements. The next day, NaturEner filed a nearly identical suit in Montana’s Ninth Judicial District Court, seeking a declaration that it had satisfied the “Avian Conditions,” and alleging breach of the Contribution Agreement and breach of the covenant of good faith and fair dealing. San Diego filed a Motion to Dismiss or Stay, which the District Court denied.
¶5 San Diego then petitioned this Court for a writ of supervisory control, or in the alternative, a writ of review. This Court subsequently ordered that a response be filed by NaturEner, which has been filed. The issue raised in San Diego’s petition is whether the District Court erred as a matter of law by accepting jurisdiction over the parties’ dispute in light of the forum selection clause contained in the Purchase Agreement, as well as forum non conveniens and principles of comity.
DISCUSSION
¶6 This Court “has general supervisory control over all other courts.” Mont. Const, art. VII, § 2(2). However, “Supervisory control is an extraordinary remedy, reserved for extraordinary circumstances.” Stokes v. Mont. Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citing Hegwood v. Mont. Fourth Jud. Dist. Ct., 2003 MT 200, ¶ 6, 317 Mont. 30, 75 P.3d 308). Acceptance of supervisory control is decided on a case-by-case basis and is “limited to cases involving purely legal questions, in which the district court is proceeding under a mistake of law causing a gross injustice or constitutional issues of statewide importance are involved.” Stokes, ¶ 5 (citing M. R. App. P. 14(3)). We may assume supervisory control to direct the course of litigation if the district court “is proceeding based on a mistake of law, which if uncorrected, would cause significant injustice for which appeal is an inadequate remedy.” Stokes, ¶ 5 (citing Simms v. Mont. Eighteenth Jud. Dist. Ct., 2003 MT 89, ¶ 18, 315 Mont. 135, 68 P.3d 678).
¶7 We conclude that this case is appropriate for the exercise of supervisory control. The issues raised by San Diego are purely legal, involving questions of contract interpretation and judicial expediency. Requiring an appeal from final judgment could result in inconsistent judgments from multiple states’ courts, protracted and redundant litigation, and undue burden on state resources. We have previously explained that promoting judicial economy and avoiding procedural entanglements are adequate grounds for this Court to issue a writ of supervisory control. Truman v. Mont. Eleventh Jud. Dist. Ct., 2003 MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654 (citation omitted). Therefore, we will address the issues raised in San Diego’s petition that we conclude are dispositive — the nature of the forum selection clause contained in the Purchase Agreement and forum non conveniens.
A. Choice of Law Provision
¶8 “Where a contract contains both a choice of law clause and a forum selection clause, we first determine whether the choice of law clause is valid.” Polzin v. Appleway Equip. Leasing, Inc., 2008 MT 300, ¶ 13, 345 Mont. 508, 191 P.3d 476 (citation omitted). We rely on the Restatement (Second) of Conflict of Laws, §§ 6, 187-88 (1971) in making this determination. Polzin, ¶ 14. A contractual choice of law clause is valid unless three factors can be established: “(1) but for the choice of law provision, Montana law would apply under § 188 of the Restatement', (2) Montana has a materially greater interest in the particular issue than the parties [sic] chosen state; and (3) application of the chosen state’s law would contravene a Montana fundamental policy.” Polzin, ¶ 14 (citation omitted).
¶9 The Purchase Agreement states that California law governs the rights and duties of the parties in this case. Neither San Diego nor NaturEner dispute the validity of the choice of law clause. We likewise see no reason that application of California law would contravene Montana’s fundamental policy, regardless of the outcome of an analysis under factors (1) and (2). Accordingly, we accept the choice of law clause as valid and apply California law in interpreting the forum selection clause contained in the Purchase Agreement. See Polzin, ¶ 19 (applying Washington law in determining that the forum selection clause was valid and that Montana venue was inappropriate under the terms of the contract).
B. Forum Selection Clause
¶10 In California, forum selection clauses are valid and will be given effect in the court’s discretion and in the absence of a showing that enforcement would be unreasonable. Smith, Valentino & Smith, Inc. v. Super. Ct. of Los Angeles Cnty., 551 P.2d 1206, 1209 (Cal. 1976). To prove that enforcement would be “unreasonable,” “ ‘the party assailing the clause must establish that ... the forum selected would be unavailable or unable to accomplish substantial justice.' " Cal-State Bus. Prods. & Servs., Inc. v. Ricoh, 16 Cal. Rptr. 2d 417, 425 (Cal. Ct. App. 1993) (citations omitted) (emphasis in original). “[F]orum selection clauses [] ‘play[] an important role in both national and international commerce’ ” and “ ‘as a general rule should be welcomed.’77 America Online, Inc. v. Super. Ct., 108 Cal. Rptr. 2d 699, 707 (Cal. Ct. App. 2001) (citations omitted). “[B]oth the United States Supreme Court and the California Supreme Court have placed a heavy burden on a [party] seeking to defeat such a clause ...” Lu v. Dryclean-U.S.A. of Cal., Inc., 14 Cal. Rptr. 2d 906, 907 (Cal. Ct. App. 1992).
¶11 California courts construe forum selection clauses as either mandatory or permissive. Clauses containing “language of exclusivity” are held to be mandatory, while clauses that merely provide for submission to jurisdiction in a particular forum without requiring it are held to be permissive. Animal Film, LLC v. D.E.J. Prods., Inc., 123 Cal. Rptr. 3d 72, 76-77 (Cal. Ct. App. 2011). To qualify as mandatory, “the language within a forum selection clause must be clear and unambiguous in designating a forum as exclusive and mandatory.” CQL Original Prods., Inc. v. Natl. Hockey League Players’ Assn., 46 Cal. Rptr. 2d 412, 418-19 (Cal. Ct. App. 1995); Hunt v. Super. Ct., 97 Cal. Rptr. 2d 215, 219 fn.5 (Cal. Ct. App. 2000). California courts rely on the reasoning of federal courts when interpreting forum selection clauses, as do the parties in this case. See e.g. Smith, Valentino & Smith, Inc., 551 P.2d at 1208-09; Net2phone, Inc. v. Super. Ct., 135 Cal. Rptr. 2d 149, 152 (Cal. Ct. App. 2003); Olinick v. BMG Ent., 42 Cal. Rptr. 3d 268, 279-80 (Cal. Ct. App. 2006); Cal-State Bus. Prods. & Servs., Inc., 16 Cal. Rptr. 2d at 424-26. California federal law states that “[a] clause that specifies a venue with mandatory language will be enforced.” BrowserCam Inc. v. Gomez, Inc., 2008 U.S. Dist. LEXIS 82159 at *3 (N.D. Cal. Sept. 26, 2008). “[Mandatory forum selection clauses contain language such as ‘exclusive’ or ‘only,’ [but] permissive clauses do not preclude the action from being litigated in another court.” Softwareworks Group, Inc. v. IHosting, Inc., 2006 U.S. Dist. LEXIS 75989 at *7 (N.D. Cal. Oct. 4, 2006) (citation omitted).
¶12 In the present case, the District Court determined that the forum selection clause contained in the Purchase Agreement is permissive and does not require the parties to litigate in California. San Diego argues that this was error and that the forum selection clause is mandatory. San Diego focuses heavily on the use of the words “conduct all.” Such language, it maintains, establishes that “[t]he parties consented to the place of litigation, not simply to a court’s jurisdiction ....” In support, San Diego cites Paster v. Putney Student Travel, Inc., 1999 U.S. Dist. LEXIS 9194 (C.D. Cal. June 7, 1999). There, the forum selection clause provided: “ T agree and consent to the jurisdiction of the courts of the State of Vermont, with venue in Windham County, Vermont or the United States District Court for the District of Vermont, for the resolution of all legal matters concerning this agreement....’ ” Paster, 1999 U.S. Dist. LEXIS 9194 at *2. The court determined that common rules of contract interpretation required it to enforce the forum selection clause as mandatory. The court focused exclusively on the terms “the resolution of all legal matters” in reaching this conclusion. Paster, 1999 U.S. Dist. LEXIS 9194 at **9-10.
¶13 San Diego also analogizes to the following cases, which either interpreted their respective forum selection clauses as mandatory or indicated that they would have been enforced as mandatory absent other procedural issues: Marvin Kommel Prods. v. Lettergraphics Intl., Inc., 1984 U.S. Dist. LEXIS 22892 at *2 (S.D.N.Y. Oct. 10, 1984) (“‘Any and all suits for any and every breach of this Agreement must, at the sole option of Licensor, be instituted and maintained in any court of competent jurisdiction in the State of California, it being understood and agreed that the venue of such suit shall be in Los Angeles County, State of California.’ ”); Chandler Mgmt. Corp. v. First Specialty Ins. Corp., 2013 U.S. Dist. LEXIS 13417 at *3 (N.D. Tex. Jan. 31, 2013) (“ ‘The parties irrevocably submit to the exclusive jurisdiction of the Courts of the State of New York, and to the extent permitted by law the parties expressly waive all rights to challenge or otherwise limit such jurisdiction.’ ”); and Zeneca, Inc. v. Monsanto Co., 1996 Del. Ch. LEXIS 29 at *4 (Del. Ch. Mar. 7, 1996) (“ ‘MONSANTO hereby agree that any suit to enforce or compel the performance of any provision of this Agreement, [or] to obtain a remedy for any breach or violation of this Agreement... shall be brought in the United States District Court for the Northern District of Illinois, Eastern Division.’ ”).
¶14 The following forum selection clauses have also been held to be mandatory by California courts: Cal-State Bus. Prods. & Servs., Inc., 16 Cal. Rptr. 2d at 420 fn.4 (“ ‘[A]ny appropriate state or federal district court located in the Borough of Manhattan, New York City, New York shall have exclusive jurisdiction over any case of controversy arising under or in connection with this Agreement... .’ ”); Furda v. Super. Ct., 207 Cal. Rptr. 646, 648 fn.1 (Cal. Ct. App. 1984) (“ ‘Any controversy or claim arising out of or relating to this Agreement ... shall be litigated either in a state court for Ingham County, Michigan, or in the U.S. District Court for the Western District of Michigan.’ ”); Lu, 14 Cal. Rptr. 2d at 907 (“ ‘[A]ny and all litigation that may arise as a result of this Agreement shall be litigated in Dade County, Florida.’ ”); CQL Original Prods., Inc., 46 Cal. Rptr. 2d at 414 (“ ‘[A]ny claims arising hereunder shall, at the Licensor’s election, be prosecuted in the appropriate court of Ontario.’ ”).
¶15 NaturEner maintains that the forum selection clause contained in the Purchase Agreement is permissive. NaturEner argues that “[t]he word ‘consent’ connotes ‘acquiescence’ ... and lacks the compulsory connotation of a word like ‘shall.’ ” NaturEner and the District Court in its Order cite several cases as examples of forum selection clauses that have been held to be permissive. In BrowserCam Inc., 2008 U.S. Dist. LEXIS 82159 at **3-4, the forum selection clause provided: “ ‘Each party hereby agrees to jurisdiction and venue in the courts of the City of New York or the federal courts sitting therein, for all disputes and litigation arising under or relating to this Agreement ... .’ ” The court explained that because this clause did not contain language expressly designating New York as the exclusive venue, it was not mandatory and was merely offering consent to the jurisdiction of New York courts. Put another way, the “clause plainly means that ‘all disputes’ could be litigated in a New York court, not that they must be.” BrowserCam Inc., 2008 U.S. Dist. LEXIS 82159 at *5 (emphasis in original).
¶16 Similarly, in Softwareworks Group, Inc., 2006 U.S. Dist. LEXIS 75989 at **3-4, the forum selection clause provided:
“Each of the parties to this Note consents to the jurisdiction and venue of the courts of the state of New Jersey and the United States District Court for the District of New Jersey... with respect to any action relating to a claim, dispute or controversy arising out of or in connection with this Note....”
The court determined that this type of language “indicates consent to jurisdiction and venue in New Jersey, but does not mandate such jurisdiction and venue.” Softwareworks Group, Inc., 2006 U.S. Dist. LEXIS 75989 at * 8. The following forum selection clauses have likewise been held to be permissive by California courts: Animal Film, LLC, 123 Cal. Rptr. 3d at 75 (“ ‘THE PARTIES HERETO SUBMIT AND CONSENT TO THE JURISDICTION OF THE COURTS PRESENT IN THE STATE OF TEXAS IN ANY ACTION BROUGHT TO ENFORCE (OR OTHERWISE RELATING TO) THIS AGREEMENT.’ ”) (emphasis in original); Hunt Wesson Foods, Inc. v. Sup. Oil Co., 817 F.2d 75, 76 (9th Cir. 1987) (“ The coruts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract.’ ”); and Berg v. Mtc Elecs. Techs. Co., 71 Cal. Rptr. 2d 523, 527 (Cal. Ct. App. 1998) (“ ‘The company [MTC] has expressly submitted to the jurisdiction of the State of California and United States Federal courts sitting in the City of Los Angeles, California, for the purpose of any suit, action or proceedings arising out of this Offering.’ ”).
¶17 We conclude that the preceding authority establishes that the forum selection clause contained in the Purchase Agreement is mandatory in nature. NaturEner and the District Court incorrectly focus their respective analyses on the word “consent.” While they accurately conclude that clauses that merely consent to the jurisdiction of a particular court or courts are permissive, the forum selection clauses at issue in the cases cited by NaturEner and the District Court are readily distinguishable from the present one. Those cases all involved instances where the parties simply agreed that a particular court or courts would have jurisdiction over any or all disputes arising under a contract. In construing those provisions, the respective California courts were quick to point out that authorizing a particular court or courts to exercise jurisdiction is not the same as agreeing that no other court may exercise jurisdiction. Therefore, the possibility of litigating in other courts has not been foreclosed. This analysis makes sense because, as a practical matter, it is entirely possible for multiple courts to have the authority (jurisdiction) to hear any and all potential disputes that might arise under a contract. A permissive consent to jurisdiction clause, as construed by California courts, simply designates one or more of these courts explicitly without barring other possibilities.
¶ 18 In contrast, as San Diego notes, the present forum selection clause utilizes the phrase “conduct all.” This “conduct all” language is analogous in effect to the language that California courts have held to be mandatory, e.g. “[a]ny and all suits ... must... be instituted” and “[a]ny controversy ... shall be litigated.” Like the words “institute[]” and “litigateD,” “conduct” is a verb that relates to the taking of a definite action. The forum selection clause specifies that “all” such action is to be taken in San Diego. Certainly, the clause does not use the words “shall” or “must,” but it strains logic to its breaking point to argue that one could agree to “conduct all” litigation in San Diego but at the same time conduct it elsewhere. Although the clause contains the term “consent,” it is not drafted as a consent to jurisdiction clause. It is in the nature of a promise to litigate all disputes in a particular forum, as opposed to simply authorizing a particular court or courts to hear a dispute. Under a plain reading, the phrase “conduct all” specifically limits the parties’ litigation activities to a single forum (mandatory), and does not merely state that one court, among many, may exercise jurisdiction (permissive).
¶19 On the other hand, the forum selection clause contained in the Contribution Agreement (“THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK....”) is permissive. By submitting to the non-exclusive jurisdiction of any New York County court, the parties have authorized such courts to exercise jurisdiction but have not foreclosed the possibility of litigating elsewhere. NaturEner urges us to read this forum selection clause in conjunction with the forum selection clause contained in the Purchase Agreement to conclude that both are permissive. NaturEner argues that pursuant to Cal. Civ. Code § 1642, “[w]here, as here, ‘[sjeveral contracts relat[e] to the same matters,’ are ‘between the same parties,’ and address ‘substantially one transaction,’ they are ‘to be taken together.’ ” Therefore, according to NaturEner, these provisions “must be harmonized, rather than interpreted in a way that ‘render[s] some meaningless,’ ” citing Zalkind v. Ceradyne, Inc., 124 Cal. Rptr. 3d 105, 116 (Cal. Ct. App. 2011); accord §§ 28-3-202, -203, MCA.
¶20 While NaturEner accurately cites one of California’s canons of contract interpretation, it does not apply here. The Purchase Agreement and the Contribution Agreement were specifically drafted to contain separate choice of law clauses (California vs. New York) and separate forum selection clauses (San Diego vs. New York County). The rules of contract interpretation require courts to give effect to the mutual intentions of the parties, based, if possible, solely on the provisions of the contract. Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 627 (Cal. 1995). Indeed, “[t]he language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Cal. Civ. Code § 1638. Under the Purchase Agreement, San Diego and NaturEner agreed to conduct all litigation in California. We will not interpret this mandatory clause as permissive based on wholly distinct language contained in the Contribution Agreement.
¶21 Lastly on this point, NaturEner asks us to find that a mandatory forum selection clause violates Montana’s public policy and that San Diego waived its venue challenge by failing to raise it in its first appearance. We find neither of these arguments persuasive under the facts of this case and hold that the Purchase Agreement must be litigated in the San Diego Superior Court.
C. Forum Non Conveniens
¶22 Forum non conveniens is a common law doctrine that “allows a court to ‘resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.’ ” Haug v. Burlington N. R.R., 236 Mont. 368, 374, 770 P.2d 517, 521 (1989) (citation omitted). Under this doctrine, a court may decline jurisdiction and dismiss a case “when it believes that the action may be more appropriately and justly tried elsewhere.” Haug, 236 Mont. at 374, 770 P.2d at 521; Cook v. Soo Line R.R. Co., 2008 MT 421, ¶ 16, 347 Mont. 372, 198 P.3d 310.
¶23 San Diego argues that the District Court should have dismissed NaturEner’s action based on forum non conveniens for several reasons: witnesses and documents are more readily accessible in California; a Montana lawsuit would unduly burden Montana with a dispute between Californians regarding a California Contract; and California courts are more familiar with the California law governing the Purchase Agreement dispute. NaturEner, on the other hand, contends that the District Court properly concluded that Montana has a substantial interest in this case; Montana courts are fully capable of applying California law; Montana witnesses or a site visit to the Rim Rock wind farm might be necessary; electronic discovery practices make discovery equally efficient in Montana and California; and the dispute could be most expediently resolved in Montana.
¶24 Having already determined that the forum selection clause contained in the Purchase Agreement is mandatory and must be litigated in California, we believe that the related issues regarding the Contribution Agreement would be “more appropriately and justly tried” there as well. We have recognized that § 25-2-201(2) and (3), MCA, is closely related to the doctrine of forum, non conveniens, if not an outright codification. State ex rel. Burlington N. R.R. v. Dist. Ct., 270 Mont. 146, 153, 155, 891 P.2d 493, 498-99 (1995); Modroo v. Nationwide Mut. Fire Ins. Co., 2008 MT 275, ¶ 70, 345 Mont. 262, 191 P.3d 389. Section 25-2-201(3), MCA, provides: “The court or judge must, on motion, change the place of trial in the following cases: (3) when the convenience of witnesses and the ends of justice would be promoted by the change.” In Nutter v. Permian Corp., 224 Mont. 72, 74-75, 727 P.2d 1338, 1340 (1986) we explained that “[t]he possibility of conflicting results, multiple actions, and duplicate trials meets the statutory qualification of Section 25-2-201(3), MCA, for the convenience of witnesses and the promotion of the ends of justice.” Certainly, we have never construed § 25-2-201(3), MCA, as authorizing a district court to dismiss a case merely because it can be tried more conveniently in another state. Modroo, ¶ 70. However, the caselaw interpreting that statute is helpful to a forum non conveniens analysis.
¶25 Pursuant to Nutter, there is a strong possibility of inconsistent results here if mirror image trials are held in both Montana and California. As we have explained, “all matters should be addressed by one court and under one cause number, thus ehminating the prospect of conflicting rulings by two separate courts.” Yellowstone Cnty. v. Drew, 2007 MT 130, ¶ 19, 337 Mont. 346, 160 P.3d 557. Moreover, litigating duplicate actions in separate forums would constitute a substantial waste of time and judicial resources. Both San Diego and NaturEner are headquartered in California. San Diego presented evidence that during the District Court’s evidentiary hearing on the preliminary injunction, all of the parties’ fact witnesses were Californians. San Diego filed suit first in San Diego Superior Court, which is where we have determined the Purchase Agreement must be litigated. Accordingly, we believe it prudent to litigate the related issues concerning the Contribution Agreement there as well.
¶26 In sum, the circumstances warrant exercise of supervisory control in this case. The Purchase Agreement requires the parties to litigate all disputes, at least as they pertain to that contract, in San Diego. The District Court was proceeding in error to conclude otherwise. The Contribution Agreement involves similar issues and would be “more appropriately and justly tried” in the same forum to promote judicial expediency and prevent inconsistent judgments. The parties’ remaining arguments regarding comity need not be addressed.
¶27 IT IS HEREBY ORDERED that the Application for Writ of Supervisory Control is GRANTED.
¶28 IT IS FURTHER ORDERED that the District Court’s Order of April 28, 2014, denying San Diego’s Motion to Dismiss or Stay is VACATED. This matter is remanded to the District Court with instructions to DISMISS the action in accordance with this Opinion. ¶29 The Clerk of this Court is directed to provide copies of this Opinion and Order to all counsel of record and the Honorable Brenda R. Gilbert, Ninth Judicial District Court Judge, presiding.
DATED this 18th day of July, 2014.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON, SHEA, BAKER and WHEAT concur.
The San Diego Superior Court issued a ruling on May 22,2014, in Case No. 37-2013-00080682-CU-CO-CTL, determining that this forum selection clause is permissive. The court offered little analysis on this point, and its ruling is not binding in any event. The court did note, however, that even a permissive forum selection clause “is entitled to substantial weight.”
On July 2, 2014, San Diego provided this Court with a supplemental filing indicating that the San Diego Superior Court has scheduled the California trial for November 26,2014. The District Court, on the other hand, has scheduled the Montana trial for January 2, 2015.
|
[
-4,
-4,
9,
-11,
78,
-2,
53,
12,
12,
10,
-50,
43,
52,
19,
-33,
-75,
49,
16,
-4,
43,
7,
17,
88,
-43,
2,
-33,
44,
-52,
47,
-41,
2,
-118,
-84,
19,
-21,
10,
-63,
55,
14,
-32,
6,
-64,
71,
-66,
15,
-33,
-77,
-3,
18,
-36,
61,
46,
4,
-4,
-71,
-57,
-29,
35,
-7,
33,
-53,
-21,
49,
18,
13,
24,
-61,
-15,
15,
-16,
-25,
20,
34,
-45,
10,
9,
18,
38,
0,
-9,
0,
108,
-37,
-19,
5,
19,
9,
5,
0,
-19,
-46,
3,
-17,
34,
2,
47,
-27,
23,
-51,
80,
15,
-27,
35,
57,
23,
-3,
40,
-8,
75,
-30,
19,
52,
-80,
-15,
-25,
45,
8,
60,
-18,
-2,
-29,
-43,
-28,
18,
-9,
-5,
-21,
-28,
-19,
52,
2,
-19,
37,
4,
14,
-12,
-8,
39,
-7,
-2,
-29,
-12,
-7,
23,
13,
4,
63,
-20,
9,
-25,
8,
-19,
35,
79,
3,
-8,
-37,
-11,
56,
-17,
50,
1,
-45,
9,
-49,
-41,
54,
-25,
-20,
-27,
15,
10,
-11,
-32,
-35,
-56,
-31,
-4,
4,
-41,
-12,
18,
-25,
2,
19,
11,
10,
-7,
-15,
13,
11,
-94,
36,
1,
-22,
12,
-35,
-11,
29,
9,
-5,
-14,
47,
-30,
-35,
13,
42,
53,
23,
7,
23,
18,
-38,
-47,
-47,
25,
-18,
-15,
56,
-39,
60,
-67,
27,
-30,
-37,
-12,
51,
-31,
-2,
-21,
-34,
-1,
53,
18,
30,
-49,
15,
-1,
88,
-2,
27,
8,
-81,
-4,
7,
-15,
-14,
0,
-1,
-14,
-22,
-26,
1,
24,
19,
32,
-35,
-50,
-18,
-39,
23,
-11,
-40,
5,
-70,
24,
-73,
-76,
57,
36,
26,
5,
8,
64,
-33,
-18,
46,
-26,
0,
-54,
8,
26,
41,
-32,
32,
67,
-25,
36,
-20,
-32,
3,
48,
29,
-36,
35,
-15,
-21,
-40,
-39,
10,
-93,
-76,
21,
3,
28,
-27,
-21,
5,
-7,
0,
-43,
56,
44,
-21,
-68,
-34,
16,
5,
80,
10,
45,
20,
-12,
34,
-5,
10,
14,
-19,
8,
19,
-45,
-5,
0,
0,
-3,
68,
5,
-18,
-7,
12,
11,
44,
55,
24,
44,
-1,
36,
-10,
-35,
-2,
-54,
-29,
-47,
-38,
12,
-3,
-42,
-23,
-21,
6,
-4,
43,
-22,
-63,
-20,
8,
64,
12,
44,
32,
-40,
60,
-26,
-29,
-25,
-2,
-40,
-10,
-9,
3,
19,
-26,
24,
-24,
73,
42,
-38,
20,
-36,
-31,
63,
-30,
-83,
66,
-7,
-62,
-6,
-45,
-27,
1,
67,
5,
-33,
-32,
2,
18,
43,
-40,
-1,
-12,
20,
-27,
-21,
0,
-69,
-1,
24,
15,
-3,
-24,
5,
-13,
-87,
-17,
58,
-40,
-35,
-7,
-46,
23,
-113,
0,
-85,
40,
7,
-38,
17,
-16,
6,
45,
35,
14,
25,
-46,
-10,
15,
-7,
34,
49,
31,
-32,
68,
-4,
100,
-2,
61,
18,
-4,
10,
-26,
-17,
48,
69,
23,
-33,
-49,
47,
51,
29,
95,
-34,
46,
55,
2,
44,
-32,
-6,
11,
-12,
41,
-29,
19,
1,
-26,
-29,
-44,
70,
49,
60,
78,
-16,
-6,
22,
20,
19,
-18,
11,
-5,
36,
12,
24,
-27,
33,
31,
15,
20,
39,
3,
5,
-48,
-8,
-48,
27,
29,
-37,
25,
-28,
-18,
40,
57,
-54,
-27,
-10,
-16,
55,
-43,
18,
17,
45,
13,
-51,
-17,
58,
6,
40,
-38,
4,
35,
-4,
-5,
-25,
35,
-41,
8,
33,
22,
38,
-26,
1,
-45,
-37,
-12,
-5,
14,
-7,
35,
-22,
-3,
27,
-35,
-46,
34,
-65,
-36,
49,
49,
56,
20,
0,
35,
18,
0,
1,
14,
65,
-22,
-58,
-44,
31,
-28,
-56,
-55,
-1,
-28,
-48,
50,
0,
-50,
25,
0,
-59,
-2,
35,
-20,
-13,
8,
62,
-3,
46,
-8,
-64,
9,
-23,
4,
-76,
-70,
-38,
-8,
93,
18,
-16,
-18,
0,
18,
11,
39,
88,
-29,
43,
34,
-9,
-58,
14,
4,
-50,
-4,
-21,
-6,
37,
41,
-57,
-17,
-19,
-34,
40,
7,
25,
2,
-13,
7,
30,
-22,
-18,
-67,
-64,
-6,
28,
41,
52,
28,
19,
27,
11,
30,
-2,
43,
-34,
17,
26,
61,
-61,
-44,
-29,
-30,
1,
-43,
12,
-15,
38,
-17,
58,
1,
-2,
-40,
-24,
-33,
-12,
37,
-12,
7,
-6,
-15,
-31,
-17,
-44,
23,
19,
-25,
-43,
-22,
-36,
-44,
-1,
97,
25,
-42,
-5,
-41,
-16,
50,
18,
51,
4,
70,
-31,
46,
-26,
-15,
39,
-6,
76,
-37,
-10,
-73,
-30,
-27,
-3,
-50,
-120,
-13,
-93,
34,
-34,
-15,
8,
5,
-74,
5,
19,
26,
-96,
5,
11,
39,
-11,
9,
-7,
-11,
-38,
-71,
78,
-16,
20,
6,
-18,
-17,
29,
-27,
62,
-22,
-3,
-62,
-63,
11,
6,
-43,
-37,
5,
-34,
33,
37,
-24,
55,
-39,
35,
1,
9,
-80,
-1,
6,
35,
36,
27,
14,
16,
-1,
97,
-17,
-6,
53,
14,
-16,
24,
-26,
-14,
-14,
-25,
-3,
-1,
48,
6,
10,
19,
1,
58,
-18,
-49,
67,
75,
-38,
-11,
-47,
-48,
23,
-17,
-36,
-12,
-63,
61,
38,
-2,
-37,
62,
-23,
71,
12,
-24,
29,
53,
-7,
-2,
26,
-23,
15,
15,
16,
-18,
-16,
-36,
23,
71,
-32,
-23,
13,
-58,
-15,
18,
20,
-27,
-6,
-13,
-63,
-38,
20,
35,
-93,
-50,
50,
-18,
-45,
-69,
0,
13,
19,
29,
15,
-60,
71,
6,
-12,
27,
40,
66,
29,
50,
-33,
-49,
42,
-14,
12,
-23,
-52,
26,
74,
32,
4,
-97,
-67,
-31,
-64,
-22,
3,
-35,
-17,
32,
37,
37,
39,
-41,
55,
14,
-38,
-34,
35,
43,
34,
-8,
-10,
23,
12,
25,
14,
20,
21,
-87,
44,
-71,
21,
-91,
25,
-8,
-28,
2,
12,
-81,
60,
22,
-37,
41,
13,
14,
-24,
-44,
-84,
-92,
18,
-96,
64,
14,
45,
-40,
-98,
10,
15,
47,
21,
19,
32,
37,
-40,
-18,
-24,
9,
-79,
39,
-47,
-22,
-7,
-20,
54,
-23,
78,
-12,
2,
30,
-75,
51,
0,
54,
-12,
-40,
49,
-4,
-47,
7,
-16,
26,
3,
2,
-35,
47,
-18,
55,
-5,
0,
-36,
-53,
-10,
51,
41,
38,
-23,
5,
-32,
1,
45,
5,
-36,
-8,
40,
-49,
0,
-47,
-70,
22,
-17,
-9,
-30,
16,
-62,
16,
20,
-71,
-3,
44,
48,
15,
7,
92,
-9,
8,
16,
23,
22,
-24,
19,
44,
-16,
4,
-3,
13,
-53,
11,
-9
] |
JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Lawrence J.C. VanDyke appeals the First Judicial District Court’s grant of summary judgment to the Plaintiffs and Appellees, declaring VanDyke ineligible to seek election to the position of Justice of the Montana Supreme Court in the 2014 general election and directing the Montana Secretary of State to strike his name from the ballot. The only issue on appeal is whether VanDyke’s decision to take inactive status with the State Bar of Montana while he practiced law in other states disqualifies him from meeting the constitutional requirement of admission to the practice of law in Montana for five years prior to the election. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 VanDyke was admitted to the Bar of the State of Montana on October 17, 2005. He voluntarily chose inactive status on March 6, 2007, while he was practicing law outside of Montana. On November 28, 2012, VanDyke petitioned this Court for reinstatement to active status in the State Bar of Montana. The Chief Justice signed an order on behalf of the Court on December 5, 2012, directing that, “upon payment of the appropriate fees to the State Bar of Montana, [VanDyke] shall be admitted to the active practice of law in the state of Montana.” According to State Bar records, VanDyke was returned to active status on January 8, 2013. The Clerk of this Court issued VanDyke a license “to practice law as an attorney and counselor-at-law in all the courts of this state” each year from 2005 through 2013. The license shows his “Membership Status” as “Inactive” or “Inactive Attorney Member” for the years 2007 through 2012. VanDyke’s Membership Status is listed as “Active” for the years 2005, 2006 and 2013. Consistent with Article I, Section 3(a) of the By-Laws of the State Bar of Montana, the license indicates that “[t]he class of inactive members shall include those persons who are eligible for active membership but are not engaged in the practice of law in Montana and have filed with the association written notice requesting enrollment in the class of inactive members.”
¶3 On March 10,2014, VanDyke filed with the Montana Secretary of State his Declaration of Nomination as a candidate for election to the Montana Supreme Court. On March 21, 2014, the Plaintiffs and Appellees, Louise Cross, Wade Dahood, Jean Bowman, Michael McKeon, and Arlyne Reichert (referred to collectively in this Opinion as “Cross”) filed their Complaint in the First Judicial District Court, seeking to have VanDyke’s candidacy invalidated. Each of the Plaintiffs is a registered Montana voter and each served as a delegate to the 1972 Montana Constitutional Convention. The Complaint alleged that VanDyke is ineligible to seek election to the Montana Supreme Court at the November 4,2014, general election because he was not “admitted to the practice of law in Montana for at least five years prior to the date of... election” as required by Article VII, Section 9, of the Montana Constitution. Cross sought a declaration of VanDyke’s ineligibility and a temporary and final injunction excluding his name from both the June 3,2014, primary election ballot and the November 4,2014, general election ballot.
¶4 VanDyke filed a petition for writ of supervisory control with this Court on March 28, 2014, urging the Court to take immediate jurisdiction over the action, given that the ballots for the primary election would be printed by mid-April 2014. After receiving Cross’s response, we declined to exercise original jurisdiction over the matter, noting Cross’s concession that “[i]t is too late for any judicial action affecting the printing of the [primary] ballots.” Order on Supervisory Control, VanDyke v. First Jud. Dist. Ct., S. Ct. No. OP 14-0178 (Apr. 9, 2014). We observed that the District Court had scheduled a hearing on the parties’ cross-motions for summary judgment on April 23,2014, and directed the court to issue its ruling within seven days of that hearing. The District Court entered its Decision and Order on April 25,2014, from which VanDyke now appeals.
STANDARD OF REVIEW
¶5 This Court exercises plenary review over matters of Constitutional interpretation. State v. Trier, 2012 MT 99, ¶ 10, 365 Mont. 46, 277 P.3d 1230.
DISCUSSION
¶6 Article VII, Section 9( 1), of the Montana Constitution, provides in relevant part:
A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election.
¶7 The District Court ruled that VanDyke does not meet these minimum eligibility requirements because, when he elected to assume inactive status, VanDyke “could not practice law or represent himself as authorized or qualified to practice law.” The court agreed with Cross that “being admitted to the State Bar of Montana is not synonymous with being admitted to the practice of law.” Accordingly, although VanDyke was a member of the Bar continuously from October 2005 to the present day and will have been a member for more than nine years by the time of the election, the District Court reasoned that he “will have only been admitted to the practice of law as an active member of the State Bar for a period slightly more than three years.”
¶8 Van Dyke argues that there is no textual basis for a distinction between “licensed to practice” and “admitted to practice.” He cites numerous cases from other jurisdictions recognizing the two characterizations as interchangeable. VanDyke contends that the District Court’s reading of Article VII, Section 9, imposes an “actual practice” requirement that is at odds with the plain language of the Montana Constitution, which does not require the “active practice of law” for judicial candidates but does for the Attorney General. Mont. Const, art. VI, § 3(2). To the extent there is any ambiguity, VanDyke submits that the 1972 Constitutional Convention transcripts support his interpretation of the eligibility requirements. VanDyke warns of unintended consequences from an interpretation that would not only affect inactive Bar members but also would prohibit some judicial members of the Bar — also restricted from active practice — from running for the Supreme Court. He concludes that the strong presumption of eligibility, applied by many jurisdictions to afford voters maximum choice in selecting candidates for office, “makes this an easy case.”
¶9 Cross agrees with VanDyke that Article VII, Section 9 is “plain and clear on its face,” but contends that the plain language supports the opposite conclusion. Pursuant to the By-Laws of the State Bar of Montana, adopted by this Court in fulfillment of its authority under Article VII, Section 2(3), to make rules governing “admission to the bar,” Cross points out that VanDyke “must have paid dues and assessments and met the other requirements for an active membership” in order to practice law in Montana. Because VanDyke was prohibited from practicing law in Montana during the time that he chose to be on inactive status, Cross contends that VanDyke cannot count that time toward the five-year eligibility requirement. The unintended consequences of a ruling in VanDyke’s favor, Cross posits, would open the door to judicial candidates who have no experience with Montana law and have never been permitted to practice law in this State. Cross thus counters that, if there is an easy answer to the question presented in this case, it is the one given by the District Court.
¶10 This Court applies the same rules in the construction of the Constitution that it applies in the construction of statutes. Martien v. Porter, 68 Mont. 450, 464, 219 P. 817, 819 (1923); Keller v. Smith, 170 Mont. 399, 404, 553 P.2d 1002, 1006 (1976). “[T]he intent of the framers of the Constitution is controlling and that intent must first be determined from the plain language of the words used.” State ex rel. Racicot v. District Court, 243 Mont. 379, 384, 794 P.2d 1180, 1183 (1990). We have recognized that the qualifications of Supreme Court Justice “are dictated solely by the Constitution” and “covered exclusively in Article VII, Section 9.” Reichert v. State, 2012 MT 111, ¶¶ 62, 74, 365 Mont. 92, 278 P.3d 455.
¶11 In construing the phrase, “admitted to the practice of law in Montana,” “we must implement [the framers’] intent by viewing the plain meaning of the words used and applying their usual and ordinary meaning.” In re M.N., 2011 MT 245, ¶ 27, 362 Mont. 186, 261 P.3d 1047. The ordinary meaning of the word “admit,” as used in this context, is “to allow to enter, let in, receive (a person or thing)... into any office, position or relation[.]” The Compact Edition of the Oxford English Dictionary (Oxford University Press, 1971). At the time the Montana Constitution was adopted, Montana did not have a unified bar association. As noted, the Constitution gives the Montana Supreme Court authority over rules governing “admission to the bar and the conduct of its members.” Mont. Const, art. VII, § 2(3). On January 29, 1974, pursuant to its Constitutional authority, this Court issued an order for Unification of the Bar of the State of Montana. Application of Mont. Bar Ass’n President, 163 Mont. 523, 518 P.2d 32 (1974). That Order was followed by the adoption in January 1975 of a Constitution and By-Laws of the State Bar of Montana. In re the Unified Bar of Montana, 165 Mont. 1, 530 P.2d 765 (1975).
¶12 Although this Court has approved various amendments to the Constitution and By-Laws during the last forty years, the substance of provisions pertinent to this case remains the same. Article II of the current Constitution of the State Bar of Montana, titled “Organization,” provides:
All persons admitted to the practice of law in the state of Montana are members of the State Bar of Montana. All such persons except judges of courts of record are dues paying members. Membership in the State Bar of Montana is a condition to practicing law in this state. Non-payment of membership dues and assessments shall result in suspension of membership and the right to practice law until payment of all dues, assessments and penalties in the manner provided by the by-laws.
¶13 The By-Laws of the State Bar of Montana (By-Laws) provide for eight classes of membership: active, judicial, inactive, active military service, senior, emeritus, resigned, and paralegal associate. By-Laws, art. I, § 3(a), in Montana Rules of Court vol. I, 473 (West 2014). With the exception of emeritus members — who provide only pro bono or volunteer services to low-income individuals — “only active and active militaiy service members may practice law in the State of Montana.” By-Laws, art. I, § 3(b). No inactive member, judicial member, senior member, or — except as to qualified pro bono services — emeritus member “may practice law in this state or hold office or vote in any election conducted by the State Bar.” By-Laws, art. I, § 3(f).
¶14 An inactive, emeritus or senior member may be reinstated to active status by submitting a written, verified application to the Clerk of the Montana Supreme Court and satisfying all of the following requirements:
(i) payment of dues for active membership, for the year in which they are reactivated...;
(ii) completion of CLE, as may be ordered by the Supreme Court ...;
(iii) payment of all license taxes, including those waived during emeritus or senior status, in compliance with Section 37-61-211, MCA.
By-Laws, art. I, § 3(e). A lawyer may terminate membership in the State Bar by voluntary resignation. “When a member who is licensed to practice law files with the State Bar office a written notice of such member’s surrender of his or her license, such person shall thereupon cease to be a member of the State Bar[.]” By-Laws, art. I, § 4(f).
¶15 This Court also may take actions that affect a lawyer’s ability to practice law in Montana. The Montana Rules for Lawyer Disciplinary Enforcement (MRLDE) allow the Court to suspend a lawyer from the practice of law, to place a lawyer on probation, to transfer a lawyer to disability/inactive status for a disabling mental or physical condition, and to disbar a lawyer from the practice of law in Montana. Rule 9,28, MRLDE. Subject to review by this Court, a lawyer may be conditionally admitted to the practice, subject to requirements imposed by the Supreme Court’s Commission on Character and Fitness. Rules of Procedure of the Commission on Character and Fitness of the State Bar of Montana, §§ 5(d), (6). And the Court may admit a lawyer pro hac vice, limiting the lawyer’s appearance to a specific case or cases. Rules for Admission to the Bar of the State Montana, Rule IV.
¶ 16 VanDyke was admitted to the practice of law in Montana in 2005. “An attorney or counselor at law admitted by the supreme court of the state to practice within the state is required to pay a license tax of $25 a year.” Section 37-61-211(1), MCA. Pursuant to this statute, inactive Bar members are required to pay the annual license tax. VanDyke has paid his tax and received his certificate from the Clerk of this Court for each year since his admission. His admission was not conditional and has not been terminated, suspended, or subjected to any form of probation or other disciplinary action at any time. VanDyke did, by voluntary action, choose not to engage in the practice of law in Montana, selecting inactive membership for a period of approximately six years. But he did not resign or surrender his license and his admission to the Bar was not withdrawn. In short, he has never been “um-admitted.” His status as an inactive member of the Bar restricted him from “practicing] law in this state[.]” By-Laws, art. I, § 3(f).
¶ 17 To resolve whether that restriction renders VanDyke ineligible for the 2014 ballot, we are guided by the principle that, when interpreting the Constitution, “if possible, effect must be given to every section and clause.” Martien, 68 Mont. at 464, 219 P. at 819. For example, in Reichert, where we determined that Article VII, Section 9(1), did not permit a legislative referendum to require that Supreme Court Justices be elected from legislatively-created judicial districts, we considered the language of that section together with other relevant provisions of the Constitution. Reichert, ¶¶ 63, 65. We construe the Constitution “as a whole[,] with each provision bearing upon the same subject matter receiving appropriate attention.” Racicot, 243 Mont. at 390, 794 P.2d at 1186.
¶18 The Constitution provides a key relevant distinction between the qualifications for judicial officers and the qualifications for Attorney General. While candidates for both offices must reside within the state for two years immediately preceding election and both must be admitted to the practice of law in Montana, a candidate for Attorney General must have “engaged in the active practice thereof for at least five years before election.” Mont. Const, art. VI, § 3(2). Article VI, Section 3, and Article VII, Section 9 establish the minimum qualifications to hold statewide office in the executive and judicial branches of government; it is appropriate to view them together as part of the Constitution’s framework for the structure of state government. “The process of reading relevant statutory schemes in their entireties is what allows the Court to give true effect to the will of the Legislature.” Friends of the Wild Swan v. Dep’t of Nat. Res. & Conserv., 2005 MT 351, ¶ 16, 330 Mont. 186, 127 P.3d 394.
¶19 The “active practice” requirement is omitted from Article VII, Section 9(1). The plain language of these two provisions demonstrates a distinction in eligibility requirements. Given the Constitution’s explicit requirement of the “active practice” of law in Article VI, Section 3(2), we are reluctant to conclude that the framers “somehow meant to imply” a similar requirement in Article VH, Section 9(1). Friends of the Wild Swan, ¶ 18; see also Keene Corp. v. United States, 508 U.S. 200, 208, 113 S. Ct. 2035, 2040 (1993) (“ “Where Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983))). We strive to adopt a construction that will give effect to all relevant provisions without inserting what the express language of Article VH, Section 9(1) omits. Section 1-2-101, MCA.
¶20 Cross insists that she is not advocating for an “active practice” requirement, but for a construction that “admitted to the practice” means an unrestricted ability to engage in the practice of law. As discussed above, however, although VanDyke could not engage in the practice of law while on inactive status, his admission to the practice was not affected. The By-Laws expressly distinguish between voluntary inactive status and voluntary resignation of membership, which requires a lawyer to “surrender” his or her license to practice law. This interpretation finds additional support in this Court’s rules governing the conduct of members of the Bar. Under the Rules for Disciplinary Enforcement, the disciplinary jurisdiction of the Supreme Court extends to:
Any lawyer admitted to practice law in the state of Montana and any lawyer specially admitted by a court of the state of Montana for a particular proceeding, or appearing by pleading or otherwise in any judicial proceeding in the state of Montana, or otherwise engaging in the practice of law in the state of Montana[.]
Rule 7, MRLDE. Concluding that an inactive member is not “admitted to the practice of law” would place that member outside the reach of this Court’s disciplinary jurisdiction.
¶21 The District Court, agreeing with Cross’s interpretation of the eligibility requirement, concluded that being a member of the State Bar of Montana “is not synonymous with being admitted to the practice of law.” Construction of the operative language in Article VII, Section 9(1), is a matter of first impression. We concluded in State ex rel. Racicot that where both parties’ constructions of the constitutional language at issue “appear to be plausiblef,] . . . the sentence is ambiguous as to the present issue.” Racicot, 243 Mont. at 385, 794 P.2d at 1183. “[T]o the extent the plain language of the statute leaves any doubt, we look to the legislative history to determine whether” the District Court’s interpretation is correct. State v. Gregori, 2014 MT 169, ¶ 13, 375 Mont. 367, 328 P.3d 1128. Therefore, as in Racicot and in Reichert, ¶¶ 64, 80-81, we examine the Constitutional Convention transcripts to shed additional light on the framers’ intent.
¶22 At the 1972 Constitutional Convention, the Majority Report of the Executive Committee proposed that the Montana Constitution require candidates for all statewide executive offices to be “a citizen of the United States, a resident of Montana for two years next preceding the election, and ... otherwise a qualified voter.” Montana Constitutional Convention, Committee Proposal, February 17, 1972, Vol. I, 435. In addition, “any person to be eligible to the office of attorney general shall be an attorney in good standing admitted to practice law in the state of Montana, and have engaged in the active practice thereof for five years before election.” Mont. Const. Conv., Vol. I at 435-36.
¶23 The Majority Proposal of the Judiciary Committee recommended similar qualifications for the office of District Court Judge, but slightly different qualifications for Supreme Court Justice. Mont. Const. Conv., Vol. I at 487-88. For District Judge, the Majority Report proposed in pertinent part:
No person shall be eligible to the office of judge of the district court unless engaged in the active practice of law in the state of Montana for at least five years prior to filing for or being appointed to the office of district judge, and in addition shall be a citizen of the United States and admitted to practice law in the supreme court of the state of Montana.
Mont. Const. Conv., Vol. I at 488. For Supreme Court Justice, the Majority Report proposed:
A United States citizen who has been a resident of Montana for two years shall be eligible for the office of justice of the supreme court if admitted to practice law in Montana and experienced with the law in Montana for at least five years immediately prior to filing for or being appointed to the position of justice.
Mont. Const. Conv., Vol. I at 487.
¶24 The Minority Proposal from the Judiciary Committee suggested a Judiciary Article that was considerably shorter than that proposed by the Majority Report. In offering its recommendation, the Minority commented that its proposal provided “strength” in “[i]ts elasticity and flexibility” and “force” in its “clarity.” In the Minority Proposal, “citizens’ choices and options have been enhanced, the judiciary has been strengthened, and the entire judicial system has been made more flexible to change and review by the people.” Section 8 of the Minority Proposal provided identical qualifications for both Supreme Court Justices and District Judges; it used the language that candidates must “have been admitted to the practice of law in Montana for at least five years prior to the date of appointment or election.” Mont. Const. Conv., Vol. I at 512. Comments to the Minority Report pointed out that it “specifies five years of practice at law as a qualification for either a supreme court justice or a judge of the district court.” Mont. Const. Conv., Vol. I at 522.
¶25 On February 24, 1972, the delegates debated the Executive Article. When the topic turned to qualifications for Attorney General, Delegate Joyce explained that the five-year practice requirement was adopted “to conform with the Judicial Article.” Mont. Const. Conv., Vol. IV at 893. Delegate Joyce explained that the Executive Committee’s intention was to “put the Attorney General on the same status as the district judge, that he’d have to practice law in Montana for 5 years, learn the procedure of Montana so, therefore — so that he could then be a good, qualified, experienced lawyer when he became Attorney General ... .” Mont. Const. Conv., Vol. TV, at 895. The delegates adopted the Majority Report for the qualifications of executive officers. Mont. Const. Conv., Vol. IV at 899.
¶26 Two days later, the Convention took up consideration of the vastly differing proposals between the Majority and Minority Reports on the Judiciary Article. Mont. Const. Conv., Vol. IV at 1010. Following impassioned speeches from members of the divided Judiciary Committee, the delegates voted to proceed with the Minority Proposal. Mont. Const. Conv., Vol. IV at 1035. By February 29,1972, they had reached discussion on the Qualifications section. Delegate Berg explained:
We have changed the 1889 Constitution in some particulars with regards to the qualifications of judges. First of all, we eliminated the age requirement, but, secondly, we required five years practice of law for either a District Court judge or a Supreme Court judge, and by that we mean that he must be admitted to the practice of law in the State of Montana for at least five years before he’s qualified to hold that office. It was the belief of the committee, and I’m sure I’m speaking now on behalf of both majority and minority, that it takes experience in the courtroom, it takes experience in the actual practice in Montana in order to understand the procedures that we use, and that it would be harmful to the carrying out of justice in our courts if we had people on the bench who were not intimately familiar not only with Montana substantive law, but more especially with procedural law, and we felt very strongly that one of the most significant qualifications would be actual trial practice in court. We did not feel, however, that we should specify that in particular, but we feel that these are the kind of qualifications that do lend to the making of good judges.
Mont. Const. Conv., Vol. IV at 1119-20. There was no further discussion on this provision of the Minority Proposal. The section was adopted on a voice vote. Mont. Const. Conv., Vol. IV at 1121.
¶27 Cross selected the above quote from Delegate Berg to argue to the District Court that the requirement for five years’ admission to the practice of law in Montana “was premised upon the expectation that Montana Supreme Court Justices would be experienced in the actual practice of Montana law and procedures.” Including the same quote in its Decision and Order, the District Court stated, “Explicit in [Delegate Berg’s] reasoning is the principle that to be eligible for office, a judicial candidate must be engaged in the practice of law in the state for five years.” In the context of the entire discussion, however, Delegate Berg’s remarks reflect the Minority Proposal’s streamlined approach to the Judicial Article and the distinction between being eligible to seek election to office and being qualified to serve in the office sought. The Minority Proposal removed all eligibility requirements except admission to the practice of law. After considering proposals that would have imposed specific eligibility requirements for both supreme court and district court candidates, the delegates chose an approach with more “elasticity and flexibility,” abandoning requirements for “active practice” or “experience[] with the law in Montana.”
¶28 Given the extensive discussion of the Executive Article and the specific “active practice” requirements for Attorney General, followed by the deliberate decision to adopt a simplified Judiciary Article, the convention transcripts make clear that the delegates understood and intended the difference between the qualifications for Attorney General and the qualifications for Supreme Court Justice. The Constitutional Convention record thus supports our analysis of the plain language of Article VII, Section 9(1).
¶29 Although we have not previously interpreted Article VII, Section 9’s requirement for admission to the practice of law, we applied liberal construction to a similar statutory eligibility requirement in Shapiro v. Jefferson Co., 278 Mont. 109, 923 P.2d 543 (1996). In that case, the Jefferson County Commissioners had filled a vacancy in the position of county attorney with an attorney who had been admitted to the State Bar four years prior to her appointment but had practiced under this Court’s “Student Practice Rule” for an additional year. The applicable statute, § 7-4-2701, MCA, imposed an eligibility requirement that a person be “admitted to the practice of law for at least 5 years prior to the date of election or appointment.” This Court ruled that, because the attorney “was entitled to engage in the practice of law only by virtue of this Court’s order enacting the Student Practice Rule and only after she met the requirements of and was certified to practice pursuant to that rule, the Court’s order did admit her to the practice of law.” Shapiro, 278 Mont. at 115, 923 P.2d at 547. The dissenting justices sharply disagreed, noting that “[t]he phrase ‘admitted to the practice of law’... is a different matter entirely from ‘practicing law* ” and that the attorney had not been admitted to the practice of law under the Student Practice Rule when she had not completed all the eligibility requirements for admission to the Bar under statute and Court rules. Shapiro, 278 Mont. at 117-19, 923 P.2d at 548-49.
¶30 Although Shapiro has limited applicability here, it is instructive for the Court’s broad inteipretation of minimum eligibility requirements and for its recognition that admission to the practice of law is conferred in accordance with the rules of this Court and not by an attorney’s active Bar membership status. Even the dissenting justices’ distinction between admission and practice supports a determination in this case that VanDyke meets the constitutional eligibility requirements. Under either approach, “admission to the practice of law in Montana” does not connote active membership in the State Bar.
¶31 Finally, as in Racicot, “[w]e have been presented with extensive arguments as to the potential for unreasonable results and even abuses of the Judicial selection system. We limit our decision to the facts and issues of the case before us.” Racicot, 243 Mont. at 391, 794 P.2d at 1187. While unintended consequences possibly could occur under either construction of the provision, a construction that would disallow Bar members whose admission status has never been withdrawn, suspended or terminated and that could disqualify licensed attorneys who have served most of their careers in judicial positions would be an unreasonable construction of the eligibility requirement. To the extent the construction could open the door to long-inactive attorneys to run for judicial positions, the Constitution — as Delegate Berg recognized — determines minimum eligibility; the voters decide who is qualified to serve.
¶32 The Constitution’s grant of authority to this Court to govern the practice of law and to develop rules for admission to the bar does not, as the Dissent suggests, authorize the Court to revise the minimum eligibility requirements that are set by the Constitution. Thus, a eareftd analysis of the intent of the framers in adopting these constitutional requirements is integral to proper resolution of this case. The Court has exercised its power to regulate through the imposition of various administrative prerequisites to actively engaging in the practice of law; at least in this case, however, those administrative regulations did not affect VanDyke’s admission to the practice.
CONCLUSION
¶33 We conclude that VanDyke’s admission to the practice of law in Montana in 2005 satisfies the Constitution’s requirement that a candidate for Supreme Court Justice be “admitted to the practice of law in Montana for at least five years prior to the date of appointment or election,” notwithstanding his choice to take inactive status for some of those years. The judgment of the District Court is reversed.
JUSTICES McKINNON and RICE and DISTRICT JUDGE BOUCHER, sitting for JUSTICE WHEAT concur.
Our Order noted that neither Justice Mike Wheat, who is running for re-election to the position sought by VanDyke, nor the Chief Justice had taken any part in consideration of the Petition for Supervisory Control. Both also recused themselves from participation in VanDyke’s appeal in this case, as did Justice James Jeremiah Shea. (Orders, Cross v. VanDyke, S. Ct. No. 14-0259, May 7, 2014, and May 28, 2014.)
VanDyke points out that a District Judge who wishes to run for the Supreme Court already will have met the five-year admission requirement; however, a judicial member of the Bar who has served as judge of the Water Court or Workers Compensation Court could be ineligible to seek election to the Supreme Court under Cross’s interpretation, despite serving in that capacity for “decades,” if he or she had not attained five years of practice prior to being appointed to the judicial position. Cross does not directly dispute this interpretation, but observes that the five-year admission requirement need not “immediately” precede election or appointment to office.
|
[
38,
10,
-8,
29,
31,
-7,
-13,
-23,
-14,
49,
-25,
12,
73,
-41,
25,
-46,
-24,
-8,
-52,
47,
9,
4,
29,
-2,
26,
0,
-34,
16,
0,
8,
67,
-64,
-3,
-37,
-61,
32,
4,
31,
10,
15,
61,
-18,
-4,
19,
-65,
27,
17,
-19,
-27,
34,
3,
2,
-43,
25,
0,
-11,
27,
25,
-22,
35,
16,
64,
22,
26,
45,
5,
21,
68,
6,
-43,
-69,
-42,
-55,
-9,
-57,
-26,
-43,
-7,
-17,
19,
-44,
6,
-7,
-95,
7,
3,
-35,
-11,
31,
27,
-21,
20,
-20,
-39,
-13,
6,
0,
-35,
22,
-18,
12,
-76,
-4,
-51,
-58,
-46,
-55,
27,
52,
-6,
16,
14,
-2,
-4,
7,
-2,
18,
3,
31,
-17,
-28,
50,
-27,
25,
8,
-43,
14,
24,
-9,
-22,
-48,
5,
-7,
-67,
-45,
14,
4,
-27,
22,
-24,
62,
-20,
-20,
-32,
37,
-11,
-33,
24,
8,
-50,
44,
6,
-4,
57,
-21,
6,
37,
14,
51,
13,
23,
-94,
-37,
-19,
36,
89,
-29,
-7,
20,
-36,
26,
35,
26,
56,
-17,
24,
-37,
-5,
43,
9,
-14,
10,
60,
-6,
-11,
-2,
-10,
8,
39,
-35,
-59,
-71,
37,
-50,
7,
-33,
-58,
80,
-15,
-6,
-11,
49,
-11,
17,
-25,
-3,
17,
20,
1,
-39,
-22,
-21,
5,
-31,
0,
-15,
-3,
30,
-26,
-47,
7,
12,
-17,
-10,
-67,
10,
45,
13,
9,
-27,
-41,
-2,
-9,
8,
19,
1,
-22,
19,
-11,
5,
-23,
33,
67,
27,
-12,
-1,
-54,
-3,
-48,
15,
47,
-73,
72,
-4,
-4,
15,
46,
-14,
-58,
-15,
20,
-30,
-9,
-29,
16,
5,
59,
3,
12,
-18,
5,
-1,
36,
6,
-71,
1,
-17,
-73,
-11,
-5,
28,
42,
-23,
-2,
-61,
-15,
-36,
19,
-16,
-12,
-87,
-49,
-16,
77,
53,
-57,
7,
-39,
-51,
-19,
40,
36,
39,
60,
-15,
1,
-88,
8,
17,
-28,
13,
12,
-17,
-64,
34,
-34,
34,
6,
-31,
-16,
-6,
-4,
16,
-18,
0,
-22,
-16,
7,
0,
-22,
6,
11,
-20,
34,
5,
-42,
75,
0,
-9,
-15,
20,
-31,
33,
-45,
-2,
38,
-34,
24,
-10,
28,
21,
43,
41,
15,
-26,
-11,
-18,
-3,
37,
-55,
-10,
-33,
-32,
-8,
-32,
26,
-25,
36,
-12,
-44,
-86,
1,
34,
-2,
57,
0,
5,
3,
-53,
50,
-3,
-8,
-10,
-40,
16,
24,
2,
-7,
-14,
-41,
-15,
-39,
-28,
6,
-14,
24,
-4,
-30,
38,
16,
26,
6,
5,
19,
-46,
-17,
-70,
-16,
-8,
41,
83,
78,
-47,
-35,
68,
-1,
6,
-24,
-47,
43,
0,
-25,
-65,
44,
-28,
13,
0,
71,
1,
11,
-12,
-41,
42,
-4,
0,
-37,
5,
-6,
28,
42,
2,
-22,
22,
-112,
7,
8,
-7,
1,
1,
31,
-3,
25,
19,
-40,
-9,
-17,
0,
-8,
-80,
-21,
-46,
-30,
-42,
9,
23,
-13,
-36,
13,
0,
21,
-34,
15,
-32,
45,
-7,
5,
-43,
23,
-3,
-15,
37,
-16,
0,
60,
0,
-36,
-33,
28,
-77,
-64,
-40,
46,
-16,
-1,
-65,
34,
-2,
-19,
-42,
4,
-26,
28,
-45,
29,
-60,
-50,
17,
17,
26,
50,
20,
22,
32,
28,
10,
-27,
28,
14,
9,
2,
24,
58,
-23,
9,
-51,
28,
-35,
-15,
62,
7,
-30,
14,
3,
1,
25,
0,
62,
-23,
23,
-15,
21,
18,
28,
20,
-23,
-1,
-18,
22,
74,
16,
52,
9,
-50,
-41,
-27,
-6,
-64,
47,
60,
-1,
18,
81,
0,
37,
-19,
13,
-37,
-31,
55,
4,
-1,
-3,
-21,
12,
75,
-75,
26,
23,
-44,
-37,
51,
43,
-3,
-40,
-70,
14,
10,
-93,
69,
-12,
-20,
-64,
-8,
20,
-41,
16,
-7,
69,
-37,
2,
-22,
14,
-20,
35,
-18,
-14,
3,
33,
13,
45,
-40,
15,
-20,
33,
-3,
18,
11,
-11,
0,
-20,
-22,
-1,
9,
24,
59,
-12,
-15,
-16,
67,
23,
49,
-39,
-39,
-28,
-14,
-12,
12,
-38,
2,
-31,
-2,
32,
6,
-38,
10,
25,
8,
50,
-10,
20,
41,
53,
-64,
-18,
-36,
-10,
16,
13,
37,
-33,
-1,
-12,
-27,
10,
-54,
41,
5,
18,
-49,
40,
77,
-26,
-7,
22,
43,
5,
37,
9,
-4,
42,
-42,
-104,
42,
-19,
-20,
-13,
47,
44,
11,
-14,
19,
0,
17,
-23,
2,
-6,
-21,
-7,
-8,
-75,
-29,
-24,
32,
-12,
-34,
10,
30,
-45,
-19,
31,
59,
-22,
4,
26,
-20,
-54,
-60,
-30,
-5,
-7,
38,
22,
-57,
17,
5,
3,
-44,
24,
66,
24,
8,
27,
-32,
-7,
-39,
23,
67,
-26,
-6,
56,
4,
29,
44,
10,
-27,
49,
8,
-20,
-18,
-36,
7,
1,
-39,
35,
-33,
1,
-32,
8,
-38,
23,
21,
30,
-35,
48,
-19,
-4,
32,
-12,
4,
63,
-5,
-9,
0,
55,
6,
2,
10,
30,
0,
52,
35,
-25,
-26,
-59,
-17,
14,
22,
102,
-21,
14,
-44,
-8,
31,
26,
33,
-12,
10,
-24,
50,
11,
-27,
-71,
17,
12,
10,
33,
45,
63,
38,
-14,
0,
-11,
29,
-14,
12,
-7,
5,
-19,
27,
-47,
29,
-74,
-19,
39,
22,
-2,
10,
-1,
-6,
57,
-22,
15,
6,
-8,
22,
5,
4,
44,
-31,
-7,
2,
25,
-49,
-21,
-20,
60,
56,
17,
35,
-50,
-17,
57,
-21,
-10,
19,
-19,
7,
-47,
-18,
56,
24,
8,
17,
41,
44,
-24,
44,
-14,
27,
19,
-25,
-16,
73,
59,
-10,
37,
51,
1,
12,
-46,
-50,
31,
-48,
-22,
9,
21,
6,
-5,
-17,
-59,
56,
7,
12,
44,
-53,
-8,
-36,
-21,
-49,
13,
-69,
-11,
17,
-86,
-19,
5,
11,
60,
-5,
-2,
49,
15,
17,
17,
22,
-9,
-40,
72,
49,
63,
-9,
32,
3,
-54,
-9,
6,
-34,
-48,
-14,
32,
23,
29,
29,
-2,
12,
11,
-28,
46,
-58,
-30,
41,
35,
15,
-37,
-3,
57,
-21,
-61,
-17,
-35,
-16,
-13,
60,
55,
52,
26,
7,
42,
8,
36,
-7,
2,
-42,
43,
-42,
-8,
-33,
-81,
-11,
25,
-39,
57,
-15,
28,
33,
37,
-29,
-5,
75,
-23,
-14,
-23,
-1,
39,
-19,
4,
-67,
21,
-40,
-65,
44,
-5,
-31,
-30,
40,
6,
-19,
-19,
18,
-15,
30,
-34,
-69,
3,
-33,
-6,
26,
-36,
-15,
15,
42,
-4,
-8,
-26,
-53,
13,
26,
-13,
-55,
-5,
-75,
39,
-30,
4
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
For the purpose of these appeals, the facts involved in this controversy may be stated as follows:
In 1921 Mrs. Mary T. Thornton owned 320 acres of land in Toole county. On August 26 of that year she gave to Gordon Campbell a lease upon the land, by the terms of which the lessee was, or his successors and assigns were, authorized to go upon the premises and explore for oil, gas, hydrocarbons and other minerals, and, if any such minerals were discovered, to extract and market the same, paying to the lessor a specified royalty. " The lessee agreed that, within three months from the date of the lease, he would commence drilling operations in the northeast part of the Rocky Ridge dome — a territory which embraced the Thornton land — and within twenty-four months from the date of the lease would commence sinking a well upon the leased premises. That lease was not recorded. On December 8, 1921, Mrs. Thornton gave to James L. Rock an option to purchase her land, but the option was made subject to the Campbell lease. The option was duly recorded on December 9 in the Miscellaneous Record Book of Toole county. In May, 1922, Campbell assigned his lease to L. C. Stevenson, and Stevenson in turn assigned it to the Sunburst Oil & Gas Company. Each of the assignments was duly recorded. On June 6, 1922, Mrs. Thornton conveyed her land to Mrs. M. M. Guerin by warranty deed. In August following the Sunburst Oil & Gas Company went upon the land and commenced to explore for oil and gas, when this action was commenced by Mrs. Guerin to secure an injunction restraining the company from continuing its operations.
In its answer to the complaint, the defendant set forth the foregoing matters and alleged that it was carrying forward its explorations pursuant to the terras of the Campbell lease, and that Mrs. Guerin had purchased the land with notice of the existence of that lease. After a hearing the trial court denied the application for an injunction and caused a judgment to be entered dismissing the complaint. From that judgment, and from the order denying an injunction, plaintiff appealed.
The ultimate question for determination is: Did plaintiff purchase the Thornton land with notice of the outstanding Campbell lease? As observed heretofore, that lease was not recorded; but section 6938, Revised Codes of 1921, provides: “An unrecorded instrument is valid as between the parties and those who have notice thereof,” and that notice may be either actual or constructive.
The trial court concluded from the evidence before it that Mrs. Guerin “purchased- with constructive notice, at least, of the outstanding rights in defendant under said lease,” and it is the correctness of that conclusion which is challenged by-counsel for plaintiff. The trial court relied upon the record of the Rock option and the assignments of the Campbell lease, and the immediate question is: Did the record of those instruments, or the record of any of them, impart constructive notice to Mrs. Guerin of the existence and contents of the lease itself ?
Section 6934, Revised Codes of 1921, provides: “Every conveyance of real property acknowledged or proved, and certified and recorded as prescribed by law, from the time it is filed with the county clerk for record, is constructive notice of the contents thereof to subsequent purchasers and mortgagees, ’! etc.
Section 6935 declares that, as between two or more conveyances of the same property by the same person, the first recorded shall have precedence.
Section 6936 provides: “The term ‘conveyance,’ as used in the two preceding sections, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to real property may be affected, except wills.”
The Rock option was in writing and imports a sufficient consideration (sec. 7512, Rev. Codes 1921) ■ however, it recites that it was given for a valuable consideration and its validity is not attacked. It conferred upon Rock and his assigns the right to purchase the Thornton land, at any time within one year, at $10 per acre, and the effect of that option was that Mrs. Thornton parted with her tight to sell the property, except to Rock or his assigns, for the full term of one year. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.)
It is conceded by counsel for plaintiff, as it njust be, that the option was an instrument by which the title to the Thornton land might be affected, and hence was a conveyance within the definition given in section 6936 above, It was recorded in the proper office and imparted constructive notice, if it was recorded as prescribed by law (see. 6934). But counsel for plaintiff qontend that it was not recorded in the proper book, and therefore did not impart notice to Mrs. Guerin. The argument in support of the contention proceeds ■ upon the assumption that an option to purchase land is in legal effect a contract to purchase, and must be recorded in the 'book kept for recording contracts for the purchase or sale of real estate. The assumption is altogether erroneous, and the conclusion based upon it equally so. An option to purchase is not an -agreement to purchase. The distinction between the two was pointed out so clearly in Ide v. Leiser, above, that further discussion of the subject is unnecessary.
Section 4796, Revised Codes of 1921, requires the county clerk, as ex-officio recorder, upon payment of his fees therefor to record in separate books the various instruments enumerated in the first 14 subdivisions of that section, and by subdivision 15 he is required, also, to record in a separate book “such other writings as are required or permitted by law to be recorded.” He is required, also, to keep proper index-books, in which the instruments recorded by him are to be indexed. Speaking in general terms, he is required to keep two index-books for every class of instruments, a direct and an indirect index-book. Those index-books are enumerated in section 4799, Revised Codes of 1921. Subdivision 27 requires him to keep “a miscellaneous index, in which must be indexed papers not herein-before stated” in the preceding twenty-six subdivisions. Nowhere is it required that any of the record books shall bear a particular label or designation. It is a matter of common knowledge that it is the general practice to have on each book a label designating the character of instruments recorded in it, and that the book provided for in subdivision 15 of section 4796 is designated the Miscellaneous Record Boob, and that the index-book provided for by subdivision 27 of section 4799 is designated the Miscellaneous Index Book.
^ Since an option does not fall within any of the classes of instruments enumerated in the first fourteen subdivisions o£ section 4796, or within the first twenty-six subdivisions of section 4799, it follows that it must be recorded in the book for which provision is made by subdivision 15 of section 4796, and indexed in the book designated by subdivision 27 of section 4799. In the instant case the option recorded in the Miscellaneous Record Book was recorded as prescribed by law. (Stephen v. Patterson, 21 Ariz. 308, 188 Pac. 131.)
Section 6899, Revised Codes of 1921, reads as follows: “An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the county clerk’s office with the proper officer for record.” Since the option was an instrument entitled to be recorded, and was recorded as prescribed by law, it imparted constructive notice of its contents to Mrs. Guerin, who was a subsequent purchaser of the property affected by the option, from the time it was filed with the county clerk of Toole county on December 9, 1921. (Sec. 6934, above.)
One who purchases land from the owner, after the recording of an option given by the owner to another person to purchase the same land, takes with constructive notice of the option, and cannot claim to be an innocent purchaser. (Chesbrough v. Vizard Inv. Co., 156 Ky. 149, 160 S. W. 725.)
The option recited that the right to purchase given to Rock was “subject, however, to one certain oil and gas lease given in favor of Gordon Campbell,” and that recital constituted a part of the contents of the option as the term “contents” is used in section 6934 above. (Taylor v. Mitchell, 58 Kan. 194, 48 Pac. 859.) But Mrs. Guerin was chargeable, not merely with notice that such a recital was contained in the option; she was chargeable also with notice of all material facts which an inquiry suggested by that recital would have disclosed. (Fisher v. Bush, 133 Ind. 315, 32 N. E. 924; Loser v. Savings Bank, 149 Iowa, 672, 31 L. R. A. (n. s.) 1112, 128 N. W. 1101; 2 Tiffany on Real Property, sec. 572.) She was bound to make inquiry of the owner of the lease, and, if she failed to do so, she is chargeable with notice of all that she would have learned if she had pursued the inquiry to the full extent to which it led. (Crawford v. Chicago, B. & Q. R. Co., 112 Ill. 319; Gaines v. Summers, 50 Ark. 322, 7 S. W. 301.) In other words, she was chargeable with notice of the contents of the Campbell lease, though it was not recorded (White v. Foster, 102 Mass. 375; Hancock v. McAvoy, 151 Pa. 439, 25 Atl. 48; 2 Tiffany on Real Property, sec. 572), and she could not rely upon the representation by Mrs. Thornton that there was not any outstanding lease upon the property (Bergstrom v. Johnson, 111 Minn. 247, 126 N. W. 899; Waggoner v. Dodson, 96 Tex. 415, 73 S. W. 517; 39 Cyc. 1714).
If Mrs. Guerin had caused proper search of the records to be made before she purchased, she would have known of the defendant’s right to prospect the property for oil and gas. If she did not cause such search to be made, she cannot invoke the aid of a court of equity to relieve her from the consequences of her own want of ordinary care and prudence.
^ There is a suggestion in the brief of counsel for plaintiff that the Campbell lease was never delivered, and hence that the defendant was a naked trespasser upon plaintiff’s land. The lease was in a bank at Sunburst, and the court found upon ample evidence that all conditions precedent to delivery had been complied with; in other words, that the lease ought to have been delivered. Equity regards that as done which ought to be done, or, as stated in section 8758, Revised Codes of 1921: “That which ought to have been done is to ■be regarded as done, in favor of him to whom, and against him from whom, performance is due.”
There are other considerations, suggested by the record, which fortify the conclusion reached by the trial court, but enough has been said to demonstrate the correctness of that conclusion.
The judgment and order are affirmed.
Affhrmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
6,
44,
18,
-56,
4,
54,
-11,
7,
42,
39,
41,
1,
55,
-30,
28,
8,
14,
5,
16,
0,
7,
3,
22,
-22,
39,
-52,
-51,
-63,
-21,
40,
-12,
-13,
-54,
-2,
29,
36,
-7,
2,
-6,
-9,
-45,
70,
-23,
18,
33,
45,
-7,
-34,
12,
-19,
16,
-9,
36,
0,
-68,
-17,
-11,
1,
-2,
12,
-23,
4,
39,
69,
41,
36,
6,
-46,
50,
-1,
-38,
19,
38,
-72,
9,
-34,
-1,
-10,
-30,
-15,
-39,
39,
-27,
20,
-17,
70,
-37,
-8,
30,
-22,
-43,
-32,
-31,
51,
-28,
7,
-32,
-30,
-30,
45,
20,
4,
-28,
21,
17,
21,
-56,
50,
62,
23,
-32,
-19,
3,
-8,
-17,
-44,
9,
5,
-33,
-64,
-14,
-4,
13,
-19,
3,
-17,
-37,
-36,
0,
11,
-60,
10,
3,
8,
19,
0,
54,
-21,
-17,
1,
-25,
-28,
-6,
29,
26,
27,
-3,
-41,
-65,
-17,
26,
15,
17,
36,
18,
-61,
33,
28,
-2,
-2,
9,
-25,
44,
7,
-31,
6,
42,
-25,
-24,
-20,
26,
28,
-59,
-44,
32,
-40,
2,
-36,
-31,
-8,
-16,
-16,
-33,
-56,
0,
6,
-6,
88,
-9,
43,
-34,
-44,
6,
-1,
-82,
-48,
-3,
-29,
-4,
8,
36,
14,
9,
8,
-1,
-7,
-29,
43,
50,
3,
3,
58,
-12,
-23,
-39,
41,
30,
-10,
0,
-11,
57,
-33,
-12,
21,
-13,
-5,
10,
-14,
-16,
-31,
-39,
1,
4,
24,
-29,
13,
7,
11,
-5,
-13,
-29,
-47,
-39,
-17,
-12,
28,
39,
-23,
-1,
45,
-32,
12,
-19,
32,
0,
-14,
-36,
-33,
8,
-59,
25,
-3,
-39,
-25,
12,
-7,
-38,
-29,
-3,
18,
-18,
-14,
3,
69,
-63,
-68,
64,
-21,
-22,
-14,
29,
-11,
-29,
-3,
10,
16,
1,
19,
-42,
20,
-8,
17,
-25,
-23,
18,
-19,
71,
-22,
-20,
29,
-1,
10,
18,
17,
77,
8,
-17,
-15,
-2,
12,
42,
24,
-6,
-6,
-8,
-32,
45,
-13,
21,
-3,
27,
0,
0,
49,
-2,
19,
62,
-9,
7,
25,
7,
0,
8,
2,
2,
4,
-19,
25,
3,
30,
-30,
9,
21,
10,
27,
25,
-4,
-39,
-4,
12,
-18,
-2,
-46,
52,
-26,
-26,
61,
-18,
-61,
3,
15,
-13,
27,
4,
-20,
33,
-22,
-28,
15,
-11,
-15,
12,
-6,
-6,
9,
-12,
34,
18,
-16,
7,
0,
-32,
39,
12,
38,
20,
61,
-18,
-28,
-47,
-9,
-9,
-28,
54,
-20,
-29,
45,
9,
-8,
-15,
18,
45,
-73,
-51,
-7,
-55,
-10,
56,
-40,
-27,
-21,
-44,
-47,
-9,
11,
40,
-37,
53,
20,
5,
-4,
-33,
-46,
-44,
-33,
-18,
76,
-9,
-36,
11,
-60,
20,
55,
-1,
-21,
-24,
18,
20,
-47,
37,
-34,
33,
-7,
18,
-39,
10,
26,
-7,
19,
12,
-25,
33,
-15,
-11,
-14,
11,
80,
-51,
12,
0,
-7,
66,
6,
-13,
-53,
-23,
21,
-20,
-37,
34,
-36,
88,
60,
6,
28,
24,
0,
18,
-11,
-29,
-10,
48,
-20,
78,
33,
25,
1,
15,
36,
36,
42,
6,
-32,
-83,
-23,
-29,
37,
-6,
11,
-8,
-29,
-6,
34,
3,
-14,
-11,
20,
-17,
27,
90,
1,
-52,
-9,
-30,
6,
-15,
27,
26,
38,
-1,
27,
20,
2,
4,
11,
-30,
8,
-35,
93,
-17,
-46,
-13,
-13,
-37,
-11,
-1,
-23,
57,
-9,
-54,
8,
-1,
-30,
9,
-76,
20,
-1,
-16,
-13,
-36,
-35,
5,
-37,
9,
-8,
15,
-44,
-33,
-25,
11,
-1,
54,
13,
-15,
38,
26,
2,
2,
14,
52,
-21,
29,
41,
-17,
20,
-5,
2,
28,
12,
26,
2,
-26,
10,
-12,
-33,
13,
20,
-5,
-11,
1,
-18,
-44,
36,
12,
35,
-19,
12,
-10,
-24,
7,
-24,
-2,
-6,
16,
-7,
10,
-3,
-35,
15,
-27,
-25,
24,
-38,
-13,
48,
7,
25,
-42,
47,
-70,
-22,
-14,
-20,
-1,
60,
29,
-53,
65,
-4,
1,
-17,
-27,
2,
53,
38,
-22,
-3,
-11,
-55,
-22,
39,
-21,
-34,
21,
-4,
28,
21,
-30,
31,
-28,
14,
13,
30,
-20,
11,
30,
9,
-33,
10,
-22,
48,
-8,
20,
2,
-56,
-56,
2,
37,
7,
34,
-32,
33,
33,
-27,
-36,
17,
68,
31,
64,
15,
25,
4,
-4,
-41,
27,
-32,
-4,
55,
-29,
28,
25,
-40,
8,
23,
-24,
-40,
3,
-7,
3,
-19,
10,
-7,
0,
35,
30,
36,
26,
-28,
26,
5,
13,
-50,
5,
-2,
-31,
0,
-13,
-15,
-49,
-38,
33,
-14,
-17,
3,
-18,
68,
13,
42,
-55,
-5,
45,
26,
-35,
33,
18,
-13,
-13,
-17,
-33,
0,
-4,
14,
-17,
51,
-14,
7,
58,
26,
-37,
11,
-2,
-16,
-2,
64,
13,
-58,
-31,
12,
15,
-81,
31,
-12,
-2,
-9,
7,
-8,
1,
-21,
-48,
1,
46,
-25,
-37,
20,
-24,
0,
-11,
59,
36,
12,
-21,
-41,
-27,
-63,
-20,
-31,
-15,
36,
71,
28,
-38,
36,
11,
-50,
7,
0,
-67,
11,
-52,
-11,
-43,
-33,
9,
19,
74,
18,
41,
-5,
-14,
23,
-20,
-15,
54,
-8,
16,
37,
-44,
18,
6,
-25,
-27,
-29,
-53,
73,
34,
-35,
39,
7,
-53,
83,
5,
-43,
-28,
41,
36,
-40,
-3,
19,
-13,
-37,
-9,
-47,
21,
-10,
-26,
-10,
-85,
26,
-24,
54,
-25,
7,
-8,
20,
-9,
-42,
-20,
-55,
6,
57,
53,
0,
-41,
34,
16,
27,
57,
18,
-7,
5,
-6,
25,
14,
-1,
-3,
17,
-23,
1,
43,
37,
-38,
-5,
-5,
83,
-27,
19,
18,
70,
45,
9,
46,
-51,
-39,
-8,
19,
-10,
84,
-29,
11,
-50,
-62,
-18,
59,
65,
-20,
4,
-6,
-26,
12,
-15,
-29,
1,
-55,
-56,
-66,
7,
-7,
-29,
8,
45,
100,
-3,
-66,
27,
-12,
27,
-22,
32,
-17,
48,
0,
9,
-10,
-21,
-26,
33,
8,
-9,
-32,
-25,
-56,
-26,
67,
-7,
29,
-20,
-9,
-49,
14,
60,
-4,
30,
-18,
24,
-31,
-31,
-63,
39,
17,
-42,
-65,
20,
13,
-4,
8,
21,
5,
22,
-21,
-37,
9,
-4,
40,
17,
39,
40,
-9,
40,
44,
-18,
5,
3,
-58,
26,
62,
14,
-5,
-20,
17,
30,
22,
-9,
20,
43,
46,
16,
-69,
26,
8,
-5,
-29,
-37,
-49,
22,
-6,
-25,
-2,
-40,
15,
-23,
-32,
-3,
-41,
-11,
-5,
48,
-26,
-11,
-74,
-4,
1,
-51,
-20,
-23
] |
MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
In their complaint plaintiffs set forth two causes of action. In the first they claim damages for two coats lost through the alleged negligence of the defendant. In the second cause of action they allege that at Devils Lake, North Dakota, for a valuable consideration then paid by them, they deposited with the defendant in its parcel-room for safekeeping two traveling-bags with their contents; that thereafter on the same date they demanded the property, but the defendant failed and neglected to make return, to their damage in the sum of $619.
The answer of the defendant to the first cause of action is not material here. In answer to the second cause of action defendant admits the receipt of the property and its inability to return it. It alleges that the traveling-bags were received by it for storage under a special contract which limited its liability to $10 for the loss of each parcel.
Issues were joined by reply and the cause was tried with the result that a general verdict was returned in favor of defendant upon the first cause of action, and in favor of plaintiffs upon the second cause of action for $520, with interest thereon from September 15, 1920. A judgment was rendered which in terms awarded to defendant its costs incurred exclusively in defense of the first cause of action, and awarded to plaintiffs damages in the sum of $520 with interest, together with their costs incurred in prosecuting the second cause of action.
In due time defendant presented and filed its memorandum of costs, and plaintiffs moved to strike the memorandum from the files and tax the costs. They also moved the court to amend the judgment ’by eliminating therefrom, the provision awarding defendant any costs. On June, 1922, the court entered an order denying to defendant any costs, but reciting that, since the amount of costs claimed had not been inserted in the judgment, a modification of the judgment was unnecessary.
In its notice of appeal defendant recites that it appeals from the judgment and from the order of June 10, 1922. Plaintiffs have moved to dismiss the appeals. The order of June’10 was, in effect, an order taxing costs within the meaning of section' 9803, Revised Codes of 1921 (State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773), and is not appealable, but the ruling of the trial court is reviewable on appeal from the judgment (Ferris v. McNally, 45 Mont. 20, 121 Pac. 889).
The appeal from the judgment, then, presents two questions for determination: (1) The extent of defendant’s liability for the loss of the two traveling-bags, and (2) the right of de fendant to recover costs incurred by it exclusively in defense of the first cause of action.
It is conceded, as it must be, that the transaction involving the traveling-bags constituted a bailment for the benefit of both parties, or storage, within the meaning of sections 7660-7672, Revised Codes of 1921, and that in the transaction the defendant was not acting as a common carrier. (Fraam v. Grand Rapids & I. Ry. Co., 161 Mich. 556, 21 Ann. Cas. 96, 29 L. R. A. (n. s.) 834, 126 N. W. 851.) At the time the traveling-bags were deposited in defendant’s parcel-room plain tiffs received a cheek for each bag. Aside from the serial number, each check had printed on it the following:
“Great Northern Railway Company
“Parcel Room Check.
“Devils Lake, N. Station.
“Conditions.
“1. Ten cents for each 24 hours or fraction thereof.
“2. Issues for one parcel only.
“3. Charges collected on delivery.
“4. This company is not responsible for damages to perishable goods or fragile articles.
“5. Liability in ease of loss or damage not to exceed ten dollars.
“6. If a parcel is not claimed within 30 days, it will be sold for charges.
“7. A deposit of 50 cents will be required if this duplicate check is lost. If it is returned within 60 days refund will be made.
“8. One check will be issued for one parcel only. Parcels with articles attached will not be accepted.”
Plaintiff Vernon R. Jones deposited the bags and received the checks, and in doing so acted for his wife as well as for himself. He testified, in effect, that at the time he received the checks he observed that each of them had a number and other printed matter on it extending from the top to the bottom of the cheek; that he had the opportunity to read the printed matter, but did not read it, and if he had read the provisions for limited liability he would not have deposited the parcels with the defendant company; that he accepted the cheeks assuming that they were merely the means of identifying the property. Defendant requested the court to charge the jury that by accepting the checks plaintiffs agreed to the terms printed upon them, including the provision for limited liability, and could not recover more than $10 for the loss of each hand-bag with its contents. The request was denied, and error is predicated upon the ruling.
The relationship of bailor and bailee results from contract, express or implied. In the absence of some special agreement, the measure of the bailee’s liability for the loss of the property through its negligence is the reasonable value of the property (Cohen v. Henry Siegel Co., 220 Mass. 215, 107 N. E. 912), but it is permissible for the parties to agree- specially for limited liability so long as the contract itself does not violate the law or contravene public policy (6 C. J. 1112). The correctness of these principles is not called in question, so that we are confronted primarily with the inquiry: Did these parties enter into a special contract which limited defendant’s liability to $10 for the loss of each parcel?
It is elementary that in order to create a contract there must have been a meeting of minds, or, stated differently, there must have been an offer by one party and its unqualified acceptance by the other. Since it was competent for the defendant as warehouseman to prescribe the terms upon which it would render the services contemplated, it may be conceded that by tendering the checks it made an offer to receive and care for the parcels upon the terms expressed by the matter printed upon them, so that the real question, reduced to its simplest forms, resolves itself into this: Did plaintiffs accept the terms thus proposed? If they had received the checks and had read understandingly the matter printed upon them and then retained them without objection, they would be held to have consented to the terms imposed and bound by the pro visions for limited liability. As to the correctness of this ride there cannot be any controversy. If they had received the checks and retained them without knowing that they contained any terms or conditions and without notice from the bailee and upon the assumption that the checks were merely the means of identifying their property, they would not be held bound by the provision for limited liability, upon the theory that the minds of the parties never met; hence the special contract was never entered into.
Though authorities may be found which, in principle, question the correctness of this rule,-we think it is sound and supported by the better reasoned cases. The instant case, however, does not fall strictly within the group governed by either of the foregoing rules. Counsel for defendant cite Terry v. Southern Ry., 81 S. C. 279, 18 L. R. A. (n. s.) 295, 62 S. E. 249, and Misssouri Pac. R. Co. v. Fuqua, 150 Ark. 145, 233 S. W. 926, in support of their contention that plaintiffs are bound by the provisions for limited liability as a matter of law; but in each instance the court assumed that the special contract limiting liability had been actually entered into between the parties, and there is not any mention made of the facts which constituted an acceptance by the bailor, so that each of these cases properly falls within the rules first adverted to above. The record before us discloses that plaintiffs received the parcel checks and examined them sufficiently to know that there was printed matter upon them. They had the opportunity to examine them critically and the capacity to understand the meaning of the matter printed upon them. They did not read the printed matter and did not know that it contained a provision for limited liability, and if they had known of that provision they would not have stored the parcels with defendant. Clearly, as a matter of fact, plaintiffs did not consent to the provision for limited liability, since they did not know of its existence, and they can be bound by it only upon the theory that it was their legal duty to know the contents of the printed matter; hence are chargeable with notice thereof and bound to the same extent as if they had knowingly expressed their assent to that particular provision.
A review of the British cases discloses a decided conflict of opinion. In Van Toll v. Southeastern Ry. Co., 12 Q. B. (n. s.) 75, 142 Eng. Reprint, 1071, and Lyons v. Caledonia R. Co., 46 Scott. L. R. 848,, it was held that if the provision for limited liability is plain and obvious the bailor is held, as a matter of law, impliedly to consent to it, whether he read it or did not. In Parker v. Southeastern Ry. Co., 46 L. R. C. P. (n. s.) 768, it was held to be a question of fact whether notice of the limitation of liability o had been brought home to the bailor, who knew that the check contained printed matter but had not read it; and in Harris v. Great Western R. Co., L. R. 1 Q. B. Div. 515, 45 L. J. Q. B. (n. s.) 729, the court declined to say whether the question was one of law or fact, but the judges, sitting as triers of fact as well as of law, held, as a matter of fact, that the bailor in that instance was charged with knowledge of the provision for limited liability and bound thereby. There are very few American cases upon the subject. As indicated above, in Terry v. Southern Ry. and Missouri Pac. Ry. Co. v. Fuqua, the court assumed the existence of the contract for limited liability, and the precise question before us is not mentioned in the opinion in either case.
Counsel for defendant cite Taussig v. Bode, 134 Cal. 260, 86 Am. St. Rep. 250, 54 L. R. A. 774, 66 Pac. 259, which involved an ordinary warehouse receipt given for liquors stored, and which receipt had printed upon it a provision that loss by leakage should be at the owner’s risk. The court held the bailor bound by the provision and said: “It was the duty of respondents to take note of its contents, if they had the opportunity, and their opportunity was ample. The presumption, therefore, is that they did read it. Against this presumption there is no evidence, and none, we think, would have been admissible to show that the respondents had failed to do what their duty required them to do. Assuming, then, that they read the receipt, and, whether they did or not, that they are chargeable with knowledge of its contents, they had fair warning that any loss by leakage was at their risk, or, in other words, that the appellant declined all responsibility for loss by leakage. Their acceptance of the receipt and storage of the goods with knowledge of this condition made it binding upon them, as one of the terms of the contract.”
That case is not direct authority upon the question before us, for, though it may be said that defendant was acting in the capacity of warehouseman, the checks issued by it are not warehouse receipts as that term is understood generally. Whatever other function they may perform, they are primarily tokens or means of identification which are to be surrendered when the property is redelivered.
In Healy v. New York Cent. & H. R. R. Co., 153 App. Div. 516, 138 N. Y. Supp. 287, affirmed 210 N. Y. 646, 105 N. E. 1086, it was held that where the bailor did not know of the stipulation for limited liability and his attention was not called to it by the bailee, he was not bound. In a concurring opinion Justice Houghton said: “It seems to me that anyone in the ordinary course of business, checking his baggage at such a place, would regard the check received as a mere token to enable him to identify his baggage when called for, and that in no sense would he have any reason to believe that it embodied a contract exempting the bailee from liability or limiting the amount thereof. If the plaintiff knew that the defendant had limited its liability to $10, either by his attention being called to it or otherwise, then, of course, the law would deem him to have assented to it, so that a binding contract would be effected. If he did not know it, I think the law imposed no duty upon him to read his check to find whether or not there was a contract printed thereon, or that he was guilty of neglect in not so reading it, because he had no reason to apprehend that a contract was printed thereon.”
The facts in Dodge v. Nashville, C. & St. L. Ry. Co., 142 Tenn. 20, 7 A. L. R. 1229, 215 S. W. 274, cannot be distinguished from the facts of the instant ease. Dodge and his wife deposited in the railway company’s check-room in Chattanooga their hand-bag for safekeeping and received a numbered cheek which had printed upon it the following: “Not responsible for an amount to exceed ten dollars on any article covered by this cheek.” The hand-bag and contents were lost, and plaintiff sued and recovered the value of the property, $224.50. In the supreme court the bailee insisted that the provision for limited liability constituted a part of the contract and that the bailor was bound thereby. In disposing of the ease the court said: “The complainant testified that nothing was said to him by the young lady in charge of the defendant’s check-room concerning the limited liability clause printed on the check given him, and that his attention was not called to said stipulation. While he does not expressly say so, we think it is inferable from the complainant’s testimony that he did not read or know of the statement printed on the check until after the loss was discovered. * * * ‘The parties to a bailment may diminish the liability of the bailee by special contract, the principle being that the bailee may impose whatever terms he chooses, if he gives the bailor notice that there are special terms, and the means of knowing what they are; and if the bailor chooses to make the bailment, he is bound by them, provided the contract is not in violation of law or of public policy, and that it stops short of protection in cases of fraud or negligence of the bailee; and provided further that the terms of the contract are clear, such stipulations being strictly construed,’ ” citing 6 C. J. 1112. Reference is then made to the decision in Healy v. Railroad Co., and the language of Justice Houghton above is quoted. The Tennessee court then continues: “We think this ¡statement of the law is sound and should control the case at bar. In the absence of notice to the complainant of the stipulation printed upon the check restricting the liability of the defendant, we do not think that he should be bound thereby. # * * We do not think that the complainant, by receiving the numbered cheek, was chargeable with notice of the printed stipulation thereon. We do not think that he was bound to regard it as a receipt containing a printed stipulation restricting the liability of the company, in the absence of his attention being called to such stipulation, but was warranted in regarding it as a mere check or token that would enable him and the agent of the defendant to identify his suitcase upon his return and making demand therefor. We do not think that an ordinarily prudent man would have regarded it as more, and the complainant was not guilty of a breach of duty in failing to apprise himself of such limitation. * * * It was simply a numbered check showing that the holder had deposited a parcel of some character with the defendant, which enabled the defendant to identify the •parcel by comparing the number on the check with the number of the duplicate attached to the parcel. * * * It was for safekeeping that the complainant deposited his suitcase with the defendant, for which he was given the check of identification by the young lady in charge. He had no reason to suspect that said check contained any statement restricting the liability of the company, in the absence of his attention being called thereto.”
Speaking in general terms, we agree with this conclusion. If the bailee does not call attention to the provision for limited liability and the bailor does not have actual knowledge of its existence, he is not bound by it, unless his course of conduct is such as to lead the bailee, as a reasonable person, to believe that he assents to the provision; and the mere fact that he retains the check without objection does not, as a matter of law, constitute such conduct, and in the absence of notice from the bailee that the check contains provisions which are intended to become a part of the contract, the bailor is not under legal •duty to read whatever inscription may be upon it.
2. Costs eo nomine were not recoverable by either party at common law. They are the creatures of statutes, and in this state the defendant’s right to recover costs must be made to depend upon our Code provisions. (Spencer v. Mungus, 28 Mont. 357, 72 Pac. 663.)
•Section 9787, Revised Codes of 1921, provides that costs are allowed, of course, to plaintiff upon a judgment in his favor in any of the cases therein enumerated. Section 9788 provides: “Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in the preceding section.” Section 9789 provides for the apportionment or division of costs in actions other than those mentioned in section 9787, and section 9790 likewise provides for the division of costs in an action wherein there are several defendants, defending separately, and plaintiff fails to recover against all of them. Aside from the provisions contained in these last two sections, there is not any statutory authority for dividing or apportioning costs incurred in the district court, and clearly neither of these sections has any application to the cause now before us, since it is one of the actions mentioned in section 9787, and there is but one party defendant.
By enumerating the particular instances in which costs may be apportioned, the statute impliedly excludes the right of apportioning them in any other instances, under the familiar maxim, Expressio unius est exclu-sio alterius, and since plaintiffs recovered a judgment exceeding $50, they were entitled to costs under section 9787, and the court properly struck defendant’s memorandum from the files.
The hardship of this rule of which defendant complains is made manifest, and the argument in favor of a different rule might, with propriety, be addressed to the legislative assembly, but, in the absence of statutory authority, the courts have no discretion in adjudging costs. (Montana Ore Pur. Co. v. Boston & Mont. etc. Co., 27 Mont. 288, 70 Pac. 1114.)
In several states statutes have been enacted to cover cases of this character; for instance, section 14402, Howell’s Michigan Statutes, provides: “Where there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.” The general rule, however, is stated as follows: “Unless there is statutory author ization therefor, costs cannot be apportioned, although both parties be successful in part. Hence, in the absence of such statute, if the plaintiff recovers judgment, although for only part of the relief demanded, he is entitled to costs, as in such cases he is i*egarded as the prevailing party.” (15 C. J. 27.) And again: “In the absence of some special statutory provision for the apportionment of costs, where each party succeeds on one or more of the causes of action, claims, or issues, it would seem that the plaintiff, having obtained judgment for a part of the relief prayed, would, as the prevailing party, be entitled to such costs.” (11 Cyc. 28.)
Section 8167, Revised Statutes of Nebraska of 1913, declares: “Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.” Section 8168 provides that plaintiff shall not recover costs iu certain enumerated cases. Section 8169 provides “Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two preceding sections.” Section 8170 declares that the costs may be apportioned in other cases. In International Harvester Co. v. Schultz, 102 Neb. 753, 169 N. W. 428, the construction of these statutes was before the court in an action in which plaintiff’s complaint stated forty-four separate causes of action, but in which it recovered upon only sixteen. In disposing of the question presented the court said: “Each of the forty-four notes was separately stated as a cause of action. While the suit was pending twenty-eight of the notes were paid to plaintiff by the respective makers, and as to such notes the causes of action were dismissed and judgment was rendered for plaintiff on the remaining notes. Defendant argues that, because the suit was dismissed as to the notes paid,, a part of the costs should therefore be taxed to plaintiff. His contention cannot prevail. The power of courts to award and tax costs in legal proceedings was unknown at the common law, (Bran son v. Branson, 84 Neb. 288 [121 N. W. 109].) We have no statute in this state authorizing the court to apportion any part of the costs against plaintiff in an action involving such facts as are presented by the record before us. It follows that, in the absence of such statute the prevailing party is entitled to recover costs. (15 C. J., p. 28,.sec. 14.)
The several provisions of our statutes governing costs must be construed together and, thus construed, section 9788 must be held to apply only in an action wherein the defendant recovers a judgment and the plaintiff is altogether unsuccessful.
The authorities cited by defendant upon this branch of the case are not in point, as the most casual reading will demonstrate. In Louisville & N. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110, there is not any statute cited, and the only authority for apportioning the costs in that'case is 1 Chitty’s Pleading, section 426, erroneously cited as 412. In United States v. Minneapolis, St. P. & S. S. M. Ry. Co. (D. C.), 235 Fed. 951, the court followed the Minnesota statute and awarded the costs to plaintiff as the prevailing party. In St. Louis S. W. Ry. Co. v. Oliver (Tex. Civ. App.), 37 S. W. 642, plaintiff’s complaint stated two separate causes of action for damages. The trial court found for defendants as to the first cause of action, and in favor of plaintiff upon the second cause of action. The court of civil appeals of Texas disposed of the question of costs by saying: “We are clearly of the opinion that all costs that accrued by reason of plaintiff’s claim for damages alleged to have been suffered in November, 1894 [first cause of action] should have been taxed against the plaintiff.” No statute or other authority is cited in support of the conclusion. In Allison v. Thompson, 2 Swan (32 Tenn.), 202, reference is made to the statute, which provided: “In all actions * * * the party in whose favor judgment shall be given, or in case of a nonsuit, * * * the defendant shall be entitled to full costs.” (Acts 1794, Chap. 1, sec. 74.) The court said: “The statute intends that if the plaintiff succeed in his demand, he shall have costs as an incident; but if he fail, he shall pay costs to the defendant. The same principle will apply where a number of causes are joined in the same action, and the plaintiff succeeds as to some of them, and fails in the others. It is in effect a nonsuit, as to the alleged causes of action in which he does not succeed.” In Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 South. 754, the action was for damages and the declaration contained two counts or causes of action. A general verdict was returned in favor of the plaintiff upon the first count only, and judgment was entered for the amount so found, together with plaintiff’s costs. The supreme court held that the verdict was, in effect, a finding in favor of the defendant upon the second count. The court said: “"Where the verdict is in effect for the defendant on any one or more of the counts of a declaration the costs should be taxed as the statute 'and rules direct.” There is not any reference made to a statute or rale of court, but the judgment awarding plaintiff his costs was affirmed.
Plaintiffs’ motion to dismiss the appeal is overruled and the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-63,
12,
28,
2,
1,
-22,
36,
-7,
0,
37,
3,
16,
32,
8,
14,
-15,
-2,
-28,
5,
32,
2,
-27,
10,
-34,
24,
-43,
-7,
-39,
3,
13,
30,
18,
10,
-7,
16,
19,
-31,
-15,
12,
-14,
7,
3,
51,
-34,
46,
44,
79,
-12,
37,
-11,
47,
-74,
-3,
-25,
-34,
-31,
-12,
35,
1,
12,
2,
-51,
36,
-9,
29,
-27,
-34,
-15,
-62,
55,
-8,
32,
20,
-48,
-5,
-45,
-29,
23,
-58,
1,
35,
-19,
8,
-9,
-48,
6,
-24,
-24,
15,
8,
-36,
37,
3,
3,
42,
16,
-3,
-20,
-31,
6,
3,
-50,
9,
24,
4,
28,
-17,
5,
15,
14,
-3,
28,
-5,
-36,
-24,
-33,
-18,
-36,
-15,
-12,
38,
22,
9,
-42,
5,
39,
31,
34,
31,
59,
-19,
55,
9,
54,
-39,
-8,
-37,
-33,
17,
-11,
-14,
6,
0,
-15,
-5,
82,
37,
26,
-62,
-56,
-9,
28,
29,
22,
12,
-40,
4,
-22,
56,
-41,
24,
-22,
-22,
-18,
11,
5,
32,
-17,
39,
-44,
-31,
-7,
-53,
16,
45,
48,
-19,
-6,
-12,
-8,
28,
14,
1,
-38,
-36,
-27,
37,
23,
-10,
-13,
72,
-74,
-28,
26,
-55,
-11,
-17,
7,
56,
-48,
15,
-53,
-36,
-5,
-17,
23,
33,
-54,
42,
-18,
37,
13,
-5,
-54,
-4,
17,
0,
-25,
-43,
-1,
-14,
-33,
-40,
15,
-21,
-14,
23,
4,
49,
-8,
-56,
18,
4,
18,
7,
-28,
-3,
5,
-24,
1,
15,
-6,
-60,
-41,
41,
11,
-25,
-22,
-5,
28,
0,
-30,
-22,
-13,
13,
-10,
-12,
-21,
-22,
-30,
-16,
25,
2,
-33,
-1,
13,
-17,
-18,
-41,
9,
6,
0,
13,
-5,
-6,
-63,
25,
-9,
21,
4,
2,
-29,
52,
-19,
4,
5,
-29,
29,
11,
-9,
-21,
-23,
21,
9,
43,
40,
48,
-47,
-24,
-5,
-88,
-45,
21,
16,
23,
-11,
-24,
23,
-42,
-33,
-36,
3,
-22,
-29,
21,
44,
12,
13,
22,
25,
19,
37,
6,
45,
35,
-15,
10,
-10,
33,
39,
-4,
6,
2,
18,
-20,
-14,
-16,
-43,
-6,
4,
29,
53,
-3,
-87,
-20,
9,
-14,
-41,
-16,
1,
6,
-11,
-53,
20,
-4,
-18,
27,
6,
-37,
70,
70,
7,
19,
-31,
41,
-3,
-2,
-45,
-11,
7,
-23,
37,
0,
-8,
20,
-15,
-10,
18,
-22,
10,
9,
-52,
2,
0,
35,
0,
-27,
-67,
-15,
34,
-14,
50,
51,
55,
-1,
-28,
-41,
12,
-21,
-3,
-27,
30,
-32,
6,
-10,
-74,
5,
-1,
-51,
1,
-11,
-61,
-24,
-37,
-5,
35,
3,
34,
41,
-45,
79,
52,
2,
3,
64,
-55,
84,
-19,
-31,
-5,
-6,
-1,
-25,
10,
-22,
7,
6,
13,
11,
19,
25,
65,
-57,
26,
-29,
-17,
-1,
32,
64,
-13,
25,
-2,
12,
-23,
3,
18,
59,
-26,
43,
-35,
13,
11,
-2,
37,
-39,
-22,
61,
-28,
13,
45,
26,
20,
-4,
-8,
46,
47,
-31,
-22,
0,
5,
-16,
10,
-7,
38,
16,
23,
8,
-4,
-15,
23,
19,
29,
-30,
-23,
-25,
-2,
-23,
7,
15,
-25,
-52,
3,
32,
10,
10,
10,
12,
-22,
24,
27,
29,
45,
17,
-27,
7,
22,
13,
-11,
42,
23,
-20,
21,
-31,
-17,
-22,
-15,
52,
-3,
9,
-24,
-33,
-2,
-18,
-20,
-38,
0,
28,
0,
16,
-30,
48,
12,
35,
-26,
6,
2,
-10,
8,
42,
12,
19,
-36,
12,
6,
10,
-27,
-45,
7,
-22,
-23,
6,
42,
-24,
-10,
9,
3,
25,
-11,
11,
-14,
-1,
1,
27,
-22,
-10,
26,
-16,
-39,
-9,
31,
-55,
16,
-27,
-26,
7,
18,
16,
13,
-15,
15,
48,
-21,
-7,
6,
45,
-24,
-8,
-29,
-7,
5,
0,
-9,
-2,
6,
0,
-13,
-75,
-6,
-10,
13,
18,
-19,
-27,
-35,
-16,
-18,
-14,
-33,
67,
-16,
4,
-36,
5,
81,
18,
-27,
-51,
-14,
-30,
15,
39,
11,
40,
28,
3,
22,
43,
40,
-57,
-12,
-15,
5,
32,
-22,
-57,
6,
-8,
49,
-4,
-42,
-27,
40,
6,
-10,
-28,
59,
-42,
3,
28,
-7,
-11,
-6,
-28,
21,
-3,
-12,
15,
-11,
6,
-10,
23,
-49,
8,
30,
2,
-32,
-5,
54,
25,
19,
-34,
13,
-14,
21,
19,
21,
-2,
13,
1,
-3,
10,
-42,
-1,
28,
0,
20,
-24,
12,
-4,
-47,
-24,
-43,
-33,
5,
26,
39,
4,
23,
24,
32,
-20,
-39,
-7,
-51,
-56,
-31,
10,
-23,
-72,
3,
17,
-11,
43,
0,
-25,
11,
55,
33,
20,
33,
5,
61,
-61,
36,
-16,
26,
-63,
-32,
14,
-48,
4,
59,
8,
17,
-20,
-7,
-1,
14,
20,
-44,
21,
16,
25,
14,
-22,
-53,
-9,
18,
-2,
-52,
33,
-17,
-7,
30,
-14,
0,
-14,
-38,
-39,
0,
-12,
-16,
-14,
-43,
-9,
23,
24,
19,
33,
24,
-48,
3,
-47,
15,
10,
30,
-21,
-5,
26,
50,
-26,
-20,
-8,
-29,
-42,
3,
-1,
18,
-13,
16,
8,
-27,
11,
29,
17,
28,
-10,
-12,
8,
2,
8,
-17,
11,
15,
37,
6,
30,
-10,
16,
-24,
1,
14,
-48,
40,
67,
-42,
-15,
-4,
-46,
2,
26,
-88,
-96,
27,
-9,
30,
41,
10,
-6,
-29,
-7,
5,
-57,
59,
5,
-3,
-18,
39,
-39,
-33,
-40,
-24,
-16,
28,
-5,
-29,
-13,
7,
57,
3,
0,
-47,
-7,
25,
42,
26,
-24,
-11,
-41,
46,
25,
76,
16,
9,
-4,
-4,
-13,
23,
69,
5,
-32,
-24,
-5,
45,
-14,
34,
-1,
9,
-20,
-10,
29,
-5,
-21,
0,
2,
-18,
-25,
-28,
102,
-35,
20,
-31,
-9,
21,
-11,
-12,
-17,
-33,
-32,
-8,
38,
-38,
4,
10,
5,
-31,
-8,
21,
16,
33,
10,
-5,
-18,
45,
-1,
6,
10,
36,
3,
67,
-65,
33,
14,
28,
43,
-8,
-34,
-40,
0,
-24,
-9,
-59,
19,
24,
-11,
-49,
8,
-21,
-16,
15,
71,
52,
1,
93,
2,
-24,
-60,
-41,
10,
-16,
-61,
-21,
15,
17,
27,
15,
-12,
-23,
-21,
4,
-59,
-35,
14,
-13,
19,
-26,
26,
20,
-25,
32,
58,
-32,
-30,
-1,
64,
-6,
-14,
-12,
-59,
25,
-14,
32,
32,
-9,
-20,
-15,
15,
-23,
-13,
-33,
-20,
-39,
15,
16,
-8,
-10,
35,
17,
-9,
7,
-12,
-26,
11,
15,
4,
8,
-9,
10,
-63,
0,
15,
-6,
14,
33
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The defendant, having been convicted of the crime of murder in the first degree, moved for a new trial, which was denied, whereupon he appealed to this court.
1. After the appeal was perfected, the state asked leave to file a supplemental transcript consisting of corrected minutes of the lower court showing that at all stages of the trial the defendant and his counsel personally were in court, the original minutes of the court, and consequently the original transcript, having failed to show- the fact. The defendant opposes the filing of the supplemental transcript upon the ground that upon the face of the original transcript the appellant is entitled to a new trial, and his counsel puts the question: “Can the district court, after an appeal is taken, so correct and add to its record as to change the status quo of the appellant’s rights upon the appeal?” He insists that this court must pass upon the record as it existed at the time the motion for a new trial was denied.
It appears that after notice to defendant’s counsel, and upon a proper showing made, the district court amended its minutes to show that the defendant and his counsel were actually present at all times during the trial. It is not contended that in amending its minutes the court did not state the facts. In other words, the defendant does not contend that he was not actually present in person and by counsel at all times during the trial, but simply that the minutes of the court as they appeared when the motion for a new trial was heard and denied did not thus show affirmatively.
There is no doubt that every court of record has the inherent right to cause its acts and proceedings to be set forth correctly in its records. (Currey v. Butte Electric R. Co., 60 Mont. 146, 199 Pac. 243.) This is the rule in civil actions and there appears to be no reason why it is not applicable in criminal ones. (People v. Ward, 141 Cal. 628, 75 Pac. 306; Kaufman v. Shain, 111 Cal. 16, 52 Am. St. Rep. 139, 43 Pac. 393; In re Tucker, 4 Okl. Cr. 221, 111 Pac. 665; In re Breeding, 75 Okl. 169, 182 Pac. 899; Benedict v. People, 23 Colo. 126, 46 Pac. 637; Mulligan v. People, 68 Colo. 17, 189 Pac. 5; State v. Winter, 24 Idaho, 749, 135 Pac. 739; State v. Gilbert, 55 Or. 596, 112 Pac. 436; Mitchell v. State, 45 Fla. 76, 33 South. 1009; State v. Hart, 133 La. 6, 62 South. 161.) Inasmuch as the court retains, possession of its minutes and records it has the power to correct and amend the same, so as to make them conform to the truth, whether an appeal is taken or not. (15 C. J. 977.) While, appeal being taken, the court loses jurisdiction of the case, it does not of its records, and where by reason of misprision of the clerk or where through inadvertence or mistake some matter has been omitted from the record, the correction may be mad'e. The power of correction is confined, however, to showing truly the history of the proceedings before the appeal, and the lower court has no jurisdiction pending an appeal, by amendment of its records or proceedings, or otherwise, to change the status of the case, so as to interfere with the substantial rights of the parties. (3 C. J. 1265; Bull y. International Power Co., 84 N. J. Eq. 209, 93 Atl. 86; Guernsey v. Miller, 80 N. Y. 181; Andersen v. Lederer, 53 Neb. 128, 73 N. W. 664; Fay v. Stubenrauch, 141 Cal. 573, 75 Pac. 174; Channel v. Merrifield, 206 Ill. 278, 69 N. E. 32.) The trial court having had the right to amend its minutes so as to state the truth, the precise question now presents itself as to whether the amended record may be filed in this court. It would be a strange commentary upon justice if this court should refuse to permit the truth to be shown, no question as to its jurisdiction or power so to do being involved, and it appearing affirmatively that no substantial right of the defendant will be affected in any way. The state’s motion for leave to file the amended transcript is granted. (Pappot v. Howard, 154 Ala. 306, 45 South. 581; Breene v. Booth, 3 Colo. App. 470, 33 Pac. 1007; Hudson v. Blanchard, 3 Conn. 579; Adams v. Higgins, 23 Fla. 13, 1 South. 321; Culbertson v. Salmyer, 111 Iowa, 447, 82 N. W. 925; Chambers v. Swango, 22 Ky. Law Rep. 923, 59 S. W. 20.)
2. The crime for which the defendant was convicted arose out of the shooting of Joe Oswald on the evening of July 11, 1922. Oswald lived on his farm about thirty-five miles northwest of Havre. The defendant, "Wilson B. Poole, known among his neighbors as Bill Poole, was living as a tenant on what is known as the Kemp or Simpson place, about six miles north-west of the Oswald place. He had a family, consisting of a wife and five children, including a seventeen year old son, Howard Poole. The defendant owned a homestead located north and east of the Oswald place, the buildings on the Poole homestead being about three-quarters of a mile northerly from Oswald’s house. A road running east and west passed the Pioneer schoolhouse, about half a mile farther east the Oswald house, and a half mile still farther east intersected a road running north and south which the witnesses called the lane road. At the point of intersection on the north defendant had placed a barbed wire gate across the lane road. Just northeasterly of this point there was a field which Howard Poole had planted to wheat, but the crop had been ruined by hail recently. Up the lane road from the gate about a quarter of a mile a road, called the Lake trail, took off to the northwest. This ran close by the buildings on the Poole homestead and continued in the direction of the Simpson place.
Essentially, the defense was based upon an alibi, and an attempt to show that the shooting was done by the defendant’s son Howard. Before proceeding to a narration of the moving events which make up the story of the tragedy and trial it is well to note the fact that Poole and Oswald had not been on friendly terms for a number of years. About two years before the shooting they had engaged in an altercation of some kind. About the first of May, 1917, so a witness testified, Poole said he was going to kill Joe Oswald, skin him and hang his hide on the fence along the road. This the defendant denied. Another witness said that on or about the 23d of June, 1922, the defendant told him there were two men he was going to get, Jess Miller and Joe Oswald. This testimony was denied by defendant as well as by another witness who was said to have been present at the alleged conversation. Whether the statements were made or not, there does not seem to be any doubt that ill feeling existed between the two men.
Oswald left his farm about 6 o’clock in the evening of Tuesday, July 11, going to the farm of a neighbor which is about a mile and a half in an easterly direction from the Oswald home, for the purpose of returning a hayrake. He left the neighbor’s place for home about half an hour before sundown. As he reached the vicinity of the wire gate he found that three of his oxen had broken into the Howard Poole field. Leaving ihis team, he went into the field and drove the oxen out. As he was doing this he saw the defendant and Freddie Poole, a boy ten years old, in tbe grain-field in a northerly or northeasterly direction from him about 150 yards distant. Oswald then got in his wagon and drove home. Later, seeing the oxen turn back into the field he ate a hasty lunch and went back to the Howard Poole field on foot to drive the oxen from the field again. When he got near the lane, he cut diagonally across the field on his left. Seemingly he crossed the lane road 175 feet from the gate. Just how far he went from there is not clear, hut he “turned to drive the cattle, or oxen, as he called them, out again, and when a couple of rods from the gate, across the line, there was a shot fired, and the ball passed over his head. He said he looked around and another shot was fired and it hit him in the side or the back.”
Tlie foregoing is from the dying statement made by Oswald on Friday evening when in a hospital at Havre. It was made in the presence of the county attorney, the sheriff and two deputy sheriffs, one of whom was the witness Herron, whose language is quoted. Oswald said Poole, when he fired the shots, was fifty or sixty yards distant and after shooting went north; Poole was alone. As Herron remembered the testimony Oswald said the shooting was about sundown. During his statement Oswald was asked this question: “Who done the shooting? Do you know?” To which he answered: “Yes.” “Who was it?” “It was Bill Poole.” His questioner then said: “Mr. Oswald, isn’t it just possible that you might be mistaken in the party that done the shooting?” And he said: “No; I am not mistaken. I know Bill Poole, and I seen Poole shoot me, and it was Poole that shot me.” Asked again if he could not be mistaken as to who shot him, he said: “No; I swear by the stars, my wife, and my God that it was Bill Poole. ’ ’ To the sheriff Oswald made this declaration, and this was the manner of it: “He put his hand on his breast and said: ‘By my wife and children and by my God I swear that Poole shot me.’ ” As a part of Ms dying statement, Oswald said he thought he was going to die and reqiiested that his ■wife and children might come in as he should like to see them before he passed a.way. The next morning, about 9 o’clock, he repeated practically what he had said the night before. That afternoon he died.
Upon this dying statement the judgment of conviction mainly rests. Counsel for defendant admits defendant is guilty if this statement is true. The circumstances attending the statement seem to have been of unusual solemnity. Looking toward the mystery into which he was so soon to enter, calling upon those dearest to him on earth and appealing to the Infinite for the truth of what he affirmed — under these circumstances it is incredible that Joe Oswald willfully falsified.
But counsel argues that upon the physical facts alone the statement could not have been true. This assertion is based, first, upon the hypothesis that it was so dark when Oswald was shot that he could not have recognized a man fifty or sixty yards away. Upon being shot, Oswald walked directly home, a half mile, and told his wife what had happened. Her son, Joe Oswald, was at church at the Pioneer sehoolhouse. Two other children were in bed. The eldest of the two, Elizabeth, was told of the shooting and to go to the church for Joe. Elizabeth “didn’t waste any time getting dressed,” and went to the sehoolhouse as fast as her legs could carry her, as she said. Church was just out. The services closed at 9:40, and at that time, according to the minister, Mr. Nelson, it was very light; he could have recognized a man 100 yards away. That night the sun set at 8:22 and the moon rose at 9, according to the testimony. The witness Hammon testified that it was light when he entered the church at or shortly before 9 o’clock. At that time he could have recognized a man a quarter of a mile distant. There was some contradictory testimony as to the character of the evening and upon the question of visibility; but the jury was fully warranted in believing that Oswald could have recognized Poole on that evening at the time of the shooting even if the men were 200 yards apart.
Again counsel for the defendant urges that, based upon the tracks found at different points in the Howard Poole field as well as in the lane road, and considering these with reference to where a Winchester shell was found in the lane road, Oswald’s statement could not have been true. Upon a careful analysis of all the testimony bearing on this point we fail to find any merit in this contention. Where the slayer stood when he fired the shots no one knows but himself. His tracks made on the occasion of the shooting were not traced at all. For aught that appears from the evidence of physical facts he may have been fifty or sixty yards away from Oswald when the shots were fired as Oswald related. The lane road was overgrown with thistles and weeds; footprints were not discernible except in the wagon ruts. Assume that Oswald’s slayer intended to kill him; can it be supposed that this murderer did not take the ordinary precaution of walking where his tracks might not be traced? The only tracks made by defendant which were identified were those made by him when he was with his son Freddie on the occasion when Oswald first drove the cattle from the wheat-field. The Winchester shell was found in the wagon rut at a point somewhere from 150 to 200 yards northerly from the lane gate. By reason of marks upon it similar to those appearing upon a Remington shell found in defendant’s gun undoubtedly it was fired from that gun but whether on the occasion of the shooting no one but defendant knows. That it was found at the point above mentioned was a circumstance before the jury and no doubt was considered by them. It may be inferred that a shell was fired 'close to where it is found, but that is a mere inference at best. People have been known to pick up shells ejected from their guns and to carry them considerable distances.
When the defendant was arrested, the officers took from his house a 25-20 Winchester rifle. In the barrel there was an empty Remington shell. In the magazine there were both Remington and Winchester cartridges. The bullet found in the body of the deceased was from a Winchester shell. Consequently counsel for the defendant argues: If but two shots were fired at Oswald, the first missing, the second, a Winchester bullet, hitting, the second shot could not have been from the defendant’s gun because of the Remington shell found in the barrel of it. But it is apparent that it is a simple act to replace an empty shell in a gun. If the defendant designedly and cold-bloodedly shot the deceased, and beyond any question the slayer did so shoot him, that man was subtle enough to have made such disposition of the shells used by him as he thought would serve to protect him.
Another bit of evidence presents itself here. Shortly after Hammon went into the schoolhouse Goldie Miller came in and sat near him. Goldie, a girl eleven years of age, previously had gone out to take care of a baby in her charge. While outside engaged in this duty, she heard three shots which came from the east, and the minute she heard them she went into the schoolhouse. This was not far from 9 o’clock. It is clearly possible that the three shots Goldie Miller heard were fired by the defendant; the first two being from Winchester shells, and the third from the Remington shell found in his gun. This is conjectural merely, but the hypothesis upon which counsel for defendant argues with respect to these shells is conjectural also. Summing up all the testimony, if the jury concluded that the shots heard by Goldie Miller were those fired at deceased there was ample to warrant that conclusion. To be sure Oswald spoke of but two shots. But it may be observed that where a man is being fired at by another with deadly intent, receiving a mortal wound at the second shot, it would not be strange if his memory failed to register a third shot. Ordinary observation and common sense say so. Time and again disinterested eye-witnesses to a shooting do not agree upon the number of shots fired. People differ greatly in their powers of observation and the use of those powers — their perceptive faculties differ. (State v. Belland, 59 Mont., at page 556, 197 Pac. 841.)
Statements made by defendant at the time of his arrest compared with testimony given by him on the trial, contradictory statements by his sons, doubtful testimony given in his behalf by others, and the surrounding circumstances tended strongly to convince the jury that the defendant is the guilty man. Indeed, it is proper to say that the evidence commanded the verdict the jury found.
One ground upon which defendant based his motion for a new trial is newly discovered evidence. Mainly this rests upon the affidavit of his son, Howard Poole. In order to make plain what follows, it is necessary to narrate some of the testimony. Defendant testified that on the eleventh day of July he left the Simpson place and went to his homestead, taking Freddie, his boy, with him. They had two teams, defendant driving one and Freddie the other. The defendant had attached to his wagon two mowers, and Freddie had attached to his wagon a hayrake. After arriving at the homestead they started mowing and continued until about 5 o’clock. They then went to the barn and turned out the horses. After that they went to Howard Poole’s wheat-field southeast half a mile.
It is important to note here that, when Freddie went with the officers on Saturday afternoon, July 15, to show them where he and his father had walked in the grain-field on the evening of July 11 he told the officers repeatedly that it was about sundown when Oswald came by the lane gate and he related the movements of Oswald, as well as of his father and himself, at that time to correspond with what Oswald said in his dying statement. Freddie even put his foot into tracks made by him when with his father on Tuesday, to demonstrate the truth of what he was saying. His foot and the tracks corresponded exactly. These tracks were 225 feet north from the lane gate.
It is in evidence that when the county attorney and two deputy sheriffs first interviewed the defendant on July 12 he said he had not been upon that homestead for three weeks until the morning of the 12th. He was asked what difficulty he had had with Joe Oswald on the evening of the 11th and said he had not seen Mr. Oswald nor had any difficulty with him. He was asked when he had brought the machinery to the homestead from the Simpson place, and said, “On the morning of the 12th,” and later, being ashed the same question, said he brought it over on the morning’ of the 11th. Asked which statement was correct he replied he brought part of it over on the 11th and part on the 12th. When asked what he had brought over on the morning of the 12th he said he had trailed a mowing machine behind his wagon, and upon the suggestion being made that in such ease the tracks of the mower must be visible he grew angry, called the ‘county attorney a kindergarten detective and applied to him indecent language. He admitted talcing the 25-20 Winchester with him when he went to his homestead on Tuesday morning, but said he did not shoot that or any other gun that day. After telling of being in his son’s wheat-field with Freddie, he said he and Freddie hitched up and started for the Simpson ranch, traveling with a team and wagon. The wagon had a narrow tire. It took about two hours to go to the Simpson place and they arrived there just after sundown; it was not dark when he unhitched and put his team in the barn. After putting the team in the barn, he and Freddie went to the house and got supper. It was light when they were eating supper, and they did not have a lamp. He did not leave the house that night. He said, when he arrived his son Howard was there, remaining twenty minutes. “After I got there, he went away on horseback. I do not know where he went. Pie came back the next morning. He was not there that night, until the next morning; he had a 25-20 rifle.”
On cross-examination, he said Howard went away with a saddle-horse, started north from the corral right in the rear of the house and traveled in a northerly direction; he rode on a walk. “The next time I saw him was the next morning, about half-past 5. He rode into the place from the south. * # * I know that had been out all night. I did not inquire of him where he had been. He is seventeen years old. I was busy getting ready, and it did not excite my suspicion or curiosity as to why he had been out all night. Occasionally lie is in the habit of doing that. I never asked him where he was.”
The defendant testified that on the morning of the 12th he - left the Simpson place at about 5 or 5:30 and usually it took him from one and one-half to two hours to travel from that place to the homestead. Freddie went with him. They took 'the same wagon they used the night before. That same day Mrs. Poole and the three other children went to the home_stead, reaching there between 9 and 10 o’clock in the morning. Mrs. Poole went in a wagon with tires three inches wide.
However, three witnesses testified they saw the defendant at his homestead between 5 and 6 o’clock on the morning of July 12, and others made an examination of the road and found no tracks upon it whatever except those made by the broad wheels of the wagon driven by Mrs. Poole.
Howard Poole testified that his father returned to the Simpson place on July 11 about sundown and then said: “When my father got back home on the evening of July 11, about sundown, I didn’t stay around there. I left shortly afterward on horseback.” He went north. His grain-field was seven miles distant to the southeast. “I had a 25-20 rifle with me; I did not have the one that is in evidence here; I don’t remember if I went down to the home ranch after that; I don’t remember where I went. ’ ’ He then said he was gone all night but did not remember where he was. Being pressed further, he refused to answer, and upon being asked why said: “It might incriminate me.” It developed that he did this upon “the advice of the lawyer.” This followed: “Q. When did you get this advice? A. Eight before the trial. Q. Did you have reason to believe I was going to ask you that question? A. No. Q. What made you get the advice then? You must have thought I knew something about it. A. I don’t see why you are asking me the question now; you never asked me before.” The advice was obtained from a lawyer or lawyers not connected with the trial.
On the morning of July 12 Howard Poole told Lena Yan Riswick, so she testified; that he had been at the Simpson place the entire night of the 11th and that his father and his brother Freddie had spent that night at the homestead.
Ingwald Nagelhouse, who lives two and one-fourth miles west and south of the Simpson place, testified that he saw Howard Poole half an hour before sundown on July 11 about three-quarters of a mile from his (Nagelhouse’s) place and • then talked' with him about fifteen minutes.
According to the testimony of the defendant it took him two hours to make the trip from his homestead to the Simpson place. If he and Freddie saw Oswald at sundown, as Freddie told the officers, defendant could not have arrived at the Simpson place until after 10 o’clock that night. If defendant left the homestead half an hour before sundown, as he said, he could not have arrived before 10 o’clock. If Howard Poole did not leave the Simpson place until twenty minutes after his father arrived it was of course impossible that he could have done the shooting because upon the testimony no conclusion can be arrived at other than that Oswald was shot about 9 o’clock that night. The evidence was sufficient to convince any jury that the defendant and his son Freddie did not go to the .Simpson place on the evening of the 11th but on the contrary spent the night at the homestead.
Howard Poole’s testimony was adduced after the noon recess on the second day of the trial. Immediately following a recess on that afternoon and while the defendant was on the stand an offer of proof was made by him in which he offered to show that he did not know that Howard Poole would refuse to answer the questions set forth and did not know that such questions were to be asked of Howard, and further offered to prove that he did have knowledge to the effect that Howard "had been accused by the attorney for the defendant of having done the shooting in question, and did not deny the same, which information was conveyed to defendant some time after court convened on the morning of December 2.” The trial •was concluded on December 5.
Counsel for defendant, in his opening statement to the jury, said in part: “I believe I can show to your satisfaction, at least, that this shooting was not a case of murder in the first degree, but a case of accidental shooting, pure and simple, and I believe I can show before we are through who did the shooting. * * * That there was a crop of wheat owned, not by the defendant, Poole, but by his son, Howard, not on the land owned by Poole, or rented by him, but, as I understand it, on land rented by Howard Poole, his son, who is somewheres around twenty years of age, or younger. * * * Now we are going to show you, I believe, that that night Mr. Poole carried his rifle from his home that morning, as was his custom to carry his rifle, to his homestead, and left it there that night, and I believe that I can show you the party, other than W. B. Poole, who went to the place that night, and that there was a shot fired at the cattle, and in the darkness, by mistake, Oswald was shot.”
In his concluding argument to the jury Mr. Griggs, after calling attention to the testimony of Howard Poole and referring to that young man’s conduct upon the stand, said: “If I am convinced that some other person than the defendant is the man who is guilty, it is my duty, if possible, to bring that fact out, and let the law deal with that person as it sees fit. I do not say that this was excusable homicide; but I say this, gentlemen, and the facts bear it out: Young Howard Poole, seventeen years of age, had his first — undoubtedly his first — crop of grain. His father came home and told him of the cattle in his field, and of course he, with due haste, rode down there horseback and fired those shots, and in the darkness — I will give him the best of it — shot Joe Oswald by mistake. Maybe he intended to shoot him; I don’t know. * * # That testimony, in connection with the testimony of the actions of Howard Poole, discloses without a doubt that the gun which fired the fatal shot in this case was not in the hands of Wilson B. Poole, but in the hands of his son, Howard, * * * and when you see how Howard Poole acted on the stand, and refused to tell us what he did on that night, why, gentlemen, it is not a question of reasonable doubt.”
In Ms affidavit Howard Poole among other statements told of Ms ownersMp of the field of wheat adjoining defendant’s homestead, of the return of his father to the Simpson place near sundown, “the exact time to this affiant being unknown,” and that either his father or Freddie informed Mm of having seen cattle belonging to Oswald in the wheat-field; that he became angered and immediately mounted his saddle-horse and rode to the homestead; that he carried with him a 25-20 Marlin xfifle and arrived at the homestead “at just about dark, the exact time being to this affiant unknown”; that he rode diagonally across the same to the wheat-field and upon arriving there, on account of the darkness, could only distinguish the forms of several head of cattle in the wheat-field; that he did not see any person in the wheat-field, or near the cattle, aixd did not have any knowledge or information that Oswald or any other person was within the field or near the cattle; that in order to frighten the cattle he fired two shots directly over the heads of the cattle but in so doing he did not intend to hit the cattle but merely to drive them out of the field. We interrupt here to observe that while he deposed that he shot over the heads of the cattle the deceased was hit in the side or back. Continuing, the affidavit says that immediately after the two shots were fired he saw what he took to be the form of a man “at or near the point toward which he had fired” and the form then went toward and through the fence to the south and out into the country road and disappeared; that the affiant at that time did not know who the man was and had no knowledge or information that he had shot the man; and then becoming frightened and without driving the cattle out of the grain he returned to the house on the homestead and remained there all night, but being unable to sleep arose before daylight and returned to the Simpson place about day light. After his father was arrested, believing a conviction impossible, and fearful of the consequence to himself, he decided that under no circumstances would he tell the facts, unless his father should be convicted. That he did not inform the defendant, or his attorneys or any other person of the shooting until after the trial and conviction of the defendant, when he told the above facts for the first time to Mr. Griggs.
Indulging in the assumption that this affidavit presented a question of newly discovered evidence, it seems plain enough that, when analyzed in connection with the testimony. in the case, the known physical facts and the circumstances surrounding the entire transaction, the trial court was warranted in disregarding it.
''In In re Colbert’s Estate, 31 Mont. 461, on page 485, 80 Pac. 248, at page 250 (107 Am. St. Rep. 439, 3 Ann. Cas. 952), this court, speaking through Mr. Commissioner Clay-berg, said: “It was the duty of the trial court on the hearing of the motion for a new trial, ‘to take into consideration the weight and importance of the new evidence, its bearing in connection with the evidence on the former trial, and even the credibility of the -witnesses.’ (State v. Stain, 82 Me. 472, 20 Atl. 72; Leyson v. Davis, 17 Mont. 220, 293, 31 L. R. A. 429, 42 Pac. 775.) But, again, a motion, for a new trial should not be granted on newly discovered evidence unless such evidence makes it clearly -probable that it will produce a different result on the retrial. (State v. Hardee, 28 Mont. 18, 72 Pac. 39.) ”
Conceding for the purposes of the discussion that the offered evidence was newly discovered within the rule, it must be borne in mind that the trial judge observed the demeanor of all the witnesses who testified in this case, including Howard Poole. If we were merely in doubt as to whether the “newly discovered” evidence was material we should not disturb the action of the lower court which thus exercised its discretion in passing upon the weight and materiality of this offered evidence; but, as is above indicated, we are not in any doubt whatsoever.
In passing on a motion for a new trial, tbe lower court is called upon to exercise a sound legal discretion. In the absence of a. clear showing of error in this regard, this court will not interfere. (State v. Mott, 29 Mont. 292, 74 Pac. 728.) The defendant has had a fair and impartial trial. The court was right in overruling the motion.
The judgment is affirmed.
Affirmed:
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
14,
27,
-1,
-4,
3,
-66,
-67,
-44,
-2,
37,
35,
6,
13,
-40,
1,
-22,
-26,
-55,
53,
0,
-23,
-15,
42,
6,
-26,
-24,
-24,
-11,
-5,
-52,
47,
-15,
-44,
-37,
36,
4,
94,
51,
-34,
71,
-1,
-18,
77,
-72,
-34,
24,
10,
6,
39,
-8,
21,
-9,
-50,
27,
-23,
41,
-24,
19,
-16,
25,
1,
50,
8,
-37,
15,
10,
34,
-32,
-36,
-33,
-23,
-22,
-13,
2,
-23,
-37,
-29,
-23,
15,
-15,
0,
41,
41,
-18,
-23,
-30,
-6,
-62,
19,
10,
18,
23,
26,
-39,
31,
18,
37,
-35,
5,
-14,
-22,
24,
9,
-8,
2,
6,
-40,
-4,
41,
3,
44,
28,
-14,
-7,
-63,
-30,
8,
-23,
-21,
-25,
38,
-16,
-8,
2,
21,
2,
-23,
-7,
48,
15,
-53,
56,
10,
-4,
44,
-15,
-21,
-13,
-10,
12,
5,
-29,
31,
-31,
64,
7,
-15,
58,
10,
58,
57,
5,
-21,
45,
19,
-35,
-39,
-56,
-16,
24,
59,
26,
-23,
0,
-16,
71,
-57,
-56,
16,
-60,
-27,
-16,
27,
2,
9,
43,
-33,
-3,
4,
-39,
-9,
44,
70,
-78,
-22,
26,
-1,
13,
29,
-3,
-52,
42,
-17,
-59,
54,
-29,
7,
1,
42,
-8,
13,
-14,
52,
22,
39,
8,
-50,
-10,
57,
-6,
-32,
2,
-2,
-11,
-15,
-54,
68,
-10,
-20,
59,
-16,
31,
20,
-36,
-15,
35,
24,
36,
-11,
18,
-6,
20,
8,
-37,
-28,
13,
7,
-15,
1,
-26,
-10,
-3,
68,
-62,
9,
71,
25,
2,
-31,
-32,
1,
24,
25,
-11,
-3,
-21,
50,
1,
-60,
-70,
75,
27,
2,
22,
-27,
31,
-24,
-7,
-26,
10,
2,
-79,
33,
9,
-10,
-14,
47,
-44,
9,
21,
24,
23,
56,
16,
-47,
-2,
-16,
53,
11,
35,
18,
-5,
-62,
18,
12,
23,
56,
75,
8,
37,
-4,
-45,
-26,
-19,
23,
-23,
-15,
-11,
-29,
3,
30,
68,
34,
57,
22,
50,
-19,
1,
36,
-27,
-50,
-23,
-3,
-11,
79,
-16,
43,
-12,
-10,
-2,
16,
-5,
50,
25,
24,
-20,
-31,
-12,
4,
33,
-17,
-28,
-18,
-1,
11,
32,
-17,
-40,
-28,
7,
2,
-44,
-6,
-18,
13,
-63,
-7,
-62,
21,
-74,
58,
-2,
-1,
-44,
-21,
25,
-16,
-28,
15,
19,
-3,
-46,
-33,
-20,
-4,
-4,
40,
-13,
-9,
4,
-23,
-44,
-48,
-55,
42,
40,
-2,
3,
72,
24,
11,
-16,
19,
-33,
-30,
15,
-13,
3,
19,
-21,
-26,
-32,
20,
-25,
-35,
3,
-61,
43,
7,
52,
6,
17,
-9,
34,
25,
-14,
-34,
-16,
31,
-20,
1,
-51,
21,
30,
37,
62,
12,
2,
12,
-40,
3,
-4,
-16,
12,
-34,
57,
-8,
-11,
28,
3,
-69,
-15,
-60,
12,
-16,
22,
-1,
-22,
16,
60,
-11,
0,
30,
-52,
10,
23,
-1,
27,
7,
-15,
25,
-17,
-44,
52,
50,
-31,
-64,
-24,
-16,
30,
40,
-22,
17,
39,
15,
-6,
3,
8,
25,
-39,
13,
-59,
7,
17,
-41,
11,
-33,
-45,
41,
-23,
-38,
77,
-3,
-44,
-37,
-4,
-11,
-26,
-4,
-9,
-27,
-56,
18,
-15,
-4,
3,
36,
-59,
42,
13,
36,
78,
4,
4,
34,
3,
50,
1,
17,
-17,
-14,
1,
25,
-27,
-23,
-32,
-18,
-24,
17,
-10,
21,
18,
-22,
-5,
1,
-2,
-28,
-3,
-31,
-25,
40,
23,
15,
18,
-26,
-1,
24,
20,
8,
7,
46,
-18,
-28,
-33,
-17,
-3,
-10,
21,
20,
-53,
42,
5,
7,
29,
2,
43,
-31,
-15,
-7,
-13,
6,
-13,
-33,
-18,
17,
-38,
31,
-9,
43,
-11,
10,
-11,
-9,
-27,
-26,
0,
-15,
25,
76,
30,
-19,
3,
-25,
-34,
-31,
25,
-35,
-75,
21,
13,
51,
33,
-8,
36,
38,
58,
19,
-6,
17,
-12,
-15,
-55,
-7,
-19,
-42,
4,
-17,
13,
-20,
51,
-1,
-8,
-4,
-11,
7,
-55,
-46,
-15,
-34,
18,
26,
-5,
5,
33,
-46,
-5,
-2,
18,
-4,
-1,
26,
24,
38,
-40,
-15,
-10,
30,
25,
24,
-27,
3,
16,
12,
-47,
32,
-22,
-13,
35,
54,
-46,
-24,
8,
-73,
-21,
20,
20,
34,
-66,
12,
20,
75,
-1,
-10,
4,
-14,
23,
-22,
-28,
10,
-7,
4,
-37,
12,
13,
18,
-14,
-23,
8,
-4,
39,
-13,
-5,
39,
41,
15,
-16,
25,
19,
-45,
-82,
12,
-35,
45,
-14,
4,
-43,
35,
-28,
12,
-1,
19,
-38,
-27,
-7,
0,
-7,
22,
9,
-6,
18,
18,
1,
-6,
-11,
-13,
44,
6,
25,
58,
-37,
3,
8,
-34,
40,
-27,
16,
-2,
-17,
13,
34,
-43,
-1,
-5,
-45,
10,
59,
31,
-40,
26,
15,
87,
21,
-11,
-22,
-49,
95,
43,
-69,
-47,
8,
36,
-6,
15,
-40,
-51,
2,
53,
3,
19,
46,
-12,
-66,
46,
47,
-14,
36,
36,
8,
-9,
-21,
5,
32,
-56,
15,
44,
37,
-25,
30,
-35,
-18,
22,
-23,
-87,
49,
0,
-23,
40,
-5,
-17,
62,
1,
-37,
43,
13,
55,
-25,
4,
20,
-21,
-32,
41,
18,
-8,
12,
16,
-48,
-2,
-2,
-3,
-43,
3,
10,
24,
27,
38,
-5,
-17,
-19,
-37,
47,
19,
-9,
-8,
46,
-14,
-26,
41,
55,
-53,
22,
-1,
23,
3,
7,
-25,
22,
-43,
14,
15,
7,
-8,
14,
5,
-4,
-67,
-36,
-10,
-18,
27,
3,
8,
47,
-16,
0,
14,
-5,
11,
18,
-10,
-26,
-34,
-4,
-8,
22,
-7,
65,
-16,
15,
21,
5,
-15,
-24,
5,
-13,
5,
-60,
4,
-37,
-2,
-37,
-5,
-4,
21,
12,
4,
-24,
-2,
-7,
2,
-14,
-3,
-53,
7,
17,
50,
-6,
-3,
-10,
-14,
18,
7,
-10,
3,
-48,
18,
-10,
-54,
-37,
69,
-46,
-42,
19,
-13,
-25,
16,
-41,
6,
-12,
-4,
34,
-8,
-22,
-20,
-52,
38,
8,
9,
-42,
-26,
-3,
-40,
8,
12,
21,
-49,
17,
-44,
-27,
-49,
5,
-7,
-17,
7,
56,
68,
-36,
23,
-22,
2,
7,
-2,
22,
-8,
18,
-11,
-22,
-22,
1,
-17,
58,
41,
-16,
47,
-16,
-16,
10,
42,
5,
-24,
-4,
0,
-2,
-25,
6,
-16,
63,
10,
-23,
1,
0,
0,
-13,
-21,
0,
-32,
3,
-14,
1,
-26,
-16,
-34,
70,
-4,
33,
-10,
-57,
-37,
0,
-19,
-19,
10,
18,
28,
-19,
-25,
-27,
17,
-23,
-55,
24,
-24,
-29,
-12,
3
] |
HONORABLE A. C. -SPENCER, District Judge,
sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court.
Plaintiff commenced this suit against defendants, alleging in her complaint two causes of action, the first for a conversion of certain personal property and seeking recovery of its reasonable value, the second claiming damages for the wrongful, unlawful and forcible entry of her home by the defendants and their wrongful and continuous occupancy after such entry. The record discloses the facts to be substantially as follows: In February, 1918, Antone Himmelbauer left the state of Montana, his wife, Mabel Himmelbauer, plaintiff and appellant herein, remaining and living at No. 622 Harrison Avenue, Helena, Montana, with her mother until early in March of the same year, when plaintiff and her mother, Mrs. Cloutier, left for Portland, Oregon. For a long time prior to the departure of the plaintiff and her husband they had lived and made their home at this same residence in Helena. Upon April 1, 1918, the defendant Union Bank & Trust Company caused a writ of attachment to issue out of the district court of the first judicial district for Lewis and Clark county, in an action wherein this plaintiff and her husband were defendants and the Union Bank and Trust Company was plaintiff, and on that day the sheriff of Lewis and Clark county, at the instance of the plaintiff bank, entered the house at 622 Harrison Avenue, in Helena, and levied upon and took possession of certain household fur nisMngs and personal property situated therein, made an inventory thereof and placed a custodian in charge. All of this was done during the absence of this plaintiff and her husband.
The evidence shows that on April 1 the sheriff, accompanied by Joseph Chivers, representing the bank, on their way to make the levy met Charles Hageman, a constable, on Harrison Avenue, who accompanied them to the house. Hageman produced a key, unlocked the door and thus was the entrance made. The record does not disclose any previous arrangement between the sheriff and Hageman for their meeting and entrance, nor is it explained in the record what key Hageman used to effect the entrance nor by what means he obtained the key. He got the key from his pocket. Hageman told the sheriff he had attached that property the day before. Plaintiff and her mother returned subsequently and found a keeper in charge of the property. Various keepers and custodians were placed in possession, all of whom retained its possession at the place where attached until April 19, 1918, when Mrs. Cloutier, the mother of plaintiff, was by agreement of all parties made custodian, she remaining as such until the property was removed from the house on May 18 following. During all the time between the levy on April 1 and Mrs. Cloutier’s assumption of her duties as custodian on April 19, the various keepers in charge slept and remained in the house, one room upstairs being used for their bedroom. The plaintiff and her mother had access to all parts of the house at all times, were admitted to and departed therefrom without interference from the keepers and were treated with courtesy and respect. It appears from the record that Mr. Anderson, a keeper for a portion of the time, upon at least one occasion became obnoxious by apparently attempting to “tip-toe” to a point where he could hear conversations between plaintiff and her mother and others who came to the house for consultation with this plaintiff. The property and furniture in the house were not disarranged except that one chair had been moved by the keeper from the dining-room to the kitchen, where the custodian maintained a fire and spent a large portion of Ms time, and the bedroom used by him was not well cared for.
Within the time from the levy until removal of the property Mrs. Cloutier served affidavit of ownership of a part of the property upon the sheriff and demanded its return to her, as did also Mrs. Moriarity, a resident of San Diego, California, and this plaintiff, assuming to act under an assignment to her of her husband’s right to claim the property as exempt, made and served upon the sheriff an affidavit of ownership of the property in controversy, claiming it exempt and demanding its return. All of Mrs. Moriarity’s property was returned to her and likewise all but a small portion of that claimed by Mrs. Cloutier. The plaintiff’s demand was refused. Trial resulted in verdict and judgment for defendants upon both causes of action. Appeal is from the judgment.
Numerous errors are assigned by appellant, but we think -none merit serious consideration, save and except Instruction No. 5 proposed and given by the court. Before passing to a discussion of it, however, we think a condition fairly appears from the record worthy of passing observation. The record is entirely devoid of any facts or circumstances to justify some three or four different keepers remaining in the house at 622 Harrison Avenue, where their presence under the most favorable circumstances would be embarrassing to two ladies, for a period of eighteen days. All were strangers to plaintiff and her mother, their presence in the kitchen and elsewhere about the house at various times of the day and night apparently wholly uncalled for, and why such an unusual length of time was consumed in making inventory and preparing the property for removal and actually removing it is not shown by* the record, is inexplicable and warrants severe condemnation.
At the close of all the evidence the plaintiff proposed ten instructions, all of which were refused save one. The defendants offered four which were all refused, the court instructing the jury in writing in accordance with its views of the law applicable to the facts of the case. Instruction No. 5, given by tbe court, is as follows: “You are further instructed that as a matter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the act of the plaintiff, Mabel Himmelbauer, or her husband Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there.”
There is no conflict in the evidence as to the manner in which the entrance and levy were made. Hageman was in possession of the house at 622 Harrison Avenue on April 1. He was a constable and stated that he had attached the property the day before. He admitted the sheriff who thereupon made the levy. Under that state of facts we think Instruction No. 5 not erroneous. While the general doctrine that a man’s home is his castle, where an officer may not enter against the consent of the owner for the service of civil process, is well established (Ilsely v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425), the rule cannot apply under all circumstances. The design of the law is the preservation of the sanctity of the home, rather than the protection of the property therein (Ilsley v. Nichols, supra), and hence the rule should not be applied under all circumstances as that it might become an instrument to defeat the ends of justice. If the entry of a dwelling-house is made without force, peaceably and even permissibly, an officer may proceed to levy upon goods in the house. (6 C. J. 219; 4 Cyc. 581; Hitchcock v. Holmes, 43 Conn. 528.) The writ commanded the sheriff to attach the property of defendants. The statute requires that the officer shall seize and take possession of the property in making his levy (Eev. Codes, secs. 9260, 9262), and hence, having gained a peaceable entrance, he was but pursuing the plain requirement of the law in making the levy and seizing the property. In substance, the instruction complained of so told the jury and was a correct statement of the law as applied to the facts of this ease.
(Resubmitted September 20, 1923. Decided October 19, 1923.)
Appellant assigns as error the refusal of the court to give his offered Instruction No. 1, being a statement of the issue as defined in the pleadings. While the practice of giving such statement to the jury is commended (Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 Pac. 215; Band v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70), error cannot be predicated upon its failure so to do.
Other assignments of error are without merit and require no further consideration.
We think the jury was fully and fairly instructed upon all matters of law applicable to the case and that the judgment should be affirmed, and it is so ordered.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
30,
47,
3,
-15,
-17,
-26,
-6,
41,
-8,
13,
-7,
0,
13,
8,
-14,
-27,
-17,
-2,
67,
-27,
5,
-60,
-68,
-57,
7,
28,
21,
-19,
-38,
37,
42,
-13,
-15,
13,
6,
-2,
27,
-15,
38,
-26,
19,
-13,
23,
1,
13,
25,
-12,
6,
-7,
11,
46,
-39,
34,
34,
19,
-15,
-54,
15,
-26,
27,
35,
-49,
48,
-1,
37,
9,
39,
-3,
-13,
-75,
45,
-9,
-21,
-35,
-49,
-6,
-20,
0,
-57,
15,
-24,
-50,
27,
-29,
7,
-30,
-53,
-10,
-36,
9,
-9,
44,
23,
19,
28,
6,
-69,
35,
48,
-19,
-38,
-73,
-57,
46,
39,
-13,
-20,
28,
20,
32,
-39,
-3,
48,
-14,
-17,
40,
-78,
28,
2,
9,
4,
11,
3,
-21,
18,
3,
-28,
-19,
-9,
12,
-32,
0,
-25,
6,
-43,
34,
-17,
-55,
-16,
-16,
21,
-15,
20,
3,
-36,
23,
35,
-26,
-3,
-33,
-34,
39,
34,
65,
28,
-24,
5,
-24,
-25,
-10,
-37,
-8,
38,
-10,
16,
-1,
9,
17,
7,
-68,
-6,
38,
0,
-9,
54,
29,
27,
-29,
13,
6,
-2,
14,
29,
-6,
31,
-30,
35,
-6,
9,
21,
9,
-10,
8,
27,
-24,
31,
-43,
-21,
-1,
-39,
16,
10,
9,
35,
6,
7,
53,
-54,
30,
-47,
34,
12,
-13,
-6,
-50,
11,
-32,
6,
-31,
-12,
-37,
-4,
-46,
34,
-8,
-35,
71,
-25,
90,
-27,
-33,
-23,
53,
-14,
6,
-2,
-10,
-22,
-2,
24,
3,
-32,
10,
26,
0,
-13,
-90,
-43,
-36,
2,
-7,
-16,
-24,
82,
-3,
6,
66,
-35,
-18,
-10,
-16,
-11,
12,
38,
8,
-37,
23,
15,
1,
23,
23,
30,
34,
20,
-10,
-32,
33,
15,
33,
-48,
8,
-25,
0,
32,
47,
11,
6,
-17,
-9,
-32,
-39,
-17,
-37,
-32,
8,
-11,
0,
-22,
-18,
24,
-32,
9,
18,
-2,
-20,
-17,
-11,
-7,
-8,
-1,
24,
20,
-37,
30,
28,
65,
-12,
36,
-24,
8,
44,
-3,
-17,
26,
14,
-1,
14,
-3,
0,
9,
13,
-21,
-15,
9,
-26,
-36,
59,
-2,
13,
-30,
10,
-33,
32,
-18,
-6,
36,
-3,
19,
-38,
-2,
22,
-27,
-35,
32,
5,
1,
9,
8,
-12,
45,
44,
48,
-14,
-34,
-25,
-17,
-42,
-25,
2,
10,
-36,
-22,
25,
30,
-46,
25,
-41,
-11,
-11,
57,
8,
-12,
-1,
63,
1,
31,
40,
-59,
-24,
29,
-13,
10,
44,
26,
2,
-32,
-17,
-20,
-34,
-21,
-33,
53,
0,
18,
-53,
-7,
-2,
-8,
-52,
-1,
27,
-24,
-28,
12,
17,
13,
-1,
11,
-9,
35,
15,
-13,
20,
5,
26,
-17,
9,
15,
-33,
20,
16,
52,
-19,
7,
10,
-11,
-39,
38,
-22,
34,
47,
9,
-5,
50,
24,
8,
20,
-6,
59,
18,
-7,
51,
0,
-5,
29,
32,
57,
27,
-14,
-37,
48,
35,
25,
47,
-6,
-16,
-11,
-53,
-7,
53,
7,
15,
-29,
9,
5,
82,
16,
7,
-41,
7,
-40,
-2,
61,
21,
-9,
-40,
-18,
-48,
6,
33,
4,
26,
-20,
-3,
-27,
31,
-39,
-24,
24,
-18,
-60,
-3,
7,
-13,
18,
6,
30,
-13,
-39,
48,
14,
-10,
30,
21,
-21,
-2,
44,
13,
-40,
47,
-5,
4,
5,
17,
-27,
39,
39,
4,
20,
18,
-25,
21,
-25,
-8,
-21,
5,
76,
36,
6,
-5,
3,
0,
51,
-15,
-53,
14,
-44,
2,
-12,
-38,
11,
-21,
12,
39,
-19,
-36,
0,
-25,
-23,
23,
50,
19,
-31,
-36,
-5,
-23,
0,
22,
0,
-56,
-46,
47,
-48,
-34,
-43,
-15,
-38,
8,
-3,
28,
11,
-14,
-15,
-31,
-14,
18,
29,
38,
-25,
42,
20,
13,
-9,
-8,
-7,
0,
-36,
25,
-13,
36,
-16,
-72,
-11,
38,
-2,
-36,
-30,
29,
4,
8,
0,
6,
-10,
-1,
-16,
7,
2,
-69,
38,
-23,
58,
-42,
43,
40,
-27,
-45,
-17,
23,
-26,
-27,
3,
4,
25,
-34,
-9,
63,
1,
-1,
-30,
-32,
20,
48,
7,
16,
-36,
6,
29,
-57,
18,
-38,
27,
36,
16,
-31,
31,
3,
43,
-34,
6,
-26,
-19,
11,
-17,
40,
23,
2,
34,
10,
8,
29,
32,
-39,
25,
19,
-5,
-47,
-31,
-38,
47,
-73,
7,
-4,
23,
4,
-9,
-30,
56,
3,
-32,
-1,
24,
-22,
-30,
25,
22,
42,
-17,
-1,
-30,
-17,
0,
-30,
30,
14,
-12,
25,
-3,
-56,
-32,
11,
-20,
-1,
-17,
-33,
-2,
-45,
5,
-10,
-26,
-1,
10,
-38,
-14,
-26,
-17,
-24,
1,
29,
-6,
13,
46,
22,
-37,
-4,
-40,
-6,
-21,
31,
3,
6,
-12,
-7,
30,
33,
-6,
-56,
4,
-33,
-10,
0,
9,
16,
-9,
-15,
15,
-5,
-50,
13,
-30,
-18,
51,
44,
16,
-56,
-19,
-4,
4,
-34,
-23,
-31,
-10,
2,
-20,
-22,
17,
-7,
32,
-1,
61,
-9,
9,
-20,
14,
-20,
36,
26,
42,
37,
39,
26,
50,
0,
-40,
-51,
-51,
11,
8,
-55,
-43,
-26,
4,
14,
4,
49,
-17,
-2,
20,
11,
-26,
54,
-13,
-17,
33,
-56,
-13,
22,
-17,
35,
-14,
-19,
-47,
-18,
21,
-11,
-6,
-4,
-28,
-9,
8,
9,
5,
-27,
16,
-21,
11,
45,
12,
30,
-13,
-12,
-5,
-32,
31,
-13,
26,
28,
42,
9,
17,
-26,
1,
0,
-25,
39,
-37,
-4,
14,
6,
43,
-7,
-25,
1,
-42,
-19,
23,
-55,
-1,
-15,
-6,
18,
-26,
-18,
-6,
40,
-7,
-33,
32,
12,
63,
10,
-23,
17,
-29,
23,
-43,
5,
-4,
53,
-19,
29,
-53,
-28,
-41,
20,
-35,
-26,
25,
-79,
6,
2,
-18,
-7,
0,
24,
-25,
-2,
8,
15,
8,
-2,
27,
-21,
-9,
-59,
10,
49,
-24,
16,
0,
27,
-5,
3,
-2,
25,
-4,
4,
-24,
23,
-37,
73,
-45,
22,
-25,
9,
29,
24,
10,
-2,
-9,
-17,
12,
-14,
23,
-3,
10,
37,
74,
-36,
-22,
26,
-2,
46,
40,
52,
23,
14,
-18,
-31,
-1,
-74,
-11,
-28,
12,
-42,
7,
-69,
-14,
10,
41,
-5,
-19,
-26,
-41,
-14,
-36,
18,
27,
49,
45,
9,
45,
-6,
-10,
42,
14,
-44,
-40,
8,
-24,
-34,
47,
-42,
-9,
-1,
30,
-14,
-3,
-27,
13,
-43,
-3,
-10,
24,
-5,
42,
-53,
7,
-12,
24,
-4,
-25,
-83,
17,
-14,
-17,
-24,
5,
19,
16,
48,
-53,
6,
0,
34
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
For a period of twenty-nine months prior to October 22,1920, these respondents rendered legal services at the instance and request of William R. McLure and Clara McLure Jones, respectively executor and executrix of the last will of Charles D. McLure, deceased, in the administration of the estate, and in conducting actions in court in behalf of the estate. Some changes in the personnel of the law firm rendering the services occurred during the time, but reference is here made to these respondents as though there had not been such change. Upon the date last mentioned the respondents ceased to represent the executor and executrix, but they had not received any substantial remuneration for their services. On April 23, 1921, an order was made revoking the letters testamentary of Will iam R. MeLure and Clara MeLure Jones, and special letters of administration were issued to D. J. O’Connor, and later letters of administration with, the will annexed were issued to Paul A. Gow. The first account of the executor and executrix was filed February 24, 1921. In the account no allowance was asked for fees paid to the respondents, nor was the court asked to fix fees for their services. A hearing on this account was not had until February 11, 1922. On January 30, 1922, the respondents filed objections to the account upon the ground that the same did not contain any mention of their services nor ask the court to fix the fees for the same. On the same day they filed a petition asking the court to fix and allow their compensation, and in the petition set forth the value of their services and the amount then due to them. They alleged that the executor and executrix were insolvent and unable to respond in damages; that the only means available to them to obtain compensation for their services was through an allowance made by the court from the funds of the estate. They prayed that a citation issue directing the executor and executrix to appear upon a day certain and show cause why the court should not grant the prayer of their petition. The former executor and executrix presented objections to the respondents’ petition, and objections to the account as well as to the petition were also presented by the special administrator and by certain creditors of the estate, among the latter being the St. Louis Union Trust Company. One ground of objection to the petition for allowance of attorneys’ fees was that the district court sitting in probate has no jurisdiction to order the former executor and executrix to include in their account any fees for legal services rendered to them by the attorneys in the matter of the estate; that the employment is purely a matter of contractual relation and personal concern between the executor and executrix and the attorneys, in which the estate is not interested unless and until the executor and executrix see fit to claim the same as a credit against the estate.
On February 11, 1922, a hearing was had upon the account, petition and the several objections, in which the respondents, the former executor and executrix, the special administrator, and the objecting creditors participated. On July 12, 1922, the court made an order fixing the attorneys’fee, and the former executor and executrix were directed to file a supplemental account including the item and an item for money expended by the attorneys, as expenses incidental to the administration of the estate. Pursuant to the order a supplemental account was filed, and under protest the items for attorneys’ fee's and money expended were included. On August 2 the court reaffirmed and readopted the order of July 12. The supplemental account was settled by the court and the allowance of the amount of the attorneys’ fee was again specifically approved on Angust 19. An appeal was taken from the order of August 2 and from the order settling the account by Paul A. Gow as administrator c. t. a. and the St. Louis Union Trust Company, a creditor of the estate, and a separate appeal was taken by Clara McLure Jones and William R. McLure individually and as former executor and executrix. These appeals were consolidated and considered together.
By an opinion promulgated on June 25 last this court reversed the orders solely upon the ground that the trial court was without authority to make them, but later granted a rehearing to the end that further consideration might be given to the amendatory statutes enacted in 1919, and particularly to Chapter 45, Laws of 1919.
Although the lower court appears to have made three orders, they all refer generally to the same matter, and for the sake of brevity will be treated as one order, the effect of which was to fix the amount due to the attorneys, compel the executor and executrix to include the amount so fixed in their supplemental report, and to direct that the amount so fixed be paid to the attorneys out of any funds belonging to the estate and available for the payment of the expenses of administration. The order indi cates that it was based upon the petition presented by the attorneys, and it will be so treated.
It is elementary that only parties interested in the estate could have any right to object to the report or petition the court for affirmative relief (State ex rel. Shields v. District Court, 24 Mont. 1, 60 Pac. 489), so that the question arises: Did these attorneys become interested in the estate, as that phrase is understood in probate law, by reason of the fact that they rendered the services mentioned and were not paid therefor?
Prior to 1919 the question was not an open one, and to appreciate the force and effect of the statutes under review a reference to certain rules of law in effect at the time of their enactment is necessary. A new Probate Practice Act was enacted in 1877, which provided: “He [the executor or administrator] shall be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conducting the necessary proceedings or suits in the probate or other courts,” etc. (See. 251, p. 305, Laws 1877.) The statute was carried forward without change into the Revision of 1879 (see. 251, p. 239, Rev. Stats. 1879), and into the compilation of 1887 (sec. 251, p. 337, Comp. Stats. 1887). In the Codes of 1895 the statute was re-enacted with this modification: The words “or suits in the probate or other courts” were stricken out, and the following were inserted in lieu thereof: “And for conducting actions in courts.” (See. 2774, Code Civ. Proc. 1895.) With that amendment the statute became section 7631, Revised Codes of 1907, and has continued in effect to the present time except in so far as it was modified by the amendments made in 1919.
Under statutes of like effect which prevail in most of the states it is the general rule that an attorney employed by the personal representative of an estate is the attorney for the personal representative, and not the attorney for the estate (1 Ross on Probate Law and Practice, sec. 492); that such an office as “attorney for the estate” is unknown to the law (Ogier’s Estate, 101 Cal. 381, 40 Am. St. Rep. 61, 35 Pac. 900); that the employment and compensation of the attorney is a matter of private contract between the personal representative and the attorney with which the probate court has no concern (Austin v. Munroe, 47 N. Y. 360); that the attorney does not sustain any relationship whatever to the estate, and cannot assert any claim against the estate for his compensation (In re Sullivan, 36 Wash. 217, 78 Pac. 945) ; that the attorney does not have any lien upon the property of the estate (Waite v. Willis, 42 Or. 28;8, 70 Pac. 1034), and is not a person “interested in the estate” (In re Kruger’s Estate, 143 Cal. 141, 76 Pac. 897); that, if the personal representative fails to compensate the attorney for his services, the remedy of the attorney is by an action at law against the personal representative individually (Brown v. Quinton, 80 Kan. 44, 18 Ann. Cas. 290, 25 L. R. A. (n. s.) 71, 102 Pac. 242) ; that the personal representative may reimburse himself out of the funds of the estate for what he has paid to his attorney, if the services were necessary and the amount paid was reasonable (Munger’s Estate, 168 Iowa, 372, Ann. Cas. 1917B, 213, 150 N. W. 447), but the allowance can be made only to the personal representative and not to the attorney (Briggs v. Breen, 123 Cal. 657, 56 Pac. 633, 886); that prepayment of the fee by the personal representative is a condition precedent to having the claim allowed in his report (Thacher v. Dunham, 5 Gray (Mass.), 26; Bates v. Vary, 40 Ala. 421), and that the probate court has no jurisdiction to direct the personal representative to' include in his report an allowance for attorney fee (1 Woerner’s American Law of Administration, see. 152), or to direct payment of such fee (Townsend v. Brooke, 9 Gill (Md.), 90; Hoes v. Halsey, 2 Dem. Sur. (N. Y.) 577). Different phases of this rule have been invoked and enforced by this court in First Nat. Bank v. Collins, 17 Mont. 433, 52 Am. St. Rep. 695, 43 Pac. 499, State ex rel. Kelly v. District Court, 25 Mont. 33, 63 Pac. 717, Latoson v. Cobban, 38 Mont. 138, 99 Pac. 128, State ex rel. Cohen v. District Court, 53 Mont. 210, 162 Pac. 1053, and in State ex rel. Eisenhauer v. District Court, 54 Mont. 172, 168 Pac. 522. In other states the attorney is permitted to apply to the court and have .his compensation allowed to him directly from the funds of the estate, but, with these exceptions covered by special statutes or sanctioned • by practice, the rule above has been in effect in this country for many years and in this jurisdiction since 1877 at least.
In 1919 the two statutes were enacted by our legislative assembly which, it is contended, changed the rule and justify the order in question. The one Act (Chap. 45, Laws 1919) amended section 7153, Bevised Codes of 1907, and the other (Chap. 55, Laws 1919) amended section 7631 of the same Code. The amended statutes are now, respectively, sections 9786 and 10285, Bevised Codes of 1921. The construction of the latter Act involves no difficulty. It permits the personal representative of the estate to have an allowance made to him for compensation for his attorney in advance of actual payment of the fee — something he could not do before section 7631 was amended. The amended section expressly confers upon the court authority to fix the amount to be allowed to the personal representative as compensation for the services of his attorney, whereas under the statute before the amendment was made the authority was implied. There is not anything in the amendment to suggest an intention on the part of the legislature to create a relationship between the attorney and the estate or to constitute the attorney a person interested in the estate. The new statute, like the old one, deals exclusively with the compensation of and allowances to be made to the personal representative, and affords no justification for the order in question.
The construction of Chapter 45, above, presents a more difficult question. The legislature might have expressed its intention in terms so plain that its meaning could not be open to doubt, as did the legislature of California in amending section 1616 of the California Code of Civil Procedure; but we are not at liberty to disregard tbe amendment or to assume that no practical purpose was sought merely because the language is not well chosen or because the Act bears upon its face the marks of its hasty and ill-considered preparation.
The language of section 7153 was not changed. The amendment was made by inserting the words italicized, and as amended the section now reads as follows: “The measure and mode of compensation of attorneys and counsellors at law is left to agreement, express or implied, of the parties, except that in probate proceedings the coiui't may fix and allow' the compensation of attorneys representing administrators, executors, guardicms and trustees, and agents appointed ,by the court. But parties to actions or proceedings are entitled to costs and disbursements as hereinafter provided.”
In contradistinction to Chapter 55, which confers upon the probate court express authority to fix -and determine the amount of credit which the personal representative shall receive for compensation of the attorney employed by him, Chapter 45 in express terms declares that the court may fix and allow the compensation of the attorney.
It is one of the elementary rules of statutory construction that every part of a statute must be made operative if it is possible to do so (State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103), and that no word in a statute is to be considered meaningless if a construction can be found which will give it effect (Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454).
The word “fix” means to decide definitely; to settle; to determine. (Standard Dictionary; 2 Words and Phrases, Second Series, 575; Bouvier’s Law Dictionary.) The word “allow” means to grant a right, privilege, or share (New Standard. Dictionary); to give a fit portion out of a larger property or fund (Black’s Law Dictionary). To allow an account or claim is to accept or admit it as a legal demand. (People ex rel. Dinsmore v. Gilroy, 82 Hun, 500, 31 N. Y. Supp. 776.) To allow impliedly, premises a fund available out of which payment may be made. (In re Farrell, 51 N. J. Eq. 353, 27 Atl. 813.) An allowance is a definite sum or quantity set apart or granted. (Bouvier’s Law Dictionary.)
Bearing in mind the general rule first adverted to above, and the fact that this court had held repeatedly that the attorney has no claim against the estate for his compensation, that the probate court cannot adjudicate any claim as between the attorney and the personal representative, that the attorney must seek his remedy in a court of competent jurisdiction in an action at law, and that in the ease of State ex rel. Kelly v. District Court, above, this court has declared that the district court sitting in probate has no authority “to segregate and set apart any sum from the funds of the estate for the use of counsel,” we think it possible to discover the intention of the legislature in enacting Chapter 45, and to give meaning to the language employed. Evidently the purpose was to enlarge the jurisdiction of the court so that it' could determine the amount due to the attorney — a power which the court did not have before — and order that amount set apart out of the funds of the estate under its control, for the use of the attorney. We think this is what the legislature intended to accomplish, and that the language employed is open to this construction. Any other interpretation would render the Act meaningless, or at best of no practical effect.
From the premises just stated it follows necessarily that by the enactment of Chapter 45 the legislature constituted the attorney “a person interested in the estate,” and his claim for reasonable compensation, a legal demand against the estate to be paid as part of the necessary expenses of administration. (Estate of Hite, 155 Cal. 451, 101 Pac. 448.) Under the statute the employment ceases to be the engagement ■ of the attorney with the personal representative individually, and becomes the engagement of the attorney with the estate through the instrumentality of the personal representative as the agent of the estate. And the statute thus construed is not new or strange: on the contrary, it is in harmony with the general trend of modern legislation. In 2 Woerner’s American Law of Administration, section 356, the author says; “In view of the ultimate liability of the estate for the disbursements made in its behalf by the executor or administrator and of the duty incumbent upon the probate court to pass upon the question of the reasonableness of the charges as well as the liability of the estate, it would seem that original jurisdiction to adjudicate between executors or administrators and their creditors for services in respect of the estate should, on principle, be vested in the probate court to avoid circuity of action and unnecessary costs and delay, and there seems to be legislative and judicial tendency in that direction, particularly in the western states.”
Under express statutory provisions in force in Arkansas, Colorado, Indiana and Missouri the expenses of administration are constituted “claims against the estate” giving to the attorney the right to have his fee allowed to him directly from the funds of the estate (Kenyon v. Gregory, 127 Ark. 525, 192 S. W. 887; United States F. & G. Co. v. Miller, 44 Colo. 557, 98 Pac. 828; Long v. Rodman, 58 Ind. 58; Matson & May v. Pearson, 121 Mo. App. 120, 97 S. W. 983), and by construction the same effect has been given to the statute in District of Columbia, Nebraska, Oregon and Texas (Brandenburg v. Dante, 261 Fed. 1021, 49 App. D. C. 141; Hazlett v. Moore’s Estate, 89 Neb. 372, 131 N. W. 589; Knight v. Hamaker, 40 Or. 424, 67 Pac. 107; Portis v. Cole, 11 Tex. 157).
By a statute in force in Connecticut since 1882 an attorney who has a claim against the personal representative of an estate may maintain an action at law against the personal representative, and, if successful, the judgment shall direct that payment be made to the attorney out of the funds of the estate. (Brown v. Eggleston, 53 Conn. 110, 2 Atl. 321.)
By amendments to section 1616, California Code of Civil Procedure, made in 1905 and 1911, the attorney is authorized to petition the court for an allowance of his fee directly to him.
It is true that Chapter 45 does not provide any method of procedure, but section 8882, Revised Codes of 1921, declares: “"When jurisdiction is, by the Constitution or this Code, or any other statute, conferred on a court or judicial officer, all the means necessary to carry into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
The construction we give to Chapter 45 does not operate to impose any additional burden upon the estate. Reading the two amendatory statutes together, and giving effect to each, it follows that upon application of the attorney for an allowance to him directly he is entitled to receive only such compensation for his services as the court would have allowed to the personal representative for counsel fees as expenses of administration upon his account (Estate of Hite, above), or, in other words, upon direct application by the attorney the court must determine whether the services rendered were necessary, and, if necessary, must fix and allow reasonable compensation. The only material difference between the old statute and the new ones is that the court may now make the allowance to the attorney directly instead of compelling the attorney to collect from the personal representative and then giving credit to the latter upon his account.
Before these amendments were made the estate could not escape ultimate liability for reasonable compensation for necessary services rendered in its behalf by the attorney if there were any funds in the estate available for the payment of the expenses of administration. If the personal representative were financially responsible, the attorney collected from him, and he in turn reimbursed himself from the funds of the estate. To the general rule that the only avenue of relief open to the attorney was an action at law against the personal representative there has always been this exception: If the per sonal representative were insolvent or out of the jurisdiction the attorney might by an appropriate suit in equity enforce his claim against the estate upon the principle of equitable substitution. (2 Story’s Equity Jurisprudence, sec. 1320, note; Pike v. Thomas, 65 Ark. 437, 47 S. W. 110; Clopton v. Gholson, 53 Miss. 466; Gates v. McClenahan, 124 Iowa, 593, 100 N. W. 479; Clapp v. Clapp, 44 Hun (N. Y.), 451; Hewitt v. Phelps, 105 U. S. 393, 26 L. Ed. 1072 [see, also, Rose’s U. S. Notes]; Carpenter v. United States F. & G. Co., 123 Wis. 209, 101 N. W. 404; In re Murray’s Estate, 56 Or. 132, 107 Pac. 19; Guerry v. Caspers, Bail. Eq. (S. C.) 159.) And the same rule prevails in Alabama by statute. (Leahart v. Deedmeyer, 158 Ala. 295, 48 South. 371.)
Since Chapters 45 and 55 were enacted by the same session of the legislature, we are required to reconcile their provisions, if possible, and give effect to both Acts. (State ex rel. Hay v. Hindson, 40 Mont. 353, 106 Pac. 362.) Under the construction we have adopted, the provisions of the two statutes may be harmonized. The attorney may apply to the court and have his compensation fixed and allowed, but. he is not compelled to do so. He may secure his compensation from the personal representative as the agent of the estate; but in either event the personal representative is entitled to credit on his account for the amount fixed by the court.
The contention is advanced that this construction of Chapter 45 renders the Act unconstitutional. Section 23, Article III, of our Constitution secures the right of trial by jury in that class of cases in which the right might have been asserted at the time the Constitution was adopted. Although it has been held uniformly that the jurisdiction of the district court sitting in probate is limited to the exercise of the powers conferred by statute, nevertheless the court does possess all the authority incidentally necessary to the effective exercise of the powers expressly conferred. (In re Davis’ Estate, 27 Mont. 490, 71 Pac. 757.) At the time the Constitution was adopted, the statute then in force conferred upon the probate court authority to pass upon all debts of an estate and all claims and demands against it (secs. 1, 153, 251, 273, 276 and 278, Div. II, Comp. Stats. 1887), and p'artieularly authorized the court to allow reasonable compensation for necessary legal services as a part of the expense of administration (sec. 251, above). While it is true that the allowance was made to the personal representative, and not to the attorney directly, it was so made only because the statute then in force did not constitute an item of expense a claim or charge against the estate. In the absence of any provision of the Constitution prohibiting .the legislature from giving to an item of expense of administration the character of a claim or demand against the estate, the authority exercised in the enactment of Chapter 45 cannot be questioned.
Rehearing denied November 21, 1923.
A demand for a jury trial was not made in this instance; hence appellants cannot complain. Section 10369, Revised Codes of 1921, provides: “If no jury is demanded, the court or judge must try the issues joined.” (See In re Tuohy’s Estate, 33 Mont. 230, 83 Pac. 486.)
We deem the evidence ample to sustain the court’s conclusion that the services rendered by these attorneys were necessary and the amount allowed reasonable.
The opinion heretofore promulgated is withdrawn and the orders are affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-43,
-37,
70,
-52,
-32,
-46,
6,
-49,
27,
-40,
-34,
-62,
4,
76,
-62,
25,
29,
-29,
44,
-30,
40,
-8,
72,
-35,
-8,
22,
-26,
1,
37,
-19,
17,
-22,
-48,
28,
38,
-15,
-65,
-24,
17,
-45,
11,
-1,
-19,
-4,
26,
94,
73,
-6,
-1,
9,
-60,
10,
-1,
3,
-2,
-15,
9,
-24,
-42,
1,
46,
13,
3,
-8,
-11,
39,
-53,
63,
-11,
19,
-30,
-33,
48,
-18,
3,
-22,
-41,
-67,
1,
-12,
-10,
-39,
-34,
-45,
-17,
-9,
-66,
-44,
1,
39,
-30,
38,
22,
18,
-39,
41,
18,
-23,
-44,
36,
11,
-23,
-10,
-9,
-10,
34,
6,
22,
45,
30,
12,
26,
32,
77,
-70,
9,
-11,
-92,
-8,
2,
8,
52,
7,
-48,
-21,
33,
-11,
41,
39,
44,
40,
28,
-20,
9,
-53,
6,
-12,
-56,
10,
37,
2,
-33,
-7,
-7,
3,
33,
-33,
17,
21,
-56,
9,
32,
62,
-1,
73,
-21,
0,
9,
33,
-2,
34,
-52,
-12,
-52,
2,
10,
-15,
-26,
60,
16,
18,
-4,
12,
26,
-29,
-26,
-39,
21,
-21,
16,
-6,
31,
32,
-60,
51,
-58,
65,
40,
19,
4,
-33,
-25,
7,
-20,
-57,
-30,
29,
-11,
21,
41,
19,
-14,
8,
37,
14,
-45,
6,
23,
-2,
25,
35,
-31,
-21,
28,
-1,
29,
14,
-44,
-73,
3,
2,
-9,
-19,
-6,
0,
1,
-40,
-37,
54,
-23,
-61,
16,
-21,
28,
-24,
7,
4,
0,
-29,
-26,
-53,
9,
50,
-34,
8,
3,
7,
11,
11,
1,
7,
25,
30,
2,
27,
69,
-13,
19,
77,
-32,
7,
0,
-17,
20,
48,
-50,
62,
6,
55,
34,
44,
-41,
23,
-43,
1,
-37,
18,
0,
-7,
3,
-59,
6,
10,
-17,
15,
13,
46,
-37,
-15,
65,
-22,
-2,
22,
19,
-1,
33,
-9,
39,
-14,
-45,
-37,
48,
16,
16,
46,
5,
-53,
9,
15,
-4,
31,
38,
0,
-22,
58,
37,
-35,
4,
31,
17,
61,
-31,
13,
58,
-39,
13,
-10,
-11,
-7,
46,
12,
39,
0,
-31,
-49,
2,
49,
46,
5,
-44,
0,
-8,
2,
26,
-15,
3,
-2,
-69,
5,
36,
-12,
30,
-2,
50,
-14,
7,
94,
-2,
-18,
33,
4,
22,
38,
30,
-19,
-8,
-51,
-26,
8,
-41,
-9,
27,
-35,
-10,
39,
36,
-15,
-8,
7,
9,
-38,
-73,
-26,
-14,
45,
54,
-8,
9,
34,
38,
-43,
52,
3,
41,
-22,
55,
5,
1,
4,
13,
-17,
22,
-81,
22,
-29,
15,
-41,
2,
-53,
17,
10,
78,
57,
0,
56,
-4,
-25,
-33,
36,
9,
18,
1,
35,
52,
-35,
-42,
57,
32,
-17,
-18,
16,
32,
38,
-19,
4,
-35,
16,
39,
-33,
67,
51,
37,
39,
90,
1,
44,
-3,
-68,
19,
57,
11,
51,
75,
19,
54,
-57,
68,
52,
4,
21,
-6,
11,
-3,
44,
-38,
-19,
8,
38,
-16,
49,
-55,
30,
-14,
-40,
-29,
5,
5,
-5,
-33,
20,
-17,
-6,
16,
5,
-14,
67,
-18,
-20,
-49,
-36,
-34,
-39,
-36,
-6,
-34,
-43,
-46,
-68,
-51,
-43,
16,
-14,
-11,
19,
-56,
-69,
-47,
-76,
14,
-18,
20,
23,
63,
49,
23,
-10,
20,
11,
55,
-4,
7,
-33,
-44,
20,
22,
47,
0,
56,
73,
-41,
-94,
20,
-46,
-16,
-37,
-75,
0,
15,
-52,
-17,
27,
1,
14,
1,
16,
13,
14,
24,
41,
8,
-12,
-79,
-49,
-20,
-30,
-56,
27,
-16,
-30,
-34,
16,
39,
-73,
0,
9,
-64,
2,
21,
13,
12,
-8,
0,
64,
-17,
31,
34,
-25,
-44,
13,
-79,
72,
0,
0,
-23,
-23,
11,
16,
-10,
-24,
82,
23,
-21,
-43,
25,
29,
-28,
-41,
-31,
0,
23,
-28,
15,
53,
-13,
-66,
31,
-45,
29,
46,
-52,
6,
7,
-56,
-4,
-27,
13,
-29,
-16,
26,
-9,
18,
59,
14,
4,
3,
-48,
-1,
13,
-3,
36,
68,
17,
-24,
22,
-50,
3,
-19,
-19,
-17,
-43,
29,
17,
-4,
47,
-10,
28,
60,
3,
62,
-13,
-14,
22,
6,
1,
-64,
-9,
71,
-76,
65,
10,
46,
-7,
-23,
19,
45,
42,
6,
45,
9,
46,
-10,
14,
-18,
-14,
11,
-3,
-9,
26,
56,
12,
2,
2,
-9,
86,
12,
-38,
19,
-16,
-65,
-23,
-10,
-32,
-39,
-26,
-36,
60,
-28,
11,
-30,
-12,
36,
-13,
5,
20,
-61,
41,
-18,
34,
-46,
-22,
0,
-73,
-80,
-39,
-54,
-7,
10,
-28,
12,
-53,
4,
-13,
7,
2,
-20,
59,
-2,
26,
0,
-28,
22,
26,
21,
-23,
-9,
-115,
-47,
-56,
-49,
-13,
-15,
25,
0,
13,
43,
-30,
-52,
92,
-39,
0,
16,
-9,
-7,
11,
11,
-57,
-6,
27,
-28,
-29,
-28,
10,
12,
26,
-28,
59,
-58,
34,
-64,
-7,
-4,
23,
3,
4,
11,
0,
0,
23,
-7,
27,
-43,
22,
-33,
-43,
29,
-39,
38,
5,
3,
3,
-22,
-48,
23,
-25,
-47,
-13,
-6,
1,
57,
37,
15,
33,
31,
17,
83,
-11,
-29,
0,
53,
57,
-45,
-48,
-17,
15,
-43,
4,
-16,
-14,
-10,
-30,
-26,
10,
60,
48,
12,
-7,
32,
41,
-55,
50,
-3,
-40,
-31,
27,
59,
-30,
-20,
35,
11,
-52,
53,
-33,
-2,
53,
-47,
-25,
-14,
-2,
-25,
-23,
-7,
24,
54,
67,
-69,
-63,
-5,
-89,
-9,
-5,
20,
-28,
26,
-17,
40,
49,
-19,
8,
36,
-5,
5,
17,
-14,
-43,
-69,
-40,
108,
-25,
38,
48,
-68,
12,
-30,
-17,
28,
8,
66,
-65,
-36,
18,
-12,
-14,
-22,
14,
-2,
-33,
51,
-43,
45,
3,
-35,
-76,
-29,
5,
-42,
2,
-37,
42,
-24,
0,
30,
0,
-33,
-26,
-46,
2,
48,
15,
42,
6,
29,
-60,
-52,
-7,
28,
-49,
44,
0,
-10,
30,
27,
26,
49,
10,
30,
-55,
-1,
51,
-52,
-69,
58,
-29,
27,
55,
-6,
17,
22,
-56,
33,
-8,
29,
4,
40,
25,
9,
17,
-35,
-68,
-22,
77,
-55,
-58,
15,
18,
34,
-5,
29,
-41,
58,
27,
1,
9,
0,
-60,
12,
-49,
15,
-5,
14,
-63,
33,
-22,
-2,
64,
-30,
6,
-24,
-50,
-25,
-26,
73,
10,
24,
4,
5,
-14,
7,
-2,
23,
-21,
-40,
-31,
-14,
-14,
-86,
-71,
18,
48,
-16,
8,
-1,
-2,
-59,
-26,
-28,
8,
-1,
47,
-50,
-21,
12,
-68,
-50,
1
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On May 2, 1922, the Madison State- Bank, a banking corporation organized under the laws of this state, became insolvent, and the state superintendent of banks took charge of its affairs. Later an action was commenced by the state, on the relation of the attorney general, against the bank, and such proceedings were had therein that on June 19 a receiver was duly appointed, who qualified and entered upon the discharge of his duties. Prior to the time the bank suspended it had been designated a depositary for state funds in the hands of the state treasurer, and had given a bond, with the Fidelity & Deposit Company of Maryland as securitjq which bond had been duly approved. At the. time of suspension the state treasurer had on deposit in the bank public funds of the state to the amount of $2,450, upon which interest to the amount of $12.75 was due. Upon demand of the state, the security company paid the amount of the deposit, with the accumulated interest, and thereafter presented its claim to the receiver for payment in preference to the unsecured claims of the general creditors of the bank. The receiver refused to recognize the preference right asserted, and application was then made to the court in the receivership proceedings for an order directing the receiver to admit the preference right and pay the claim in full out of the funds in his hands available for such purpose. After a hearing the court denied the application, and the security company appealed from the order.
In Aetna Accident & Liability Co. v. Miller, 54 Mont. 377, L. R. A. 1918C, 954, 170 Pac. 760, a state of facts identical in all essentials with the facts of this case was presented, and it was there held: (1) That by virtue of the common law, and in the absence of constitutional or statutory provisions upon the subject, this state in its sovereign capacity is entitled to preference over unsecured general creditors of an insolvent bank in which its funds are deposited, so long as the debtor bank retains title to the property out of which payment is to be made;. (2) that a receiver appointed to take charge of the affairs of an insolvent bank does not acquire title to the property of the bank; (3) that while a state may waive its preference right of payment, this state has not done so; and (4) that, if the deposit of state funds is secured, the security, upon making payment, is subrogated to the same preference right which the state might have asserted. To break the force of that decision it is now contended that it conflicts with the decision in Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, 128 Pac. 596, and that it is opposed to the current of modern authority in this country. In the opinion in the Miller Case reference was not made to the decision in the earlier case, and the reason for the omission was apparent to the members of this court, though it may not be to others. The Yellowstone Co^lnty Case was submitted and determined upon an agreed statement of facts from which it appeared that the county treasurer, in violation of the law had on deposit in the First Trust & Savings Bank, at the time the bank failed, county funds to the amount of $33,000, and that the deposit was secured to the extent of $12,500 only. The one question submitted for decision was: “Is the deposit of $33,000, or any part thereof, a trust fund, with the payment of which the assets of- the defendant bank in the hands of said receiver are chargeable as a preferred claim?” We answered the inquiry by holding that the unsecured portion of the deposit was a trust fund, to be paid to the county in preference to unsecured claims of the general creditors of the bank. Unfortu nately we did not stop when we had reached our conclusion, but went further and expressed views upon a subject not before us, vis., the character of the secured portion of the county’s deposit and the right of the county with respect thereto. The views thus expressed are clearly dicta, and to that extent the decision is not authority.
As indicated above, in the Yellowstone County Case the question of the county’s right to preference in the payment of the entire amount of its deposit, based upon the common-law rule, was not even suggested, and was not considered or determined. In the Miller Case the right of the state in virtue of its sovereignty to assert a preference in the payment of its claims was the primary question submitted and decided. From the standpoint of authority there is not any conflict between the two decisions.
The opinion in the Miller Case makes an exhaustive review of the authorities, and discloses that, of the many jurisdictions in which the question of the state’s preference right had been before the courts, in only three states — New Jersey, South Carolina and Mississippi — was the existence of the rule announced by this court denied. Since that decision was rendered, the question has been before the court of last resort of each of the following states: Arizona, Minnesota, Oregon, Utah, Washington and West Virginia. (In re Central Bank of Wilcox, 23 Ariz. 574, 205 Pac. 915; Americcm Surety Co. v. Pearson, 146 Minn. 342, 178 N. W. 817; United States Fidelity & Guaranty Co. v. Branwell (Or.), 217 Pac. 332; National Surety Co. v. Pixton, 60 Utah, 289, 24 A. L. R. 1487, 208 Pac. 878; Aetna C. & S. Co. v. Moore, 107 Wash. 99, 181 Pac. 40; Woodyard v. Sayre, 90 W. Va. 295, 24 A. L. R. 1497, 110 S. E. 689.)
In Oregon and West Virginia the right of the state to preference founded upon the common-law rule is asserted, and substantially the same rule was applied in Minnesota under a statute.
The Arizona court assumed, without deciding the question, that the common-law rule would prevail, in the absence of statute waiving the preference right, but held that the state’s depository law operated as a waiver.
In Washington, the existence of the common-law rule was not denied, but the court held that, if the rule was in effect, its provisions could not be invoked in the particular case because the state bank examiner had taken possession of the insolvent depositary before the preference right was asserted, and the statute authorizing such possession operated to pass to the examiner the title to the depositary’s property out of which payment would have to be made.
The Utah court likewise does not deny that the common-law rule would be in full force and effect, if the state had not waived its preference right. It holds, however, that the facts of the instant case do not admit of its application, and holds further, apparently, that by virtue of certain statutes the state had waived its preference right.
It will thus be observed that only three states — New Jersey, South Carolina and Mississippi — now deny the existence of the rule announced by this court, and that our decision in the Miller Case is supported by the overwhelming weight of authority.
It is urged upon us, however, that certain statutes which were not called to the attention ef the court in the Miller Case should be held to operate as a waiver of the state’s claim to a preference right, and that this court should adopt the views expressed by the Arizona and Utah courts in the cases cited above. The statutes invoked are sections 182, 6071 and 6083 of the Revised Codes of. 1921. Section 182 is our state depository law, and a reference to some of the history in connection with it is not out of place. By section 443, Political Code of 1895, the state treasurer was charged with the duty to keep the public funds in his possession until disbursed according to law. He was permitted, but was not directed, to deposit the funds with banks in this state. If he made deposits in such banks he was required to exact ample security, but the depositaries were not required by law to pay interest upon the deposits. In City of Livingston v. Woods, 20 Mont. 91, 49 Pac. 437, this court in 1897 held that a city treasurer who was required to keep the funds of the city on deposit was •not liable for loss occasioned by the insolvency of a depositary, if he used reasonable prudence and caution in selecting the depositary and was without fault in maintaining the deposit.
By an Act approved March 7,1907 (sec. 183, Rev. Codes 1907), section 443 above was amended. The amended Act required the state treasurer to designate as depositaries of state funds in his possession as many banks in this state as in his judgment were necessary; to take adequate security from each depositary before depositing funds with it, and to collect interest for the state upon such deposits at the rate of two and one-half per cent per annum, computed upon the daily balances. In 1908, section 14, Article XII, of our state Constitution was amended, and by the amended section the governor, state auditor and state treasurer are constituted a state depository board, with certain enumerated powers. The Act approved March 9, 1909, now section 182, Revised Codes of 1921, was enacted to carry out the purpose of the constitutional amendment. It provides that the depository board shall designate the banks which are to be depositaries and fix the rate of interest to be paid to the state, provided the rate fixed shall not be less than two and one-half per cent. It provides, further,, that each depositary shall furnish security for the deposit, to be ap proved by the board, and it relieves the state treasurer from liability for loss, exeept for his own negligence, fraud or dishonorable conduct. This Act superseded the Act of March 7, 1907.
This history discloses that since 1895 it has been the public policy of this state to require security, in addition to that furnished by the state treasurer’s official bond, for all state funds under the control of the state treasurer when deposited in banking institutions in this state, and, since March 7, 1907, to require every depositary to pay interest to the state upon the funds so deposited with it. The only material changes affected by the constitutional amendment of 1908 and the Act of 1909 were: (1) To give the state depository board the authority to designate the depositaries and to approve the security furnished by each; and (2) to set at rest the question of the state treasurer’s liability for loss, if, indeed, that question had not been determined finally in the Woods Case above.
Section 6071, Revised Codes of 1921, requires that every ■bank organized under the laws of this state shall report to the superintendent of banks at least five times each year, and the contents of the report are indicated somewhat in detail. Section 6073 provides that the superintendent of banks may require additional reports whenever in his judgment such special reports are necessary to inform him fully of the actual condition of such banks. Section 6099 applies substantially the same rules to private banks doing business in this state. Section 6083 confers upon the superintendent of banks visitorial powers, with authority to examine the books and affairs of state and private banks.
With this legislative history before us, the question is presented: Has the state waived its preference right? The supreme court of Utah recognizes the general rule that: “The rights of the sovereign state are not deemed lost or waived unless the waiver is in express terms.” Certainly it cannot be said that in any of the statutes enumerated above there is any express waiver of the state’s preference right. But we may go further: Those statutes, singly or collectively, are not inconsistent with the common-law rule; hence it cannot be said that they supplant it by implication, if such a doctrine could be invoked in any event to defeat the state’s right. They do provide additional security for state funds deposited in the designated banks, and they furnish the means by which the state may be advised at all times of the condition of such depositary banks as are subject to the state’s visitorial powers; but national banks in this state may be designated state depositaries, and they are not subject to state examination, supervision or control. Since this state, in virtue of its sovereignty, had the preference right conferred by the common law and could lose it only by the declaration of the law-making power, and since we fail to find any statutes from which a legislative purpose to waive the right can be deduced,’ we adhere to our former decision, and hold that the right still exists in all its force and vigor.
There is a further persuasive reason for this conclusion. Af ter the Miller Case was decided, and before the Madison State Bank suspended, there were two regular sessions and one extra session of our legislative assembly; and it is fair to assume that, if this court misinterpreted the public policy of the state in the Miller Case, some effort would have been made to correct the error and to express in no uncertain terms the intention to waive the state’s preference right; but no such effort ivas made, and we may indulge the presumption that the rule announced in that case expresses the policy of this state with respect to its right to elaim a preference. And, after all, the common-law rule has its foundation in motives of public policy, in order that the state’s funds may not he lost but may be available to meet the expenses of government and discharge the state’s obligations.
The decision in the Washington ease above is pressed upon our attention but, as observed already, that decision turned upon the question of the effect of the Washington statute. It was held that it operated to vest in the state bank examiner the title to the depositary’s property. We do not have any such statute in this state. Neither the superintendent of banks nor the receiver appointed to take charge of an insolvent bank succeeds to the title of the bank’s property. In addition to the authorities cited in the Miller Case, we call attention to State ex rel. First Trust & Savings Bank v. District Court, 50 Mont. 259, 146 Pac. 539, Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832 [see, also, Rose’s U. S. Notes], and 14a C. J. 1991.
The Miller Case is decisive of this case. The order of the district court is reversed and the cause is remanded, with direction to that court to enter an order in conformity with the views herein expressed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-19,
9,
85,
21,
-8,
-4,
6,
-42,
7,
-62,
13,
-2,
25,
28,
-13,
-10,
5,
-2,
-8,
7,
9,
-35,
31,
-70,
-2,
6,
-14,
21,
8,
5,
54,
-58,
-8,
83,
-37,
29,
-50,
-13,
48,
-38,
31,
18,
-27,
9,
24,
10,
50,
-35,
-9,
-17,
-11,
-32,
15,
5,
-40,
-41,
-1,
-42,
-25,
49,
4,
-13,
77,
5,
-10,
-3,
-7,
10,
-9,
0,
-13,
30,
-24,
-37,
29,
-14,
-21,
-6,
-40,
-75,
6,
-56,
-11,
-19,
-30,
3,
-80,
6,
-28,
-2,
11,
39,
-18,
-62,
-18,
10,
24,
-17,
25,
34,
-27,
-100,
-28,
37,
53,
68,
10,
-7,
17,
-7,
23,
-33,
-29,
4,
-79,
41,
-78,
28,
-49,
24,
30,
45,
-21,
-15,
-15,
16,
-52,
-18,
-33,
30,
-21,
9,
-26,
78,
-47,
19,
-10,
-48,
-50,
30,
-28,
-46,
21,
-20,
-28,
-6,
51,
5,
45,
-13,
11,
21,
28,
12,
-31,
-24,
-23,
-16,
-9,
8,
5,
-65,
17,
-3,
16,
15,
3,
-4,
29,
16,
-15,
6,
0,
36,
-18,
5,
-32,
-65,
40,
13,
-37,
11,
17,
-9,
14,
-28,
19,
12,
76,
-7,
7,
22,
-24,
37,
-48,
8,
11,
0,
41,
20,
-17,
-45,
18,
-6,
-25,
-16,
13,
-25,
39,
4,
-3,
11,
-2,
7,
-45,
0,
28,
3,
-2,
2,
47,
31,
-16,
52,
-19,
-34,
60,
-37,
11,
-2,
-9,
13,
26,
61,
21,
37,
32,
-28,
31,
-18,
-12,
-24,
-31,
-21,
-19,
-18,
-12,
-12,
3,
-39,
10,
-18,
1,
42,
36,
67,
4,
-39,
-24,
-31,
1,
10,
-45,
1,
-2,
-32,
17,
9,
11,
17,
13,
-41,
47,
10,
14,
-10,
57,
14,
-9,
-58,
-24,
-11,
15,
56,
13,
-4,
-17,
-9,
-28,
36,
27,
-49,
65,
49,
-35,
-6,
-23,
7,
-32,
37,
-34,
12,
2,
22,
11,
30,
-43,
-9,
-31,
-65,
29,
41,
-15,
-15,
118,
10,
2,
26,
36,
27,
81,
3,
0,
-7,
49,
-34,
32,
-38,
-45,
-21,
6,
21,
36,
32,
-44,
3,
38,
-36,
64,
15,
-1,
-36,
46,
-21,
18,
-9,
-55,
-35,
-40,
-5,
-38,
30,
-56,
12,
0,
6,
65,
25,
-23,
20,
10,
38,
51,
8,
41,
-29,
-43,
0,
31,
-8,
30,
26,
-64,
-63,
-22,
49,
-54,
-10,
-60,
9,
10,
7,
19,
-17,
51,
64,
35,
-43,
-69,
-17,
-1,
2,
-18,
64,
-26,
-13,
1,
-26,
-39,
8,
16,
75,
-107,
-38,
-31,
-35,
27,
3,
-10,
13,
-13,
-53,
-14,
-13,
-41,
57,
-7,
1,
65,
-52,
7,
1,
-1,
33,
11,
-2,
19,
92,
-57,
-7,
-34,
-4,
-30,
23,
-45,
2,
-8,
-13,
-5,
52,
73,
60,
-34,
32,
-21,
46,
-25,
-33,
48,
43,
40,
-30,
14,
-15,
19,
31,
21,
-44,
-8,
-61,
12,
-45,
50,
66,
-5,
-1,
-1,
-6,
17,
-25,
2,
-3,
-28,
12,
4,
45,
-47,
-47,
-37,
8,
-4,
45,
-8,
7,
-30,
-9,
-55,
-49,
-58,
-20,
1,
-4,
-32,
13,
-32,
-13,
-33,
-60,
-36,
-24,
9,
3,
-6,
23,
-78,
0,
5,
-91,
-63,
22,
1,
13,
45,
78,
25,
-4,
-22,
28,
18,
70,
-19,
26,
-27,
2,
-6,
27,
-58,
22,
18,
-70,
-28,
14,
18,
-1,
4,
23,
-35,
44,
-26,
-46,
16,
-5,
34,
6,
-11,
8,
2,
6,
-8,
9,
-33,
-26,
39,
5,
32,
-23,
-30,
29,
-4,
18,
-16,
18,
-43,
-1,
-11,
-19,
15,
-21,
-24,
-58,
-3,
-20,
-34,
23,
10,
-15,
-18,
-30,
-11,
-41,
56,
-36,
-10,
-34,
0,
20,
7,
-35,
-21,
13,
80,
-6,
44,
20,
32,
-1,
10,
9,
-49,
40,
3,
-11,
-12,
65,
-10,
-43,
11,
23,
2,
31,
-18,
-14,
38,
-10,
-79,
-19,
-15,
13,
4,
-57,
-4,
48,
1,
39,
21,
-8,
-26,
-2,
-18,
16,
50,
16,
-3,
-10,
-59,
16,
-29,
-10,
17,
-31,
-47,
37,
35,
2,
13,
7,
36,
25,
77,
-19,
-43,
39,
34,
3,
-3,
-3,
11,
-37,
65,
0,
9,
-20,
-25,
53,
0,
23,
-4,
-35,
-1,
-21,
22,
-28,
63,
-26,
60,
0,
15,
48,
-10,
-14,
-38,
-2,
-63,
61,
-1,
-20,
59,
13,
-11,
20,
41,
-18,
-40,
22,
35,
19,
-8,
1,
-49,
-20,
43,
-14,
0,
-26,
-49,
38,
-63,
-19,
-23,
73,
8,
-20,
-36,
-34,
-10,
18,
37,
-61,
-52,
-33,
-47,
-38,
29,
0,
-46,
20,
12,
-43,
-48,
15,
-29,
-1,
-46,
30,
-24,
-12,
-73,
7,
-17,
-30,
60,
76,
25,
37,
-75,
31,
-37,
5,
24,
-14,
40,
-15,
-12,
-70,
-82,
-23,
-42,
26,
0,
-19,
-11,
38,
56,
16,
-15,
-2,
16,
9,
-55,
-56,
16,
-21,
-38,
0,
-13,
21,
-12,
-35,
-10,
19,
1,
24,
24,
-7,
61,
-56,
22,
67,
29,
48,
-34,
26,
24,
1,
-52,
73,
36,
87,
25,
28,
-61,
21,
-40,
0,
62,
35,
32,
13,
23,
-21,
3,
-45,
42,
24,
32,
46,
-11,
21,
-13,
-75,
-48,
57,
10,
-22,
9,
40,
-8,
-7,
-12,
31,
-31,
-12,
-7,
-71,
40,
4,
74,
0,
61,
-7,
10,
-46,
-34,
35,
21,
-10,
-10,
64,
-15,
46,
-33,
23,
-57,
49,
-2,
-14,
-6,
11,
38,
15,
32,
48,
-37,
17,
61,
-16,
-40,
50,
2,
45,
-47,
71,
9,
-1,
-73,
0,
62,
-29,
50,
15,
-41,
-37,
13,
30,
-3,
5,
29,
-39,
1,
26,
-12,
-5,
-57,
2,
2,
-26,
-9,
-4,
40,
-66,
44,
-24,
6,
11,
35,
18,
60,
-7,
-8,
16,
16,
31,
21,
-72,
-37,
22,
21,
-24,
9,
30,
-28,
38,
-22,
15,
-30,
-7,
28,
31,
-6,
23,
-27,
4,
-5,
40,
8,
-10,
6,
0,
-5,
-15,
-31,
-81,
20,
-1,
6,
-32,
47,
-11,
-2,
-27,
40,
-6,
25,
12,
58,
-6,
-85,
-8,
17,
-34,
-65,
-5,
10,
-17,
17,
9,
43,
-85,
11,
25,
-26,
21,
0,
-52,
-34,
37,
35,
-23,
10,
-22,
1,
-11,
4,
22,
33,
-34,
-1,
39,
-19,
-36,
28,
1,
1,
38,
10,
11,
22,
-6,
35,
-23,
33,
-34,
-10,
-33,
-10,
-60,
-42,
10,
-23,
-2,
15,
18,
-10,
-13,
1,
36,
-19,
38,
-28,
11,
7,
29,
-20,
2
] |
MR. CHIEF COMMISSIONER FELT
prepared the opinion for the court.
This action was brought to recover the purchase price of a carload of potatoes, containing 40,800 pounds, alleged to have been sold and delivered to the defendant at the agreed price of $1.30 per cwt., or $530.40. The answer, among other things, denies that the defendant purchased the potatoes and pleads a counterclaim in the sum of $116.34. The reply admits the counterclaim. The cause was tried to a jury on the 22d of March, 1922. Verdict 'was for the plaintiffs for the full amount of their claim, with interest, less the amount of the counterclaim. Judgment was duly entered upon the verdict for the sum of $458, in addition to the costs. The defendant’s motion for a new trial was overruled. However, on June 23, 1922, the plaintiffs filed written consent that the judgment be modified by reducing the same to the sum of $401.62 in addition to the costs. Judgment thus modified was entered as of date March 23, 1922. The appeal is from the original judgment, the order permitting the modification and from the modified judgment.
The first question raised by the appeal for our considera tion is whether or not the evidence was sufficient to prove a sale.
The defendant was not handling potatoes as a regular business. It was in the implement business, and became interested in this transaction only in an attempt to obtain sufficient funds to pay the plaintiffs’ account. At first the plan was to sell a carload of “Hammond” potatoes to the George Bheem Company of Helena. The latter agreed to purchase a carload of this variety at $1.40 per cwt. and had a car spotted at Townsend, the railroad point of the plaintiffs to receive the same. Upon loading the car, it was discovered that they did not have a full car of that variety, and fifty-six sacks of common white potatoes were used to complete the filling. Upon discovering this fact the George Bheem Company declined to accept the car. There was then an attempt to find a new market for the potatoes. The defendant communicated with dealers in several of the neighborhood cities. Finally the car was shipped by the defendant to Lewis & Sweet of Butte. It does not appear, however, that there was an actual sale of the potatoes at Butte until the following spring. According to the account of Sweet & Lewis the shipment sold for $311.95. From the amount was deducted the freight amounting to $113.34, switching charges in the sum of $8.82, and storage from December 1 to April 15, amounting to $77.04. The net proceeds of $50.96 was remitted to the defendant. The plaintiffs knew nothing of the arrangement with Sweet & Lewis.
The defendant contends that in the entire transaction they were merely assisting the plaintiffs in disposing of their potatoes to others. The president of the defendant company, who conducted the negotiations in its behalf, testified that he told the plaintiffs that they ought to realize $1.30 or $1.35 per cwt. for the potatoes, but denied that he ever agreed to pay any price for them. Mosher, who acted for himself and the other plaintiffs in the transaction, testified that the defendant agreed to buy the potatoes and pay $1.30 per cwt. for them. The conflict thus presented by the evidence was determined favorably to the plaintiffs.
It is contended that the contract attempted to be estab lished is void under the statute of frauds. The evi- - deuce shows that the goods were received and accepted by the consignee of the defendant. The entire quantity was sold by the defendant, or under its direction. They were thus “under the absolute and exclusive dominion of the buyer. This is a sufficient receipt and acceptance to comply with the statute, even though the goods did not come into the manual possession of the defendant. (Stillinger v. Kelly, 66 Mont. 441, 214 Pac. 66; Beedy v. Brayman Wooden Ware Co., 108 Me. 200, Ann. Cas. 1913B, 275, 36 L. R. A. (n. s.) 76, 79 Atl. 721. See, also, note, 49 Am. Dec. 337.)
It is next contended that the trial court had no authority to modify the judgment by the reduction heretofore mentioned. This contention has no merit. The reduction was merely to correct a miscalculation made by the jury through failure to understand the charges and credits which were only partially explained to them. As a part of one instruction they were told: “In this connection the court instructs you that in their reply the plaintiffs admit the correctness of the items set up in defendant’s counterclaim amounting to the sum of $116.34 but allege that they are entitled to an offset against such item from the alleged purchase price of the carload of potatoes mentioned and referred to in the complaint.” This and all other instructions were given without objection. However, it must have been confusing to the jury. A verdict was rendered in favor of the plaintiffs for the full purchase price of the car of potatoes, and allowing the defendant’s counterclaim in the sum of $116.34. Since a credit had been allowed on the counterclaim in the sum of $50.96, the amount realized from the sale of the same car of potatoes, the plaintiffs were, in effect, recovering this amount twice. "We cannot conceive of a more proper case for a court to exercise its power to reduce a verdict which is erroneous by reason of a miscalculation. The plaintiffs consented to the reduction, and the defendant was not prejudiced thereby. This court would have done no more for the defendant had the judgment on the original verdict been allowed to stand.
Rehearing denied July 11, 1923.
In Blessing v. Angell, 66 Mont. 482, 214 Pac. 71, cited by appellant, the jury returned a verdict for the defendant in a sum greater than the entire amount of his counterclaim. Since this could not have been the result of a miscalculation, this court ordered a new trial, although the defendant agreed to remit the entire judgment. The case at bar is not of the class to which belong Blessing v. Angell and the cases therein cited.
Among the several grounds upon which the appellant based its motion for a new trial was newly discovered evidence. Certain affidavits are filed to support the motion in this regard. With the exception of some self-serving declarations, clearly inadmissible, all of the facts relate to the transaction with the George Rheem Company which was never consummated. There was no showing sufficient to warrant the court in granting a new trial.
Whatever merit there might have been in the contention that the verdict is contrary to the evidence was removed by the modification of the judgment which we have already discussed. There is no merit to the contention that the verdict is contrary to the instructions of the court.
We recommend that the judgment of the lower court, as modified, be affirmed.
Per Curiam :
For the reasons given in the forégoing opinion, the judgment of the lower court, as modified, is affirmed.
Affirmed.
|
[
12,
4,
-5,
-23,
-10,
-34,
80,
30,
1,
11,
3,
-26,
-4,
20,
-39,
15,
2,
-32,
42,
-12,
45,
-16,
-23,
-10,
-20,
-7,
-23,
-86,
-42,
-13,
6,
17,
-20,
-7,
-9,
20,
-39,
2,
19,
-57,
21,
-5,
24,
31,
31,
17,
-12,
-69,
53,
-6,
33,
-51,
35,
31,
-7,
-7,
-10,
36,
-61,
16,
23,
-18,
56,
-12,
34,
-7,
15,
-24,
-31,
5,
-29,
-23,
22,
-53,
3,
-51,
-29,
-8,
-49,
-39,
-23,
8,
29,
-36,
-38,
34,
15,
-14,
-21,
-9,
-41,
-17,
7,
17,
68,
23,
-12,
25,
0,
3,
28,
-34,
-3,
31,
36,
50,
-47,
11,
-20,
69,
-10,
27,
11,
-8,
-18,
31,
-33,
-24,
-9,
-28,
9,
-32,
-40,
-40,
0,
9,
-35,
10,
17,
26,
-8,
-6,
7,
79,
23,
-30,
-37,
-48,
-54,
20,
-6,
-3,
-61,
-5,
6,
25,
29,
0,
16,
4,
-15,
-42,
21,
0,
16,
-42,
42,
-20,
47,
-61,
19,
-26,
21,
25,
8,
62,
-18,
-40,
-14,
-40,
-33,
-38,
-8,
3,
42,
72,
14,
-69,
-31,
-10,
-22,
9,
5,
-33,
3,
5,
43,
22,
15,
0,
52,
-28,
9,
32,
-49,
-41,
51,
-18,
34,
-36,
1,
-1,
-1,
17,
27,
16,
39,
27,
21,
-23,
4,
-48,
19,
-25,
-51,
34,
-11,
3,
13,
-40,
17,
-10,
-31,
25,
23,
-25,
23,
-25,
56,
21,
-71,
44,
8,
1,
12,
-46,
-2,
-27,
-32,
34,
8,
-22,
-48,
-53,
19,
45,
10,
-19,
0,
48,
-14,
13,
-24,
51,
-39,
-11,
15,
13,
-27,
-18,
17,
38,
6,
18,
19,
-27,
-29,
6,
27,
23,
2,
-59,
26,
-6,
-18,
-35,
-26,
-12,
-11,
-4,
7,
-78,
24,
21,
28,
8,
17,
7,
-4,
0,
32,
-8,
41,
-45,
-2,
40,
-11,
27,
17,
11,
-59,
16,
-26,
-17,
22,
7,
-27,
-17,
-12,
1,
-34,
-35,
-2,
-18,
8,
0,
-2,
12,
14,
-33,
-6,
13,
1,
43,
33,
-11,
32,
-30,
-24,
-29,
24,
-28,
3,
7,
-26,
-42,
-14,
46,
47,
-3,
32,
36,
9,
17,
15,
40,
16,
-15,
7,
-30,
-5,
-40,
28,
38,
16,
-7,
30,
42,
12,
15,
41,
-34,
16,
-7,
-53,
61,
-35,
-58,
-21,
63,
-11,
25,
-10,
23,
-4,
-10,
11,
-2,
7,
18,
30,
-27,
-55,
-8,
21,
46,
48,
-63,
-48,
55,
-44,
11,
9,
8,
23,
-7,
-1,
-28,
-33,
-1,
-28,
16,
-2,
-12,
13,
-11,
22,
12,
-44,
-44,
-12,
-62,
-38,
-25,
20,
-2,
37,
24,
7,
-19,
30,
49,
14,
0,
45,
-42,
20,
-44,
-38,
18,
5,
-22,
-8,
-7,
-9,
-9,
-7,
0,
-15,
-5,
54,
65,
11,
57,
-11,
39,
-19,
31,
26,
58,
-13,
-25,
35,
-24,
42,
75,
30,
-12,
-22,
-36,
39,
-18,
10,
-19,
-18,
-56,
72,
-63,
48,
0,
4,
49,
61,
-14,
35,
47,
22,
-23,
10,
-11,
-34,
25,
48,
-30,
-28,
-68,
-56,
49,
8,
48,
21,
-31,
-9,
-22,
-34,
11,
32,
-21,
37,
-38,
-80,
-45,
14,
-35,
-31,
24,
35,
-36,
0,
14,
30,
-23,
-5,
-25,
17,
17,
21,
77,
-17,
32,
10,
-14,
-39,
-6,
-37,
18,
38,
-34,
21,
-89,
-44,
-36,
-56,
-90,
-13,
-62,
45,
1,
33,
-35,
-18,
4,
1,
-11,
-37,
-44,
-12,
-14,
39,
-18,
28,
3,
13,
42,
11,
47,
-29,
-10,
-45,
20,
-56,
55,
-67,
8,
43,
9,
32,
9,
37,
9,
-21,
-7,
32,
-1,
-13,
-60,
-15,
-33,
6,
-5,
-19,
5,
-34,
-29,
-55,
46,
22,
44,
-10,
18,
22,
2,
21,
-24,
34,
43,
-15,
15,
-4,
33,
-2,
-22,
-23,
9,
-22,
-8,
-82,
-13,
-7,
21,
-4,
40,
10,
-26,
57,
-1,
3,
-5,
14,
-16,
-9,
-18,
-13,
-51,
-6,
-13,
-87,
-6,
-53,
24,
11,
-54,
33,
56,
-57,
59,
46,
43,
-49,
-30,
0,
-28,
20,
-30,
11,
-7,
0,
26,
22,
16,
0,
24,
-35,
-25,
-42,
51,
11,
-20,
-22,
-61,
29,
13,
-25,
-7,
-29,
-16,
35,
8,
0,
4,
19,
-48,
15,
-41,
39,
-6,
-43,
30,
19,
-19,
38,
-4,
-2,
16,
-41,
-25,
20,
-15,
14,
-15,
-32,
-5,
-26,
32,
7,
13,
29,
-16,
3,
-90,
14,
-50,
-34,
-8,
-24,
7,
-5,
20,
14,
8,
39,
-26,
5,
21,
27,
-51,
46,
38,
-42,
-51,
39,
-35,
32,
27,
-23,
-2,
13,
15,
-35,
17,
25,
22,
24,
-14,
9,
76,
9,
-29,
-7,
-34,
-30,
14,
17,
14,
-25,
4,
15,
2,
-33,
10,
22,
-26,
20,
35,
-19,
-34,
-56,
56,
-30,
-67,
44,
70,
-64,
1,
-28,
18,
45,
-47,
-32,
-10,
-33,
-29,
-63,
-5,
-9,
11,
60,
25,
70,
-25,
-46,
1,
14,
16,
18,
4,
10,
-1,
96,
32,
13,
31,
15,
-34,
-30,
26,
-19,
-25,
12,
-11,
-7,
-42,
4,
1,
4,
-12,
61,
22,
13,
-1,
-40,
21,
5,
-32,
-3,
-15,
-28,
-22,
-14,
4,
25,
-3,
17,
-4,
-5,
11,
-10,
13,
-12,
11,
37,
-15,
-14,
19,
-32,
60,
61,
3,
-41,
2,
16,
44,
-19,
30,
38,
2,
-28,
12,
-24,
-21,
-7,
-63,
-21,
34,
-11,
66,
-9,
-19,
47,
31,
15,
-34,
-42,
4,
9,
-37,
-2,
-29,
-89,
52,
26,
49,
11,
22,
45,
3,
7,
-29,
33,
-42,
17,
-28,
-23,
34,
-15,
11,
5,
1,
-12,
31,
-41,
0,
-48,
-10,
74,
-89,
7,
-56,
58,
6,
-23,
-21,
0,
27,
-19,
32,
-5,
25,
-27,
63,
75,
-35,
40,
-24,
-69,
28,
40,
-11,
10,
10,
43,
2,
-96,
13,
6,
-27,
-21,
-13,
-23,
31,
-62,
-9,
-1,
-19,
-23,
34,
-35,
-37,
-2,
36,
28,
7,
75,
48,
-10,
-16,
-4,
15,
13,
15,
33,
20,
-19,
60,
11,
-17,
-54,
-22,
47,
32,
-7,
26,
17,
-68,
48,
-39,
-19,
22,
4,
-9,
15,
7,
48,
35,
61,
-6,
64,
6,
0,
-4,
44,
1,
-42,
40,
51,
-23,
-25,
-6,
-17,
15,
29,
21,
2,
7,
-8,
-18,
0,
42,
-6,
-53,
-33,
-17,
-6,
-12,
-15,
-31,
5,
-4,
1,
9,
-18,
-14,
0,
5,
13,
-3,
30,
21,
12,
-14,
-39,
17,
24,
17
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This suit was instituted to enforce specific performance of a contract alleged to have been entered into between the plaintiff and defendant M. J. Severson, on March 8, 1920, by the terms of which Severson agreed to sell to plaintiff lot 17, block 27, in the original town site of Roundup, together with the two-story building thereon, and also some personal property used in the rooming-house which occupied the second floor of the building. The trial of the cause resulted in a judgment for defendants, and plaintiff appealed.
The only serious contention made is that the evidence does not support the trial court’s finding and conclusion that the parties did not enter into any contract for the sale of the property. It is conceded that if a contract existed it is to be found written in correspondence between plaintiff, who resided in Roundup, and defendant M. J. Severson, who resided in Nelson, Wisconsin. That correspondence, however, is to be understood in the light of the surrounding circumstances developed at the trial.
Charles Dozios had occupied the first floor of the building in question as a clothing store for many years. . He had had a written lease, but the term of “that lease had expired and he had held over upon the same terms. On January 26, 1920, Dozios and M. J. Severson met in St. Paul and negotiated a new lease for three years, the terms of which were then agreed upon. Later a draft of the new lease was prepared by Severson’s attorney in Roundup, signed by Dozios, and forwarded to Severson for his signature. Because of some controversy which arose over the use of the basement of the building, Severson did not sign the lease, but Dozios retained possession and paid rent according to the new agreement. Dozios testified, in effect, that it was his purpose to remove the stock of clothing and install a stock of furniture which he had ordered upon the strength of the negotiations at St. Paul; that during February he did remove the stock of clothing, but left the fixtures in the building and did not give up or intend to give up possession; but that after this action was commenced early in March he canceled the order for the stock of furniture. It developed further that about May, 1920, Dozios sublet the premises to one Hulstone. In the meantime the correspondence between plaintiff and Severson was being conducted.
On February 8 plaintiff wrote to Severson, asking for a lease on the first floor of the building, and concluding: “If you are not willing to lease but wish to sell the building I will consider an offer to buy the property.” Severson answered on February 10 that he would not lease the property, as he had promised a lease to Dozios, and, if he sold, his price would be $12,000.
On February 12 plaintiff made an offer of $10,000 for the real property and the furniture used in the rooming-house on the second floor. On February 17 Severson replied: “Will take $10,500 for the property if I can make arrangements with Dozios about the lease.” To this letter plaintiff replied on February 19: “I will take you up on your proposition; I will give you what you ask for your property, $10,500 cash. This includes furniture upstairs. I will close the deal with you at once subject to any lease that you may have with Dozios or upstairs at this time, but will not stand for a new lease.”
It is conceded that the foregoing correspondence is immaterial except so far as it discloses the surroundings and gives color to what follows; that the parties had merely indulged in offers and counter offers without any acceptance by either of the offer of the other, and that plaintiff’s purported acceptance contained in his letter of February 19 was ineffectual for any purpose.
On February 27 Severson wrote to plaintiff: “Will sell to you for $10,500 cash, that is if Dozios is willing to vacate my building. I am writing him to-day asking him to move out as soon as he can. Now if I can sell I will have deed made out here and furniture included in deed. * * * I cannot sell if Dozios is not willing to move out without trouble.” On March 5 plaintiff wrote: “Answering your letter of February 27, wish to say that in my last letter writing to you I said that I will take your building subject to lease, so why you should worry about Dozios, whether he moves out or not. All you want is to get your money. I don’t think you wish to sell that house very bad. Send your deed and abstract. Dozios has nothing to say regarding yours and my deal. I let him stay in the house if he wishes to stay and pay me rent.”
It is not contended seriously that plaintiff and Severson had reached any agreement up to this time. Severson had never offered to sell subject to the Dozios lease, and plaintiff’s letter of March 5 is nothing more than a reiteration of his previous offer to purchase subject to that lease. However, on March 9 plaintiff sent to Severson the following telegram: “Your letter of the twenty-seventh of February received, offering to sell me your lot seventeen in block twenty-seven original town site of Roundup with furniture included for ten thousand five hundred dollars. I accept your offer and have deposited with the First National Bank of Roundup the full sum of ten thousand five hundred dollars to be forwarded by said bank to you by draft on receipt from you of deed for the real property, bill of sale of the furniture and abstract of title. The bank to forward to you the money without expense or charge to you. Dozios had vacated the property.” On the same day the bank at Eoundup notified Severson that plaintiff had deposited the money, which would be forwarded without expense to him upon receipt of a deed by the bank. On March 11 plaintiff wrote to Severson to the same.effect and concluded: “Dozios has vacated the house and it is now vacant.”
It is the contention of plaintiff that Severson’s letter of February 27 contained a distinct offer to sell, which was accepted unqualifiedly by his telegram of March 9, and thereby an enforceable contract was concluded. Plaintiff assumes, however, that Severson’s offer to sell was conditional solely upon Dozios removing from the building the stock of goods and other property which he then had in it and that he did vacate the premises. But neither the district court nor this court can be bound by the construction which plaintiff places upon the letter of February 27, nor by his interpretation of the evidence reflecting upon the question of Dozios’ removal. Viewed in the light of the testimony given upon the trial, the correspondence in its entirety leaves no room for doubt that by the use of the term “vacate” or “move out” Severson meant more than merely the removal of the stock of clothing to make room for the stock of furniture. He used those terms interchangeably and according to the usually accepted meaning of the word “vacate” — to yield up possession. He meant such an arrangement agreeable to Dozios as would terminate the Dozios lease. In his letters Severson had referred repeatedly to that lease, and in his letter of March 5 plaintiff called attention to his own former statement: “I will take your building subject to the lease.” On cross-examination plaintiff admitted that this reference was to the Dozios lease. In other words, plaintiff understood perfectly that the Dozios lease had to be terminated agreeably to Dozios or he would have to induce Severson to sell subject to that lease. We think the entire correspondence,, viewed in the light of the surrounding circumstances developed at the trial, is not subject to any other construction. Since Severson owned the property, he could offer it for sale upon such terms and subject to such conditions as he saw fit to impose. lie chose to treat his agreement with Dozios as a lease and to make the termination of that lease by agreement with Dozios a condition precedent to his offer of sale becoming effective; and, since that lease was not terminated, the offer lapsed by its own terms.
It is immaterial that the Dozios lease was not in form to meet the requirements of the statute of frauds. Dozios was in possession under the lease agreement and Severson recognized it as a lease and accepted rent according to its terms.
There is no conflict in the evidence as to whether. Dozios vacated the building prior to March 9. The trial court did not make a specific finding upon the subject, but, if a finding that he did not. vacate the premises were necessary to sustain the judgment, it would be implied. (Crosby v. Robbins, 56. Mont. 179, 182 Pac. 122.)
It is elementary that to constitute a contract the minds of the parties must have met upon the same thing at the same time; or, stated differently, a contract results from an offer by one party in form which may be accepted, and its unqualified acceptance by the other. (Glenn v. Birch & Sons Const. Co., 52 Mont. 414, 158 Pac. 834; Koerner v. Northern Pac. Ry. Co., 56 Mont. 511, 186 Pac. 337.) “Where an agreement is made subject to the consent of a third party it must be looked upon' as a conditional agreement dependent on such consent being given within a reasonable time, in default of which the agreement must be taken not to have become effective.” (13 C. J. 283.) In principle, that rule applies here; for it is manifest that Severson intended, and plaintiff so understood, that the offer to sell was subject to an amicable adjustment with Dozios which would have the effect of terminating the Dozios lease, and, since that lease was not terminated, the telegram sent by plaintiff on March 9 could not have the effect of concluding a contract. The minds of the parties never met upon the same thing at the same time, and neither of them ever became bound.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-44,
10,
49,
-39,
-52,
-42,
0,
29,
25,
40,
-37,
11,
72,
21,
29,
22,
-45,
17,
0,
-17,
7,
-55,
-4,
-40,
3,
14,
-52,
-61,
6,
-25,
45,
55,
-14,
27,
-1,
40,
4,
-25,
-25,
-44,
36,
-12,
-12,
-8,
74,
27,
96,
-16,
75,
16,
25,
-71,
-1,
-27,
-21,
-30,
-44,
51,
16,
41,
11,
-48,
19,
32,
-9,
-74,
51,
-2,
13,
11,
4,
-35,
16,
-34,
21,
-21,
-47,
0,
-67,
-35,
61,
-12,
9,
5,
-72,
31,
-14,
-36,
-7,
17,
-14,
50,
64,
74,
11,
-21,
18,
13,
11,
21,
3,
-54,
-30,
53,
7,
40,
-23,
10,
3,
17,
-12,
-10,
54,
82,
-12,
8,
-36,
-18,
13,
33,
9,
47,
-19,
12,
49,
22,
5,
10,
23,
25,
-9,
71,
0,
55,
-55,
8,
34,
-18,
0,
-10,
39,
42,
-43,
-3,
-27,
41,
-33,
40,
-19,
-35,
-65,
-9,
35,
58,
40,
-49,
-27,
-16,
-13,
-8,
16,
-92,
-15,
-58,
3,
-15,
32,
4,
16,
28,
-23,
-26,
-46,
-42,
26,
10,
3,
-15,
-49,
-37,
-27,
21,
-8,
-84,
-18,
-1,
34,
45,
-6,
30,
55,
-16,
-45,
-8,
-62,
20,
-45,
6,
8,
2,
-1,
-19,
6,
-43,
-7,
1,
48,
20,
22,
10,
0,
-49,
-51,
-20,
22,
21,
1,
10,
-40,
8,
27,
-41,
-54,
82,
-25,
7,
68,
10,
31,
-20,
-74,
28,
17,
-12,
-10,
-11,
-1,
13,
-41,
45,
14,
-36,
-3,
24,
-25,
16,
-52,
1,
0,
-41,
-36,
-23,
15,
0,
-14,
6,
-35,
-7,
14,
0,
37,
21,
-11,
-32,
-7,
-40,
23,
-42,
-3,
127,
-38,
11,
20,
28,
-28,
-35,
-3,
-4,
22,
-7,
-16,
-65,
69,
-16,
-13,
0,
46,
40,
-50,
10,
-44,
-16,
-8,
-58,
57,
3,
6,
-19,
5,
1,
-79,
-19,
-10,
24,
18,
-27,
-56,
-18,
-30,
-35,
5,
29,
1,
-52,
8,
-10,
-52,
9,
22,
-46,
32,
-1,
16,
38,
-15,
-22,
-28,
-22,
-14,
-8,
39,
43,
-36,
23,
-26,
31,
7,
-2,
56,
-2,
-1,
42,
-26,
-37,
-32,
30,
53,
-66,
-7,
-44,
-3,
-82,
-84,
40,
-32,
36,
12,
36,
-22,
-8,
48,
34,
16,
-7,
-56,
12,
-29,
-14,
-8,
0,
-26,
46,
-44,
-50,
0,
-11,
23,
-52,
-67,
56,
8,
-50,
-9,
0,
43,
24,
10,
-26,
-15,
8,
-49,
39,
19,
35,
-10,
-15,
-30,
20,
-33,
-29,
-7,
26,
-69,
0,
-42,
-5,
6,
-20,
-4,
25,
4,
-27,
-14,
-43,
17,
17,
-31,
-26,
25,
17,
-5,
-11,
6,
13,
28,
5,
6,
14,
-48,
8,
-43,
-5,
-3,
27,
-27,
13,
-29,
25,
-39,
14,
-9,
58,
-54,
17,
0,
45,
-12,
67,
4,
17,
50,
26,
15,
58,
46,
-22,
56,
-12,
66,
-10,
23,
-30,
-19,
21,
-15,
6,
18,
-30,
-54,
77,
-7,
0,
18,
-20,
12,
25,
-34,
-27,
15,
29,
-4,
2,
11,
26,
-39,
27,
-18,
-18,
-59,
41,
45,
4,
35,
12,
-18,
-23,
15,
12,
2,
23,
-38,
1,
-22,
-23,
-12,
-46,
35,
-29,
3,
29,
5,
33,
49,
41,
-9,
-26,
7,
-12,
-16,
31,
2,
20,
11,
-28,
27,
15,
58,
1,
-1,
-2,
-55,
27,
0,
-17,
32,
-46,
39,
12,
78,
-16,
1,
-10,
-8,
-5,
-3,
40,
-19,
-26,
68,
17,
-40,
-10,
0,
-46,
0,
-19,
3,
20,
8,
-17,
-10,
32,
16,
19,
26,
-15,
1,
-49,
24,
-9,
-45,
-7,
8,
-14,
-66,
-1,
-33,
-21,
-31,
7,
-35,
0,
-20,
4,
8,
4,
42,
30,
-40,
59,
-26,
-14,
-13,
6,
11,
-3,
-21,
21,
-8,
-3,
14,
-28,
-36,
-1,
-37,
-35,
-23,
33,
-10,
9,
-12,
2,
-3,
-6,
-21,
19,
29,
13,
29,
-16,
26,
24,
-19,
25,
24,
-6,
-21,
88,
2,
7,
-14,
-43,
46,
-16,
-22,
-17,
52,
10,
-63,
-40,
20,
-4,
5,
38,
-12,
10,
16,
29,
-3,
11,
-40,
39,
30,
14,
-20,
55,
30,
-27,
69,
14,
20,
-10,
-59,
-14,
10,
-9,
33,
-51,
0,
35,
52,
20,
62,
30,
-20,
-28,
9,
10,
51,
63,
27,
4,
-39,
23,
58,
-80,
36,
-36,
-29,
24,
9,
-7,
-56,
-26,
53,
56,
-26,
-10,
11,
-23,
-2,
25,
8,
-2,
-19,
70,
-31,
-2,
7,
-18,
5,
-28,
-43,
-13,
-35,
68,
-36,
9,
-18,
-1,
10,
-13,
30,
-51,
12,
-21,
41,
49,
24,
3,
-3,
13,
-10,
44,
9,
-7,
-65,
-66,
-1,
-64,
-30,
33,
-18,
58,
-31,
-28,
20,
0,
-52,
-63,
20,
7,
38,
-12,
8,
-19,
-11,
40,
-59,
21,
12,
7,
-23,
21,
0,
15,
42,
-39,
-45,
-17,
-22,
24,
-26,
0,
-20,
-2,
40,
10,
3,
-39,
-25,
33,
-2,
-3,
-19,
4,
52,
61,
39,
54,
-39,
-6,
-10,
-35,
-60,
-72,
-8,
68,
37,
1,
11,
15,
25,
20,
-14,
-8,
-22,
-20,
70,
15,
-40,
-11,
13,
4,
-14,
22,
-33,
-26,
50,
10,
-1,
-39,
-13,
10,
72,
-80,
-16,
-29,
-33,
12,
50,
-38,
-27,
11,
7,
11,
-21,
5,
-11,
-19,
-13,
-14,
-24,
56,
32,
-25,
-10,
19,
-21,
-44,
3,
9,
28,
12,
-18,
-13,
-18,
-10,
64,
3,
4,
33,
-36,
53,
50,
7,
-3,
-42,
11,
9,
1,
36,
13,
-28,
-49,
7,
-5,
9,
87,
-25,
-37,
-2,
-40,
-24,
-32,
19,
-11,
-10,
20,
68,
-8,
11,
-19,
-30,
22,
-35,
38,
-52,
61,
-32,
35,
-61,
8,
54,
-25,
-43,
34,
10,
34,
8,
13,
-58,
-23,
-47,
1,
31,
-54,
-17,
9,
26,
-16,
2,
-19,
22,
35,
-13,
-59,
38,
-32,
64,
-48,
72,
19,
5,
27,
-21,
14,
-1,
-50,
-44,
-27,
-18,
42,
-1,
-25,
-44,
1,
-34,
21,
12,
-5,
42,
5,
23,
-11,
49,
-41,
-30,
8,
1,
-15,
17,
17,
39,
16,
6,
28,
-11,
26,
-43,
-2,
-11,
-1,
6,
-44,
-5,
16,
29,
0,
-15,
9,
-22,
-52,
38,
-21,
21,
-3,
-1,
-40,
9,
-6,
-30,
45,
-9,
-46,
14,
-21,
20,
-14,
-44,
-11,
26,
0,
-3,
-20,
-7,
50,
17,
-13,
-8,
0,
-21,
10,
52,
-3,
25,
-1,
47,
-17,
13,
0,
-8,
-46,
-1
] |
PER CURIAM.
Relator’s application for Writ of Supervisory Control is this day, after due consideration, denied.
|
[
-22,
-62,
-15,
-31,
61,
-20,
14,
-14,
8,
-43,
-72,
9,
7,
56,
-19,
30,
58,
95,
3,
-45,
78,
48,
19,
52,
-42,
-17,
52,
29,
27,
-3,
-15,
-23,
-38,
15,
-69,
-11,
17,
-38,
8,
-26,
25,
31,
8,
25,
-48,
-70,
-9,
40,
-27,
-10,
4,
95,
-12,
-9,
-2,
19,
45,
-48,
12,
-48,
-59,
45,
20,
31,
22,
-16,
-85,
-48,
-11,
6,
-18,
10,
7,
-10,
65,
-4,
2,
1,
24,
-12,
45,
53,
-22,
41,
2,
45,
5,
43,
0,
-10,
33,
-32,
-63,
-13,
-82,
83,
15,
-21,
-16,
63,
10,
25,
48,
-62,
-66,
-52,
60,
34,
8,
33,
-20,
33,
-67,
12,
12,
26,
-19,
23,
54,
-29,
-47,
37,
-14,
-26,
50,
35,
-13,
53,
32,
-1,
32,
82,
48,
56,
-12,
-66,
74,
-12,
-44,
-64,
-56,
1,
41,
18,
-2,
-98,
30,
28,
-24,
-19,
24,
-23,
10,
36,
8,
32,
17,
4,
2,
39,
19,
20,
-21,
9,
58,
-24,
1,
-18,
-51,
-29,
29,
54,
-22,
-30,
-75,
-95,
-53,
45,
-2,
66,
34,
0,
0,
48,
-17,
9,
-8,
-24,
68,
-21,
-48,
-4,
45,
92,
79,
-7,
43,
-54,
32,
36,
-24,
92,
-52,
13,
31,
-89,
-29,
-89,
6,
19,
-65,
-48,
-22,
-23,
59,
-77,
36,
31,
56,
40,
9,
22,
-33,
-65,
17,
16,
14,
11,
0,
-23,
38,
-24,
-39,
5,
47,
-25,
34,
10,
29,
8,
-11,
39,
-10,
54,
24,
-51,
-10,
24,
29,
-68,
-39,
-3,
34,
-106,
-11,
-50,
-123,
38,
83,
-94,
29,
-27,
-37,
-41,
12,
0,
34,
60,
14,
-53,
-21,
3,
-17,
-4,
46,
6,
56,
-30,
26,
11,
-66,
24,
-13,
-4,
-49,
-10,
96,
-53,
11,
4,
26,
-14,
58,
-31,
-2,
-40,
-47,
9,
-25,
4,
-22,
14,
-12,
34,
31,
-11,
-6,
-51,
39,
-58,
9,
53,
3,
17,
0,
32,
-19,
-94,
4,
-50,
36,
-33,
-42,
59,
-29,
27,
-10,
47,
20,
27,
53,
28,
-40,
36,
20,
35,
-9,
52,
-13,
73,
-61,
83,
-25,
61,
-11,
-49,
7,
-13,
30,
66,
-15,
2,
-52,
-42,
41,
5,
-5,
-28,
-93,
23,
53,
-21,
-34,
10,
7,
-37,
23,
32,
0,
50,
0,
-20,
66,
-93,
32,
2,
-46,
12,
24,
-84,
-54,
-29,
71,
18,
-5,
10,
0,
51,
75,
-1,
-3,
-15,
-31,
-11,
-39,
14,
50,
100,
25,
28,
6,
-94,
-66,
61,
34,
-25,
-18,
13,
-30,
-19,
-68,
34,
-24,
-3,
-53,
44,
12,
-29,
68,
-12,
-82,
-56,
-82,
30,
-83,
44,
-62,
0,
-25,
37,
-34,
-8,
-10,
-53,
-29,
-39,
22,
-41,
5,
10,
6,
21,
-12,
-17,
8,
-18,
-77,
-76,
-48,
9,
-10,
0,
-31,
-43,
-17,
-19,
24,
40,
-26,
5,
-20,
6,
23,
18,
76,
-29,
55,
3,
-32,
-6,
-8,
-17,
-33,
33,
-30,
-20,
-95,
4,
-16,
54,
-49,
24,
8,
-50,
-7,
84,
20,
-9,
0,
13,
14,
24,
19,
86,
-91,
-30,
-7,
3,
-12,
21,
8,
69,
-6,
35,
44,
-6,
-22,
-8,
-45,
-39,
56,
-49,
17,
85,
31,
39,
-5,
29,
-1,
-6,
-38,
-45,
16,
14,
-11,
17,
-37,
-13,
1,
61,
-65,
-1,
-70,
-9,
8,
-47,
3,
54,
3,
36,
24,
-5,
-46,
32,
11,
78,
-56,
-15,
2,
-36,
5,
-18,
33,
86,
0,
-44,
38,
-56,
-18,
-35,
8,
5,
-33,
23,
-42,
-1,
-67,
33,
15,
21,
45,
-39,
-29,
39,
32,
-33,
33,
-24,
47,
-42,
-20,
67,
-10,
-45,
-64,
-57,
-63,
-35,
-19,
-13,
-19,
-23,
0,
-70,
6,
25,
-42,
0,
-32,
63,
-16,
53,
10,
5,
-22,
-10,
18,
27,
-25,
2,
28,
-29,
-13,
-3,
-43,
-31,
7,
61,
18,
53,
72,
76,
-65,
1,
-34,
-12,
-36,
-18,
83,
59,
-3,
58,
17,
-13,
25,
-10,
-59,
-23,
-27,
-31,
5,
-38,
82,
-41,
-18,
-28,
47,
-54,
21,
17,
75,
75,
19,
-45,
7,
-47,
-28,
-26,
13,
10,
-59,
20,
-35,
17,
-46,
-8,
-30,
16,
16,
50,
-3,
24,
93,
-41,
-5,
-97,
74,
-73,
23,
42,
-1,
-31,
-75,
-46,
41,
-22,
5,
-16,
-37,
91,
22,
-69,
12,
19,
27,
34,
-14,
30,
-30,
15,
-14,
-32,
-4,
-5,
-58,
6,
-54,
-98,
-12,
-36,
-33,
-70,
-20,
-22,
77,
1,
2,
-32,
27,
-23,
-43,
-2,
8,
17,
-29,
-23,
20,
-37,
51,
2,
6,
37,
56,
2,
-22,
-65,
36,
11,
39,
-47,
-6,
16,
2,
-33,
-14,
-19,
18,
25,
-14,
6,
66,
-8,
-89,
18,
-43,
7,
-6,
-42,
78,
23,
29,
-42,
-14,
33,
-31,
69,
-23,
-34,
12,
24,
7,
-25,
62,
17,
16,
47,
14,
14,
43,
12,
-21,
7,
-6,
48,
50,
30,
-61,
-15,
-1,
-30,
24,
14,
5,
-11,
48,
32,
-23,
16,
55,
-8,
6,
3,
41,
-8,
6,
-5,
-78,
31,
4,
14,
59,
-18,
-56,
62,
-3,
75,
25,
30,
48,
-30,
35,
-3,
44,
-1,
22,
20,
31,
47,
-26,
99,
-49,
7,
9,
41,
-51,
-37,
19,
4,
28,
-37,
54,
-19,
11,
-3,
21,
-32,
-40,
37,
19,
64,
17,
-68,
12,
77,
42,
14,
63,
54,
31,
-13,
-30,
47,
7,
-20,
5,
-3,
20,
-47,
-1,
55,
0,
-40,
32,
29,
31,
1,
15,
31,
-6,
55,
-16,
57,
6,
5,
22,
19,
-25,
-34,
-29,
9,
21,
-17,
-53,
21,
82,
-72,
4,
25,
-31,
-21,
-36,
2,
-24,
5,
46,
10,
39,
6,
49,
-1,
-29,
57,
-24,
-17,
6,
-27,
-27,
40,
-91,
-30,
-41,
41,
-1,
-69,
26,
-8,
-38,
23,
27,
-86,
50,
-35,
-22,
-9,
-7,
-23,
-26,
23,
-41,
12,
18,
-34,
1,
-13,
-52,
-31,
-21,
-9,
76,
-34,
-13,
-37,
1,
-42,
-28,
-79,
21,
31,
26,
2,
-29,
0,
-41,
97,
-68,
19,
2,
24,
-43,
-58,
-20,
15,
23,
0,
-60,
40,
-39,
-19,
8,
-37,
9,
43,
26,
-15,
-66,
-57,
-12,
40,
-10,
-88,
-4,
5,
3,
-47,
25,
0,
-74,
-9,
13,
99,
57,
24,
33,
-24,
-8,
14,
4,
-4,
8,
16,
50,
50,
24,
27,
14,
-35,
17,
-16,
-28,
-7,
-31,
-37,
51,
-82
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The defendant, Frank A. Shurtliff, appeals a Jefferson County District Court conviction for deliberate homicide, robbery, and theft. The issues in this appeal are whether defendant was denied a speedy trial and whether the State’s case was sufficiently corroborated. We affirm.
On February 22, 1978, the State filed an information against the defendant charging him with deliberate homicide, robbery, and theft. The defendant’s trial was set for June 5, 1978, but by subsequent order of the court the date was vacated and twice reset. On January 17, 1979, the court set the trial date for March 5, 1979. Five days later the State filed an amended information which charged the defendant with deliberate homicide, aggravated kidnapping, robbery, and theft. Trial was held on March 5, 1979, and the jury returned a guilty verdict to the charges of deliberate homicide, robbery, and felony theft. On April 6, 1979, the court filed its judgment and order sentencing the defendant to concurrent terms of 75 years for deliberate homicide, 25 years for robbery, and 10 years for felony theft. The defendant filed a motion for a new trial or other relief, all of which was denied. Defendant appeals from the underlying convictions and from the trial court’s denial of his motion for a new trial.
The scene for these crimes started in Butte at 2:00 a. m. as the bars closed. The defendant and Yvonne Johnson met with the victim, Douglas Barber, outside the Keyboard Club. The victim suggested that they continue their partying and they then drove in the victim’s automobile to a nearby house where they partied for about an hour. While at the house, defendant and witness Johnson discussed taking the victim’s money. After leaving the house, the three people drove around town for a short time before departing for Elk Park.
On the way to Elk Park, the defendant and Johnson revealed to Barber that they planned to take his car and money, and leave him to die in the cold. Barber became very frightened and begged the defendant not to let him die. He attempted to jump from the car, but the defendant grabbed him and prevented him from escaping. Then Barber began to cry and continued crying almost all the way to Elk Park.
The defendant, who was driving Barber’s car at the time, left the interstate and drove to a farm in the lowlands of Elk Park. He stopped the car. Barber handed his wallet to the defendant and stated, “Take my car and my money. This is all I got, but don’t let me die.” The defendant took Barber’s wallet and told him to remove his clothes. The deceased refused, and the defendant and Johnson removed the deceased’s coat and one boot. A struggle occurred in which Barber was beaten across the face. Barber escaped from the car but his glasses, coat and one boot remained inside. Barber, who was nearly sightless without his glasses, ran blindly across a snow-covered field. The defendant started the car and turned it around, and Johnson assumed the driver’s position and drove away from Elk Park. Barber’s body was recovered in Elk Park a little more than one week later. He had frozen to death.
The defendant was arrested in Butte, and placed in jail on February 16, 1978. On February 22, 1978, the State filed an information which was subsequently amended to charge the defendant with deliberate homicide, aggravated kidnapping, robbery, and felony theft. Trial commenced on March 5, 1979. The State’s case rested entirely on the testimony of Yvonne Johnson. The defendant presented no witness in his own defense. The jury found him guilty of the crimes of deliberate homicide, robbery, and felony theft.
Defendant contends first that he was denied his right to a speedy trial. Second, he contends that the State did not adequately corroborate the testimony of his accomplice, Yvonne Johnson. In this respect, defendant further argues that Yvonne Johnson’s testimony, because it is accomplice testimony, cannot be used to establish either the corpus delicti of the crimes or his intent to commit the crime. His last assignment of error is a vague contention that the court erred in instructing the jury.
A speedy trial question must, of course, be resolved by balancing the length of the delay, the reason for the delay, the defendant’s assertion of his rights, and the degree of prejudice to the defendant. See State v. Puzio (1979), 182 Mont. 163, 595 P.2d 1163; Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The defendant was incarcerated on February 16, 1978, but he was not brought to trial for over a year. This interim is clearly long enough to require the State to explain the reason for the delay and to show the absence of prejudice to the defendant. See Puzio, supra. The defendant made a timely assertion of his right to a speedy trial by filing motions to dismiss on December 5, 1978, and on the opening day of trial. Thus, our analysis focuses on the reason for the delay and the degree of prejudice suffered by the defendant.
The defendant’s trial occurred 382 days after his arrest on February 16, 1978. The trial was initially set for June 5, 1978, but this date was vacated when the defendant moved for a continuance in order to interview new witnesses. The State sent a letter to the defendant asking him whether July 10, 1978 was a suitable date for trial. However, this date became impracticable when the defendant filed a motion for substitution of the trial judge. On June 21, 1978, the court held the hearing on defendant’s motion. However, at approximately the same time defendant’s first court-appointed counsel resigned and another court-appointed counsel was assigned to the case. The trial court reset the trial date for September 20, 1978, which was apparently an attempt to give new defense counsel time to prepare for trial.
A further delay resulted when defendant’s counsel was substituted a second time. Defendant’s second counsel ran for and was elected county attorney. In January 1979, John Jardine and Jack McCarthy were appointed counsel. At a hearing on January 10, 1979, the State informed the court that it was ready to go to trial and asked the court to set a firm date. Trial was reset for March 5, 1979, the date on which trial actually commenced,
We do not believe the delays caused by defendant’s substitution of counsel should be attributed to the State. There is no mechanical test for determining whether the State or the defendant should be charged with any given pretrial delay. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780, 785. The delays here appear to be the result of personal actions taken on the part of defense counsel rather than result of the justice system’s failure to provide the defendant with effective counsel. Under these circumstances, the delay should not be weighed against the State.
A majority delay chargeable to the State occurred when Yvonne Johnson, the State’s most important witness, left the United States in November 1978. On November 17, 1978, the State moved for a continuance and the court reset the trial date from November 29, 1978 to January 15, 1979. Johnson’s disappearance, however, was not a result of the State’s lack of diligence, and the length of the delay was insignificant in light of two delays resulting from substitution of defense counsel.
The defendant argues that the State’s filing of an amended information on January 22, 1979 indicates that the State was not ready to proceed to trial before March 5, 1979. The State amended the information to comply with a decision we had later handed down. This argument clearly lacks merit. The State in a letter directed to the defendant on June 13, 1978 stated that it desired trial to be set on July 10, 1978. On January 10, 1979, after the defendant had acquired his third set of counsel, the State asked the court to set a firm date for trial. The record does not suggest that the prosecution took any action to stall for more time. On the contrary, the bulk of the pretrial delays were taken to accommodate the defense in its trial preparation.
The last factor relating to the right to a speedy trial is the degree of prejudice suffered by the defendant. The degree of prejudice is determined by considering the oppressiveness of the pretrial incarceration, the anxiety and concern of the defendant and the impairment of the defense. See State v. Carden, supra.
We do not find prejudice here. Although the defendant was incarcerated for approximately eleven months, the defendant’s activity pretrial indicates that the long pretrial period was actually to his benefit. In addition to allowing each set of defense counsel additional time to prepare for trial, defendant used the period to obtain a continuance to interview new witnesses, to present arguments at a hearing to substitute the trial judge and to obtain a psychiatric examination to support his insanity defense. The record indicates that the defendant was actively preparing his defense throughout the entire pretrial period.
The defendant contends that his defense was weakened by his inability to take the deposition of Yvonne Johnson prior to trial. Yvonne Johnson left the country in November 1978 and her whereabouts were unknown until December 1978. Defendant’s argument carries little weight because there is no showing that in the months prior to Ms. Johnson’s disappearance or in the months following her return that the defendant was prevented from deposing Johnson. Statements made to the police by Ms. Johnson were included in the State’s affidavit for leave to file an information on February 22, 1978, and on October 20, 1978, the defendant filed a notice of intent to depose Ms. Johnson. Thus, it is clear that from the very beginning of the proceedings against him, the State had put defendant on notice that Johnson could be a witness. Nothing in the record suggests that the defendant was unable to depose Johnson prior to her disappearance from this country.
The defendant presented no witnesses in his defense and provided this Court with no facts suggesting that his defense was weakened as a result of the delay. Defendant was not denied a speedy trial.
The defendant next contends that the State’s evidence corroborating that of his accomplice, Yvonne Johnson, is insufficient as a matter of law. There can be no question that defendant could not have been convicted without Johnson’s testimony; but this fact does not establish that the corroborating proof was insufficient.
Section 46-16-213, MCA, which governs the admissibility of accomplice testimony provides:
“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
The State is not required to corroborate every fact to which the accomplice testifies. It is sufficient if the corroborating evidence tends to connect the defendant with the commission of the crime. State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, 748. However, independent evidence must show more than the mere opportunity to commit the crime. If the corroborating facts and circumstances are as consistent with innocence as guilt, the corroborating testimony must be set aside. State v. Jones (1933), 95 Mont. 317, 26 P.2d 341. In the present case the following corroborating evidence was introduced.
Lucille Hunt, an intimate friend of the victim, testified that she last saw him on the night of January 3, and identified exhibit 4 as a picture of Barber’s coat, and exhibits 2A and 2B as pictures of the victim’s blue Pontiac automobile.
Tommy Strictland, the owner of the Keyboard Clúb in Butte, testified that he saw the victim and the defendant with a girl outside of his club at approximately 2:30 a.m. on the morning of January 4. The victim’s body was found at Elk Park, a community located between Butte and Boulder. The defendant was seen with a girl in Dot’s Spot Cafe in Boulder at 6:00 a. m., January 4. A Boulder paperboy testified that on the morning of January 4, the driver of a car resembling Barber’s vehicle asked him for directions to a motel. He identified Ms. Johnson as the woman in the car.
Later that morning, the defendant drove a car into the O-Z Motel parking lot, and received a room from the clerk, Donna Axt. On the motel’s register card, the defendant gave a fictitious name and did not fill in the blanks on the card concerning the make and license number of his car. At Mrs. Axt’s request, the defendant informed her that he was driving a Pontiac, but he refused to give the license number on his car. The defendant parked his car in back of the motel where it was not visible from the highway. Mrs. Axt stated that the coat defendant was wearing when he came into the motel was very similar to Barber’s coat, but she could not identify it with certainty.
On the night of January 4, the defendant was arrested in Boulder for disorderly conduct. He gave a false name to the arresting officer. A missing persons report was filed on January 7 or 8, and the deceased’s frozen body was found on January 11. When he was arrested in Butte, defendant was found hiding under a bed. The jury was not required to view this as the conduct of an innocent man.
The physical evidence connects the defendant with the victim, with the victim’s vehicle, and with the victim’s coat. This, together with defendant’s behavior at the O-Z Motel and at the time of his arrest, is sufficient corroborating evidence.
The defendant next contends that accomplice testimony cannot be used to prove either the corpus delicti of a crime or to prove criminal intent. To adopt this view would of necessity require us to rule that accomplice testimony can be used only as supporting or cumulative evidence. Defendant cites no authority, nor has this view been followed in any jurisdiction to which we have been referred. See State v. Gambrell (C.A.1977), 116 Ariz. 188, 586 P.2d 1086; Fortune v. State (Okl.Cr. 1976), 549 P.2d 380; People v. McLaughlin (1957), 156 Cal.App.2d 291, 319 P.2d 365. Our own rules regarding corroboration are inconsistent with the defendant’s argument. Corroborating testimony need not be sufficient to establish guilt or even a prima facie case. State v. Cobb (1926), 76 Mont. 89, 92, 245 P. 265. Section 46-16-213, MCA, supra, does not expressly limit the use of corroborating testimony to that argued for by the defendant, and we decline to so construe the statute.
The defendant has presented numerous arguments concerning the trial court’s instructions. He asserts that the court’s instruction on the felony murder rule was erroneous because one sentence in the instruction used the word “crime” rather than felony. However, this statement of the law did not prejudice the defendant because other portions of the same instruction referred to actions in furtherance of a “felony” and each of the crimes which the defendant allegedly committed were felonies.
The defendant contends that two instructions place undue emphasis on the terms “aiding and abetting” and presupposes that there is corroboration of the accomplice’s testimony. No undue emphasis is contained in these instructions and another instruction properly instructed on corroboration.
This instruction states that “the corroboration of an accomplice need not be sufficient to justify a conviction and it need not be sufficient to connect the defendant with the commission of the crime. If [sic] is sufficient if it tends to do so.”
The defendant argues that the phrase “beyond a reasonable doubt” should be added to the end of the last sentence quoted above. However, this would be an incorrect statement of the law. Corroborative testimony is sufficient if it “tends to connect the defendant with the commission of the offense.” Section 46-16-213, MCA. The defendant’s argument is without merit. Furthermore, the jury was given a proper reasonable doubt instruction.
The defendant’s objection to instructing the jury on the question of defendant’s flight is baseless. He contends there was no evidence of flight, but Donna Axt’s testimony concerning the defendant’s use of a fictitious name, and his covert behavior concerning his car presented the jury with evidence suggesting flight. And the accomplice’s testimony, furthermore, contains a detailed explanation of the defendant’s flight from the scene of the crime.
Judgment is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
44,
76,
-16,
16,
-44,
-47,
-20,
-17,
0,
49,
29,
-90,
9,
-12,
29,
-10,
-68,
-9,
16,
-9,
0,
-7,
19,
2,
-7,
-34,
-6,
-32,
-51,
6,
65,
-10,
20,
-44,
37,
21,
6,
-30,
-14,
16,
-24,
-29,
7,
-36,
31,
6,
-15,
-81,
-28,
-61,
6,
-21,
19,
8,
46,
37,
3,
-23,
-27,
14,
9,
-26,
-74,
3,
17,
-8,
16,
2,
-6,
-16,
-32,
-35,
-5,
-45,
2,
-83,
-6,
-4,
9,
4,
-29,
-15,
23,
15,
-28,
-47,
-36,
-52,
-10,
-52,
-19,
-10,
57,
0,
32,
22,
7,
-55,
19,
-25,
-1,
-62,
-30,
5,
-29,
-24,
-8,
-39,
27,
26,
-29,
28,
24,
47,
-27,
4,
-8,
-11,
38,
21,
7,
-16,
48,
-13,
54,
0,
-20,
12,
56,
-23,
-11,
22,
50,
22,
-15,
32,
-7,
-2,
-44,
-11,
-55,
43,
6,
-9,
0,
52,
20,
44,
32,
66,
-52,
-2,
56,
63,
64,
-41,
-15,
-54,
-68,
24,
17,
-28,
18,
-7,
38,
30,
-48,
-43,
-3,
4,
-61,
0,
-26,
42,
66,
6,
38,
12,
-40,
0,
-2,
52,
29,
36,
34,
-4,
32,
-11,
7,
40,
-22,
19,
-7,
-58,
46,
-10,
30,
-66,
51,
-5,
24,
-25,
19,
32,
40,
-10,
30,
40,
65,
-14,
32,
-5,
-16,
29,
9,
2,
-20,
8,
22,
-18,
-22,
31,
-29,
-41,
-59,
50,
-37,
13,
-23,
-18,
15,
22,
-1,
-55,
-14,
-53,
10,
-43,
32,
7,
-8,
-42,
64,
-22,
12,
65,
-1,
-1,
-75,
11,
18,
-27,
36,
47,
-41,
15,
44,
-27,
31,
17,
7,
-14,
76,
-8,
25,
4,
-38,
8,
-42,
-1,
47,
-39,
16,
9,
-29,
-26,
-30,
5,
18,
35,
81,
6,
15,
-35,
23,
-3,
-49,
26,
33,
18,
10,
-26,
14,
-12,
30,
-53,
7,
-14,
2,
-3,
41,
-32,
-48,
-29,
23,
10,
0,
-3,
-20,
41,
22,
23,
-46,
17,
44,
10,
-8,
-30,
59,
2,
-10,
-18,
26,
-18,
35,
17,
-22,
49,
-72,
28,
-31,
14,
-31,
9,
-71,
-21,
-29,
17,
34,
31,
-38,
-43,
-12,
24,
44,
23,
-5,
21,
-44,
-54,
-24,
-48,
-18,
-51,
-9,
-39,
-31,
-35,
28,
-16,
77,
0,
-66,
5,
5,
8,
-4,
-7,
33,
-11,
-11,
-37,
13,
-12,
27,
-18,
18,
-18,
19,
7,
53,
-42,
7,
-37,
-3,
8,
76,
-8,
11,
37,
20,
30,
15,
-49,
45,
-8,
-17,
-10,
36,
-97,
-55,
53,
63,
-21,
-21,
2,
-28,
37,
17,
-35,
24,
-13,
82,
33,
8,
-43,
-9,
-4,
-52,
-4,
-2,
-7,
37,
-29,
13,
35,
-31,
7,
-65,
-33,
71,
11,
27,
-10,
-5,
-9,
-32,
4,
7,
-17,
-12,
-23,
4,
76,
5,
-18,
-32,
-58,
51,
29,
-24,
16,
32,
10,
-40,
40,
46,
8,
12,
2,
14,
39,
7,
22,
24,
-17,
-15,
13,
-26,
-37,
22,
24,
-10,
-17,
3,
17,
25,
59,
10,
-6,
-31,
-47,
28,
-16,
25,
-12,
20,
-59,
26,
40,
27,
-5,
49,
-22,
11,
4,
-19,
84,
23,
-24,
-31,
-46,
-3,
19,
32,
4,
69,
5,
-56,
24,
10,
62,
11,
-54,
-15,
-11,
13,
-9,
-2,
0,
-33,
5,
25,
61,
-79,
-12,
5,
24,
-14,
-50,
-16,
-49,
-25,
-24,
19,
13,
-42,
-21,
6,
-34,
23,
-18,
13,
20,
-48,
26,
32,
-33,
45,
17,
15,
-11,
25,
-29,
-20,
-47,
-23,
-6,
18,
-44,
-24,
40,
-23,
41,
11,
-1,
-26,
15,
-7,
13,
-38,
59,
-3,
22,
58,
29,
-2,
-20,
3,
26,
46,
52,
-81,
23,
-52,
21,
14,
-13,
-21,
26,
-12,
10,
22,
8,
-7,
0,
-31,
-56,
13,
-52,
16,
14,
5,
23,
62,
-32,
-37,
-60,
-12,
-24,
38,
23,
-63,
-7,
-13,
37,
-5,
-8,
1,
-19,
46,
-70,
10,
25,
-11,
-17,
-48,
-73,
18,
19,
-43,
-10,
24,
23,
-53,
-22,
24,
-14,
-37,
1,
24,
60,
-36,
1,
8,
66,
-15,
-16,
52,
-56,
-51,
-32,
28,
-80,
-3,
-58,
-39,
-24,
-18,
5,
2,
51,
-67,
-42,
-11,
25,
25,
-33,
-6,
60,
79,
-13,
27,
-35,
-13,
-26,
-68,
15,
-4,
32,
5,
-11,
30,
23,
-7,
64,
-32,
-27,
18,
-2,
-43,
55,
3,
69,
12,
-4,
23,
-10,
-80,
-4,
27,
-30,
-14,
0,
15,
-2,
51,
-64,
-51,
15,
-47,
-7,
14,
-39,
-16,
-35,
-76,
-3,
-22,
36,
-84,
-29,
0,
-1,
50,
-23,
7,
17,
-12,
-50,
68,
37,
-48,
50,
27,
-2,
-8,
-8,
15,
4,
-16,
-39,
45,
7,
20,
-26,
-32,
-56,
-9,
16,
53,
17,
33,
-2,
-17,
4,
65,
21,
-45,
-19,
45,
52,
8,
-22,
-15,
-10,
38,
-14,
1,
-2,
-33,
43,
28,
6,
-10,
-47,
20,
-50,
17,
21,
-22,
38,
-7,
-20,
32,
43,
-30,
-27,
-6,
-29,
0,
-34,
-33,
0,
-9,
-8,
17,
36,
61,
31,
14,
23,
31,
5,
13,
-8,
6,
33,
-7,
0,
48,
6,
8,
2,
13,
-15,
-8,
-70,
17,
-17,
34,
-28,
47,
5,
31,
-3,
-37,
-1,
-35,
-12,
-39,
-18,
27,
17,
18,
-5,
0,
22,
-4,
9,
-2,
-4,
4,
-2,
46,
-30,
35,
-70,
31,
6,
44,
-14,
-10,
14,
-31,
67,
-45,
0,
-6,
-17,
22,
14,
12,
-22,
-57,
0,
41,
19,
-39,
18,
-63,
-34,
18,
64,
-2,
31,
-23,
37,
48,
-48,
-2,
-15,
12,
30,
-6,
-82,
3,
-7,
58,
-7,
-17,
3,
-3,
-35,
33,
-54,
-15,
32,
-11,
-55,
-8,
37,
10,
18,
79,
-70,
6,
32,
3,
20,
-21,
-47,
33,
4,
15,
3,
-43,
22,
34,
-4,
-46,
38,
35,
33,
17,
-39,
-23,
19,
-3,
42,
-64,
44,
1,
-76,
-34,
22,
13,
-22,
1,
-54,
-48,
34,
-28,
3,
-9,
26,
36,
-80,
-53,
25,
-14,
9,
-26,
44,
64,
-6,
36,
-56,
16,
16,
-33,
-29,
-30,
7,
37,
-42,
17,
13,
70,
6,
64,
-55,
-50,
-4,
39,
-57,
10,
14,
-17,
-70,
-1,
-2,
30,
-8,
17,
39,
44,
28,
-42,
18,
-6,
-21,
-22,
48,
5,
28,
-26,
-18,
4,
0,
-5,
39,
26,
24,
18,
-4,
4,
24,
45,
1,
3,
16,
-34,
-23,
-5,
3,
-27,
32,
14,
21,
-60,
2,
-16,
21
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The wife appeals from an order of the Cascade County District Court modifying the maintenance provision of an original dissolution decree.
The original dissolution decree provided child custody, child support, and a property division. The decree also required the husband to pay $250 per month in maintenance to the wife. At the time of the dissolution, the husband was employed as a brakeman by Burlington Northern, Inc. earning approximately $24,000 per year, and financially able to pay maintenance.
In April 1976, however, the husband was injured while on the job and as a result his employment was terminated in December 1976. The husband is not employable. Since March 1977, he has been receiving $529.13 per month disability payment from the Railroad Retirement Board, and those payments were increased to $569.29 in June or July of 1978. Additionally, he received $200 monthly from two Prudential Insurance Co. policies although those payments were scheduled to terminate in December 1978. At the time of the modification hearing, the husband also had a FELA claim pending as a result of injuries received while on the job.
On February 3, 1977, the husband filed an affidavit and petition for an order to show cause seeking the elimination of the maintenance provision. He stated in his affidavit that he had sustained a loss of income which will continue, and that he was unable to comply with the maintenance award contained in the original dissolution decree.
On October 18, 1978, a hearing was held. On the next day, the trial court entered findings of fact, conclusions of law, and an order. The trial court found that the wife had a monthly income of $228.40 and monthly expenses of $273.62, resulting in a monthly deficit of $45.22. The trial court concluded, furthermore, that there had been a drastic reduction in the husband’s income since December 1976, due to the industrial accident which resulted in his unemployment. Finally, the trial court found that the husband was unable to meet the needs of the wife while meeting his own needs, and therefore modified the decree.
The trial court ordered the husband to continue paying child support in the amount of $150 per month for the support of the parties’ daughter. However, the trial court eliminated the mainten- anee provision in the original dissolution decree, to be effective on February 1, 1977. On October 27, 1978, the wife filed a motion for a new trial and this motion was denied by the District Court on December 13, 1978. This appeal followed.
The sole issue on appeal is whether the trial court erred in modifying the original dissolution decree by eliminating the maintenance award.
The wife does not dispute that the husband’s disability and reduction in income represents substantial changed circumstances. She does argue, however, that the husband’s changed circumstances are not continuing. She argues that the trial court erred in not considering the effect of the husband’s impending FELA settlement. The husband contends, on the other hand, that his permanent injury constitutes changed circumstances, and that he has no further earning capacity. In this respect he argues that the changed circumstances must be examined at the time the motion for modification is made. He therefore argues that the trial court was not in error by failing to consider a potential settlement of the FELA claim.
Under section 40-4-208, MCA, a district court may modify an original dissolution decree as to an award of maintenance only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, or upon written consent of the parties. Kronovich v. Kronovich (1978), 179 Mont. 335, 588 P.2d 510; Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d 929. The parties here did not consent in writing to the modification of the original dissolution decree. With respect to the modification of maintenance provisions, the commission comment discusses the standard imposed in the following manner:
“. . . the person seeking modification must show that circumstances have changed since the date of the original order so that the order is unconscionable at the time the motion is made and will continue to be unconscionable unless modified. This strict standard is intended to discourage repeated or insubstantial motions for modification.” Uniform Marriage and Divorce Act, § 316.
The record shows that the husband had received periodic advances, which he stated would be deducted from a final settlement reached with the Burlington Northern. The FELA claim was pending at the time of the modification hearing, but, the trial court concluded that the possible FELA settlement was too speculative to be properly considered in the modification proceeding. The husband suggested that should he obtain the FELA settlement, it would perhaps constitute a changed circumstance which would permit another modification.
Because of disclosures made to this Court in response to questions from the bench during oral argument, we decline to reach the merits of the question raised here.
Needless to say, if the husband here received his settlement from the railroad, the question raised here would be moot for the case would have to be remanded to determine if the wife was entitled to a share in any of the settlement money received, and if so, how much. That is precisely the question that exists here. Upon questioning from the bench, counsel for the husband reluctantly revealed that in fact a settlement had been received. He pointed out, however, that he was not personally involved as the husband’s attorney in effectuating the settlement. It appears that the husband dealt with the railroad on his own.
The real problem here, however, is that after the appeal was filed in this case, and during its pendency, counsel for the wife did not bother to ask counsel for the husband if the husband had received a settlement. Counsel for the husband did not bother to inform the wife’s counsel that a settlement had been achieved. If this had been done, the parties would then have been in a position to petition to dismiss the appeal without prejudice. This is a clear instance of the failure of counsel to communicate with each other and to inform this Court as to the status of the case. Obviously, if we had been informed that a settlement had been reached, we could have dismissed the appeal without prejudice. This Court should not be burdened with preparing for and hearing appeals that are either premature, or because of intervening circumstances occurring between the time of filing the notice of appeal and the time of hearing, have become moot.
For the foregoing reasons the appeal is dismissed without prejudice and this cause remanded to the District Court for further proceedings to determine whether the wife is entitled to any share of the settlement reached by the husband.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
-47,
2,
-35,
35,
-18,
-23,
-50,
-29,
34,
-32,
-1,
11,
22,
-16,
-42,
0,
-20,
-51,
-9,
22,
-24,
0,
23,
-8,
11,
58,
-35,
-10,
-40,
-19,
17,
-8,
-15,
18,
-18,
-3,
-66,
12,
16,
0,
-17,
-63,
-10,
0,
-10,
28,
46,
-14,
-40,
-7,
-20,
-48,
12,
-19,
103,
74,
-15,
19,
-47,
-27,
-25,
8,
-23,
75,
44,
-8,
60,
35,
36,
-2,
-43,
-38,
6,
-43,
-24,
-54,
-26,
46,
-57,
6,
-10,
-20,
-18,
-25,
-18,
-3,
25,
72,
0,
42,
-16,
9,
28,
78,
-37,
18,
-27,
-16,
-5,
26,
-27,
-21,
28,
-10,
-8,
4,
23,
32,
4,
-6,
34,
-20,
31,
37,
21,
13,
3,
-53,
41,
-9,
54,
0,
-6,
-54,
55,
-45,
-25,
43,
13,
-32,
-11,
7,
13,
20,
-33,
-53,
20,
-2,
20,
-4,
-2,
-32,
8,
-16,
13,
32,
30,
-43,
17,
-57,
11,
-26,
81,
16,
84,
-33,
-16,
-9,
70,
-7,
36,
23,
-19,
5,
6,
-9,
6,
56,
14,
-3,
55,
-22,
-62,
-77,
32,
-6,
15,
-4,
-13,
9,
-10,
59,
-28,
-16,
26,
16,
-14,
-21,
-2,
-58,
0,
6,
24,
19,
8,
-16,
42,
26,
56,
18,
26,
-19,
-17,
58,
4,
5,
16,
39,
-26,
30,
53,
0,
-22,
-25,
-62,
24,
-32,
6,
-6,
-19,
47,
14,
-11,
-62,
-68,
4,
-20,
0,
-3,
-5,
-47,
23,
-6,
14,
-20,
7,
25,
-4,
-11,
27,
-3,
-4,
-28,
27,
23,
-1,
-22,
-3,
-24,
-1,
9,
-17,
-19,
43,
-13,
12,
-29,
5,
19,
0,
31,
21,
21,
6,
13,
-81,
15,
32,
19,
7,
72,
4,
66,
-8,
46,
-26,
-8,
-33,
-21,
43,
-43,
39,
-11,
10,
-5,
23,
30,
-19,
46,
28,
29,
-86,
38,
1,
16,
-29,
-20,
-50,
-39,
-10,
-33,
-87,
-37,
58,
-22,
3,
-45,
-9,
1,
23,
-11,
-25,
-5,
1,
28,
2,
-26,
-28,
-38,
7,
30,
24,
-22,
7,
7,
24,
14,
-2,
-7,
2,
-22,
11,
-27,
6,
57,
-51,
10,
25,
-9,
6,
13,
-27,
-6,
60,
-26,
-23,
12,
8,
12,
11,
-22,
34,
28,
-5,
-59,
-7,
17,
-55,
-43,
-37,
11,
-10,
-30,
-50,
-16,
74,
31,
-5,
-10,
29,
-4,
6,
16,
32,
50,
-2,
24,
24,
3,
-22,
24,
-2,
19,
-25,
-59,
17,
15,
-44,
-63,
7,
1,
15,
29,
10,
31,
38,
62,
18,
-45,
26,
15,
3,
24,
0,
44,
-16,
7,
-37,
-68,
-8,
-58,
-23,
-23,
13,
44,
-10,
57,
-25,
-15,
18,
-1,
16,
5,
-5,
44,
40,
-57,
-53,
-6,
32,
-11,
19,
5,
19,
22,
-35,
21,
6,
-23,
15,
3,
34,
16,
13,
26,
25,
-11,
-51,
56,
-37,
-27,
-67,
9,
53,
42,
-46,
14,
0,
-62,
-39,
-41,
24,
9,
-9,
60,
-32,
-11,
20,
-23,
29,
-47,
34,
29,
50,
19,
1,
-27,
-44,
14,
-12,
-31,
-8,
-44,
2,
15,
26,
-32,
-35,
-54,
22,
71,
-49,
33,
-4,
5,
-43,
-11,
-11,
8,
-8,
-44,
-37,
29,
0,
15,
-38,
-9,
-5,
-30,
20,
-18,
-2,
75,
5,
-9,
-38,
-22,
16,
95,
6,
-26,
51,
10,
-21,
35,
-15,
-12,
37,
-23,
-5,
17,
77,
-18,
-7,
1,
36,
-6,
7,
-4,
-51,
55,
17,
-15,
-25,
20,
8,
-16,
5,
5,
53,
20,
-55,
0,
11,
33,
-18,
-31,
19,
36,
-59,
26,
-20,
-62,
-2,
16,
-31,
-18,
-7,
-24,
-13,
-38,
-12,
0,
1,
25,
9,
0,
-71,
-34,
-11,
32,
24,
-70,
36,
-14,
-17,
0,
32,
-4,
-2,
-12,
-5,
4,
24,
-20,
-37,
-19,
3,
-38,
-18,
-5,
18,
16,
-23,
7,
-1,
18,
42,
42,
-42,
16,
51,
4,
-69,
43,
0,
6,
-48,
38,
32,
29,
35,
44,
-18,
-3,
-16,
-17,
7,
-27,
-7,
-20,
-2,
38,
-14,
15,
29,
53,
10,
-1,
-39,
65,
11,
19,
27,
-29,
-31,
17,
-6,
-12,
-30,
45,
36,
0,
-36,
69,
15,
-4,
-29,
-16,
-10,
-20,
-16,
34,
36,
52,
20,
-31,
33,
-65,
15,
-7,
-20,
28,
-18,
28,
-22,
-40,
15,
30,
3,
0,
13,
-11,
23,
-45,
-32,
0,
-21,
17,
3,
-36,
47,
-25,
33,
-22,
41,
-6,
49,
-65,
13,
-4,
24,
-39,
9,
-8,
27,
-34,
-29,
-21,
13,
-43,
-51,
-33,
-22,
-49,
8,
34,
-34,
-72,
-35,
-62,
-22,
-47,
-12,
-6,
-4,
-8,
-2,
-28,
-21,
12,
43,
-23,
-16,
6,
-27,
-2,
35,
-50,
59,
55,
-31,
24,
45,
18,
26,
-38,
1,
-13,
19,
-30,
-16,
-3,
-14,
-41,
-4,
19,
-30,
-24,
8,
20,
26,
-5,
80,
24,
-23,
-27,
-28,
-5,
-41,
-2,
41,
20,
9,
-18,
-26,
-17,
0,
0,
-64,
6,
26,
32,
-14,
-43,
-66,
23,
-28,
49,
0,
-7,
-42,
68,
-61,
29,
6,
-31,
21,
10,
-10,
30,
100,
5,
-23,
23,
72,
-66,
-38,
-1,
0,
13,
8,
37,
50,
3,
-16,
-29,
-14,
6,
26,
15,
-24,
24,
-46,
36,
-43,
-34,
2,
-27,
48,
26,
-10,
43,
14,
-27,
-26,
62,
30,
-50,
-5,
2,
0,
-35,
-40,
14,
31,
41,
15,
65,
7,
59,
-4,
32,
49,
4,
0,
-16,
-24,
-25,
-23,
-7,
-6,
-34,
-8,
6,
0,
-38,
17,
-21,
-36,
58,
-55,
29,
6,
-4,
-59,
43,
-2,
3,
-34,
-23,
-17,
-19,
7,
-2,
14,
47,
31,
-42,
11,
-17,
3,
23,
-50,
-8,
-39,
-12,
-24,
-48,
-26,
11,
38,
-48,
48,
53,
11,
-25,
31,
-3,
9,
-5,
-10,
8,
8,
1,
-7,
14,
30,
-24,
16,
3,
-27,
-19,
17,
-2,
-12,
-24,
-26,
-5,
27,
-16,
2,
27,
21,
20,
-14,
-33,
56,
12,
-34,
7,
14,
1,
28,
-17,
-16,
-7,
-55,
-28,
-1,
-7,
11,
15,
29,
13,
-23,
-26,
-19,
43,
39,
-47,
6,
14,
-21,
5,
-29,
74,
10,
-47,
-48,
48,
0,
-21,
-29,
-10,
16,
88,
49,
26,
-37,
46,
32,
85,
-9,
-11,
-54,
-3,
-63,
-18,
-11,
6,
-12,
46,
32,
40,
-44,
22,
-32,
30,
21,
-2,
-38,
-3,
20,
-5,
-21,
-20,
35,
0,
23,
21,
26,
-23,
-33,
-16,
39,
-61,
-6,
0,
-12,
6,
0,
42,
6
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
Appellant Larry L. Phillips appeals from an order and judgment of the District Court granting a motion by the Montana Education Association (herein referred to as MEA); and John Board, C. D. “Bud” Beagle, Maurice Hickey, Noel Furlong, and Betty Lockey (herein referred to as individual defendants) for summary judgment.
Phillips was hired by the MEA on April 2, 1974, and commenced employment on July 1, 1974. The terms of his employment as executive secretary were specified in a written, two-year contract. On December 30, 1974, the Board of Directors of the MEA terminated Phillips’ contract and employment as of December 30, 1974.
On January 28, 1975, Phillips filed a complaint against the MEA alleging breach of employment contract and failure to give the requisite three months notice of termination. On March 19, 1976, Phillips filed an amended complaint and alleged five counts which included the earlier claims, and added claims for slander, malicious inducement by agents of the MEA to breach the employment contract, and that the MEA had blacklisted him from further employment. The amended complaint added eight John and Mary Does as defendants.
The MEA made a number of motions to dismiss, strike, to make more definite statements and to dismiss defendants. In an order dated November 8, 1976, the District Court dismissed the slander count for failure to state a claim, and struck Phillips’ claim for punitive damages, penalties and attorney fees.
Phillips appealed to this Court, and the MEA filed a motion to dismiss the appeal on the grounds that the order was not appeal-able. This Court granted the MEA’s motion to dismiss the appeal, and the cause was remanded to the District Court.
On August 1, 1977, the MEA deposed Phillips and he was unable to provide information concerning the alleged malicious inducement of breach of contract; and three days after that deposition, the MEA served interrogatories on Phillips seeking answers concerning the alleged malicious inducement of breach of contract. Phillips did not answer the interrogatories, and on April 3, 1978, the MEA filed a motion to compel answers. A hearing was held on May 2, 1978, and the District Court ordered Phillips to answer the interrogatories.
Phillips did not answer the interrogatories within the time ordered by the District Court; and on August 31, 1978, the MEA again filed a motion to dismiss the amended complaint. A hearing was held on September 26, 1978, and the District Court found that Phillips had violated the court order by not answering the interrog-aties; and ordered that the amended complaint would be dismissed with prejudice if Phillips did not answer the interrogatories by October 13, 1978. The District Court further found that Phillips had failed to comply with a previous court order by not having filed a second amended complaint, and ordered that Phillips’ complaint would be dismissed with prejudice if Phillips did not file a second amended complaint by October 13, 1978. Phillips filed a second amended complaint and answers to the interrogatories on October 13, 1978.
On November 16, 1978, the MEA and the individual defendants moved for summary judgment on count two, the alleged malicious inducement of breach of contract; and count three, the alleged MEA blacklisting of Phillips from further employment, of Phillips’ second amended complaint.
The motion was briefed and a hearing held; and on April 4, 1979, the District Court granted the motion for summary judgment. On April 10, 1979, final judgment was entered pursuant to Rule 54(b), Mont.R.Civ.P. The judgment specifically stated that Phillips was entitled to proceed with counts one and four of the second amended complaint concerning the cause of action for breach of contract. Phillips has not appealed the granting of summary judgment on count three; therefore, Phillips’ appeal is limited to the granting of summary judgment on count two.
The following issue is raised by Phillips for our consideration on appeal:
Whether the District Court erred in granting summary judgment on count two of the second amended complaint wherein Phillips alleged that the individual defendants were personally liable for the tort of malicious inducement of breach of contract.
Causes of action for interference with contract rights have long been recognized in Montana. Pelton v. Markegard (1978), 179 Mont. 102, 586 P.2d 306; Taylor v. Anaconda Federal Credit Union (1976), 170 Mont. 51, 550 P.2d 151; Quinlivan v. Brown Oil Co. (1934), 96 Mont. 147, 29 P.2d 374; Burden v. Elling State Bank (1926), 76 Mont. 24, 245 P. 958; Simonsen v. Barth (1922), 64 Mont. 95, 208 P. 938. See also W. Prosser, The Law of Torts, § 129 at 927 (4th Ed. 1975). A complaint seeking damages for inducing a breach of contract is sufficient where it alleges (1) that a contract was entered into, (2) that its performance was refused, (3) that such refusal was induced by the unlawful and malicious acts of the defendant, and (4) that damages have resulted to the plaintiff. Pelton v. Markegard, supra, 586 P.2d at 308; Burden v. Elling State Bank, supra, 245 P. at 959.
The law, independent of the contract, imposes upon strangers to a contract the duty not to interfere with its performance. The violation of this duty is a tort, the remedy for such interference is by action in tort. Burden v. Elling State Bank, supra, 245 P. at 959. One type of interference with economic relations has been marked out rather definitely by the courts, and regarded as a separate tort, under the name of inducing breach of contract.
The parties do not dispute the fact that Phillips has a cause of action against the corporation for the alleged breach of contract, and this cause of action is pending in District Court. The fact that there is an available action against the party who breaks the contract is no defense to the one who induces the breach, since the two are joint wrongdoers, and each is liable for the loss. Prosser, supra, § 129 at 948. In terms of legal theory, it is therefore possible to bring suit for breach of contract and also to bring suit for the tort of inducing breach of contract.
The specific issue of whether agents, employees, officers and directors of a corporation may be held individually liable for the tort of malicious inducement of breach of an employment contract is one of first impression in Montana.
Phillips contends that the MEA and the individual defendants are in fact joint tortfeasors. He argues that the tort of malicious inducement of breach of contract is impugnable individually to the individual defendants who sought to, and took steps to see that the corporation did breach the employment contract. Phillips further contends that individual officers cannot, with impunity, commit torts and be allowed to hide behind the corporate veil in order to escape accountability for those torts. The individual defendants contend that officers, directors and employees are the only persons who can act on behalf of a corporation; and that no director or officer would ever make a corporate decision involving the performance of a contract without fear of being sued for the tort of maliciously inducing the corporation to breach a corporate obligation. The individual defendants further contend that corporations simply could not function if the officers, directors and employees were to be exposed to individual liability on every occasion when the corporation failed to perform on a contract.
Given the intention to interfere with a contract, liability usually will turn upon the utlimate purpose or objective which the defendant is seeking to advance. Generally, an intentional interference with the existing contractual relations of another is prima facie sufficient for liability and the burden of proving that it is “justified” rests upon the defendant. The defendant may show that the interference is privileged by reason of the interests furthered by his conduct, but the burden rests upon him to do so. The question of privilege must be considered in the light of the means adopted and the relations between the parties. Prosser, supra, § 129 at 942-43.
To determine whether interference with contractual relations is justified, public policy considerations must be examined. Justification or privilege constitutes the primary defense to an action for interference. Johnson v. Radde (1927), 293 Minn. 409, 196 N.W.2d 478; Estes, Expanding Horizons In The Law of Torts — Tortious Interference, 23 Drake L.Rev. 341, 358 (1974).
One public policy consideration is that the officers, directors, employees and agents of a corporation must be shielded from personal liability for acts taken on behalf of the corporation, including the breaching of contracts in furtherance of corporate goals, policies, and business interests. This corporate shield is needed in order to allow corporations to effectively function. A competing public policy consideration is that individual corporate agents, employees, directors and officers should not be allowed to commit torts at will, and then be allowed to hide behind the corporate veil in order to escape accountability for those torts.
Corporate officers or directors are privileged to interfere with or induce breach of the corporation’s contracts or business relations with others as long as their actions are in good faith and for the best interests of the corporation. Wilson v. McClenny (1964), 262 N.C. 121, 136 S.E.2d 569; Allison v. American Airlines (N.D.Okla.1953), 112 F.Supp. 37. Where an officer or director acts against the best interests of the corporation, acts for his own pecuniary benefit, or with the intent to harm the plaintiff, he is personally liable. Pennington Trap Rock Co. v. Pennington Quarry Co. (1944), 22 N.J.Misc. 318, 38 A.2d 869; A. S. Rampell, Inc. v. Hyster Company (1957), 3 N.Y.2d 369, 165 N.Y.S.2d 475, 144 N.E.2d 371; W. P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill.App.2d 404, 152 N.E.2d 615; Stell Manufacturing Corp. v. Century Industries, Inc. (1961), 15 App.Div.2d 87, 221 N.Y.S.2d 528.
In Wilson v. McClenny, supra, Wilson entered into a preincor-poration agreement with several individuals who later became directors of a corporation called Gateway Life Insurance Company. Under the agreement, Wilson became president of the corporation. Later, because of a drinking problem, Wilson was ousted as president during a directors’ meeting. Wilson filed an action against the individual defendants for a breach of the preincorporation agreement and for tortious interference with his contractual rights with the corporation.
In Wilson, the court found that the acts of the directors were found to have been for the benefit of the corporation, that Wilson offered no evidence to the contrary, and that there were no individual or separate torts by the individual defendants distinguishable for their acts on the corporation’s behalf. The court found that Wilson had failed to state a claim against the individual defendants.
We hold that the corporate veil should not be utilized as a protective device by those who employ corporate power or authori ty to serve their own ends. Tort liability for the inducement of breach of contract should be imposed when a corporate agent, employee, officer or director induces a breach of contract for private benefit, or because of personal feelings and purposes relative to a third party. The privilege of limited liability should be applicable in those situations where actions are motivated and taken in the furtherance of corporate purposes, policies and interests.
In the instant case, the record discloses that Phillips wrote a memorandum to the MEA Board of Directors in reference to terminating the employment of certain employees. A board member and some of the employees discussed the Phillips memorandum, and then some of those individuals wrote a letter characterizing the function of the staff administration. They also requested a meeting with the Board of Directors, exclusive of Phillips. The District Court concluded, and we agree, that the actions taken by the individual defendants were within the scope of their employment, designed without malice, and in the furtherance of corporate interests.
Phillips has failed to show that the actions taken by the individual defendants were not taken in furtherance of corporate purposes and interests. Therefore, the privilege of limited liability applies in the instant case, and the individual defendants are shielded from personal liability.
The record shows the absence of any genuine issue of material fact; therefore, the order and judgment of the District Court granting the individual defendants’ motion for summary judgment on count two, the tort cause of action for the malicious inducement of breach of contract is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and SHEEHY concur.
|
[
-24,
-63,
-23,
1,
-25,
-25,
-18,
9,
-39,
29,
-5,
25,
19,
-35,
-36,
-23,
39,
-13,
24,
18,
28,
-28,
-3,
24,
3,
-13,
-12,
32,
-13,
-27,
-12,
62,
57,
-64,
-15,
-15,
1,
-29,
-5,
-81,
53,
-4,
-41,
-22,
11,
-11,
24,
9,
44,
-28,
8,
58,
4,
21,
-2,
-34,
34,
-55,
-66,
6,
-51,
43,
47,
30,
12,
-52,
28,
48,
17,
-23,
0,
49,
18,
-6,
3,
-37,
39,
-2,
-21,
11,
-2,
-1,
-26,
-26,
2,
-8,
-15,
1,
-27,
55,
-20,
-37,
15,
30,
4,
56,
27,
-43,
36,
1,
-56,
22,
-40,
-16,
42,
-45,
25,
41,
25,
34,
-8,
35,
11,
-40,
-43,
16,
34,
53,
-12,
-3,
13,
65,
-29,
32,
2,
-10,
21,
6,
5,
50,
-39,
0,
39,
-8,
-12,
37,
0,
-18,
68,
-36,
7,
-8,
-33,
-19,
-17,
15,
-33,
-12,
-11,
-64,
-48,
-36,
16,
40,
49,
-63,
54,
-23,
43,
-48,
31,
-30,
19,
14,
18,
38,
11,
-5,
23,
-11,
0,
-15,
4,
-16,
10,
16,
-17,
70,
-19,
-14,
-38,
-8,
-18,
-51,
13,
-4,
38,
34,
3,
27,
-9,
-42,
-12,
1,
-7,
-3,
4,
51,
-47,
-50,
47,
-27,
42,
43,
0,
29,
9,
5,
17,
53,
33,
-4,
23,
-2,
-53,
-27,
-19,
44,
-5,
37,
21,
-6,
-72,
9,
-36,
-35,
-5,
12,
-28,
-8,
-47,
15,
49,
15,
9,
41,
-12,
20,
17,
-8,
-48,
-8,
7,
39,
35,
-23,
-25,
-38,
25,
0,
-14,
44,
66,
20,
26,
6,
0,
9,
-18,
-64,
22,
-28,
-14,
17,
-12,
12,
4,
9,
31,
1,
18,
13,
46,
19,
2,
-56,
-36,
-9,
47,
-78,
-30,
-40,
-41,
0,
14,
-32,
79,
40,
-33,
-31,
-8,
-38,
6,
3,
60,
-39,
35,
11,
-22,
-8,
-55,
2,
-11,
26,
2,
52,
-32,
21,
27,
28,
1,
-20,
-8,
-49,
23,
-50,
-17,
-22,
-12,
-57,
5,
16,
77,
-8,
-19,
21,
-23,
19,
30,
-22,
45,
45,
-29,
30,
8,
2,
43,
41,
1,
7,
11,
28,
-27,
8,
-91,
19,
-4,
-3,
0,
-28,
15,
-13,
21,
29,
-17,
66,
12,
2,
-2,
14,
-63,
-24,
-54,
26,
11,
65,
-30,
-22,
-21,
-36,
-30,
14,
48,
7,
11,
14,
86,
-31,
-15,
30,
-12,
-8,
-40,
-30,
-2,
-15,
10,
2,
25,
8,
-52,
-19,
0,
49,
20,
-3,
41,
-24,
-4,
-2,
22,
-27,
14,
-16,
37,
-27,
-6,
-43,
-41,
-1,
-8,
36,
-41,
20,
3,
-38,
44,
2,
21,
22,
20,
-6,
54,
-24,
-5,
-47,
21,
1,
-26,
-12,
19,
4,
21,
-63,
-36,
-17,
2,
-37,
-45,
25,
24,
24,
0,
-8,
40,
-38,
0,
-51,
-14,
-29,
-7,
51,
53,
46,
-2,
17,
-17,
-63,
17,
16,
-23,
-1,
32,
-14,
10,
5,
37,
-5,
-34,
15,
-81,
39,
-39,
40,
1,
21,
-22,
-6,
3,
22,
16,
-45,
23,
-21,
19,
47,
-4,
-30,
-17,
34,
45,
-3,
42,
-42,
-30,
-8,
30,
-26,
6,
-3,
-16,
-16,
49,
30,
-25,
-82,
-29,
13,
-15,
43,
17,
4,
33,
34,
25,
39,
-2,
9,
-44,
6,
34,
70,
23,
-10,
-58,
0,
-36,
-21,
0,
-49,
27,
62,
53,
-83,
26,
14,
42,
59,
2,
-24,
7,
-40,
8,
25,
10,
-34,
-16,
-16,
36,
24,
93,
-8,
7,
-14,
-36,
4,
14,
88,
3,
48,
10,
32,
-32,
25,
-6,
44,
-69,
-5,
27,
30,
-13,
1,
0,
16,
4,
16,
52,
9,
-7,
11,
16,
-8,
10,
9,
-65,
-72,
70,
17,
-21,
4,
-13,
-102,
-57,
7,
42,
21,
-53,
-38,
-81,
24,
-11,
11,
-24,
29,
16,
13,
47,
21,
10,
-22,
-4,
-14,
12,
-16,
-47,
-20,
-24,
-1,
56,
28,
1,
7,
30,
-39,
-12,
62,
-30,
-19,
19,
-29,
0,
-42,
-27,
-27,
-19,
-68,
31,
-27,
5,
-22,
28,
-1,
6,
14,
-3,
-15,
-16,
14,
18,
13,
11,
-30,
26,
-31,
-56,
56,
35,
-33,
-38,
28,
2,
8,
-24,
-30,
29,
-16,
37,
20,
29,
-21,
0,
44,
-7,
50,
28,
-9,
31,
-2,
41,
-19,
-13,
-22,
-32,
27,
-5,
-16,
32,
5,
-56,
10,
46,
71,
12,
-43,
-28,
-14,
6,
-12,
-9,
-71,
0,
-7,
-19,
27,
-62,
53,
-40,
-13,
-9,
23,
0,
13,
-16,
71,
-8,
27,
32,
12,
-34,
-13,
-23,
52,
-16,
-12,
-12,
20,
20,
14,
18,
-13,
4,
44,
0,
-28,
-35,
-34,
-11,
-27,
-12,
30,
29,
0,
-23,
-9,
-9,
15,
-8,
14,
-41,
-86,
14,
-42,
25,
-15,
-22,
-22,
-12,
-38,
-45,
10,
-6,
-12,
-27,
-13,
34,
-9,
-27,
-24,
31,
-26,
12,
33,
-35,
31,
-8,
-13,
13,
42,
-83,
-29,
1,
36,
-75,
17,
11,
-5,
4,
43,
37,
12,
26,
-1,
60,
-67,
4,
89,
43,
3,
-67,
-25,
25,
-1,
-16,
65,
-2,
24,
-13,
-10,
1,
1,
-34,
-8,
-11,
-14,
-4,
-23,
50,
7,
-31,
-45,
1,
-49,
-9,
59,
-11,
17,
-14,
38,
-18,
8,
-20,
6,
0,
0,
-13,
-20,
-42,
11,
9,
-17,
4,
-31,
9,
-18,
29,
48,
19,
-24,
-9,
-12,
9,
14,
-27,
36,
25,
4,
4,
-113,
19,
0,
38,
27,
-53,
3,
0,
41,
-30,
-36,
40,
62,
25,
-12,
31,
21,
-29,
-56,
13,
-40,
79,
1,
-54,
18,
39,
-38,
36,
-25,
33,
-29,
27,
-8,
37,
-4,
-53,
-3,
-20,
17,
45,
-75,
-17,
17,
18,
13,
-3,
25,
-30,
25,
21,
-22,
0,
32,
31,
-7,
-7,
-45,
-32,
19,
-57,
2,
68,
29,
73,
-20,
-24,
-10,
31,
-29,
5,
-16,
-7,
21,
43,
6,
44,
-57,
12,
7,
-23,
17,
-61,
16,
14,
-42,
37,
10,
12,
-2,
-22,
-52,
13,
20,
6,
-2,
-2,
15,
-39,
83,
-56,
-9,
48,
-51,
-26,
0,
0,
-43,
-17,
-20,
-6,
-39,
-33,
-23,
23,
3,
31,
-50,
23,
10,
0,
-17,
-35,
-21,
26,
-6,
1,
25,
11,
-44,
-9,
-41,
27,
-3,
34,
8,
17,
-31,
26,
26,
2,
-12,
41,
-30,
66,
-4,
-41,
-9,
-55,
46,
10,
-32,
20,
14,
15,
-15,
-16,
-44,
35,
1,
-54,
-36,
-52,
7,
-34,
-21,
-39,
-5
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This is an appeal from a judgment entered in the District Court of the First Judicial District, in and for the County of Lewis and Clark, the Honorable Gordon R. Bennett presiding.
Defendant is a resident of Whitefish, Montana. He has been employed by Teleprompter, Inc., for the past fifteen years working as a microwave engineer. In October 1976, defendant was informed by the Montana Department of Revenue that the State had not received income tax returns from him for the years 1973, 1974, 1975, and 1976. In those years, the Department had received information indicating that defendant had earned the following incomes:
1973 — $10,400.00; 1974 — $11,017.50; 1975 — $11,020.80; 1976 — $10,976.56. Enclosed with the Department’s letter to defendant were detailed income tax forms and instructions. Defendant responded to the letter by requesting copies of Montana code sections regarding the collection and payment of taxes and the Montana Constitution. The Department, in turn, responded to defendant s request by indicating that certain copying fees had to be enclosed for the copying of the requested materials. Defendant again wrote a letter to the Department repeating his request. On November 21, 1976, five days after defendant’s second letter, defendant mailed incomplete tax returns for the years 1973, 1974, and 1975 to the Department with an accompanying letter. The letter stated:
“I have taken the Fifth Amendment stand on my Federal Tax Returns and since the Montana Department of Revenue and the Federal Government work hand in hand I cannot give you any information without you passing it on to the I.R.S. Therefore, I am forced to do the same with the Montana Department of Revenue, because any information that may tend to incriminate me that is given to you will be passed on to the I.R.S. and may incriminate me through a third party.”
In the same letter, defendant requested immunity from prosecution and added that, “if you do not agree with me and should decide to prosecute me, I will make a good faith challenge in a court of law before a jury of my peers.” Defendant also asked the State to schedule a conference to discuss his taxes.
Defendant filed an improper tax return on August 16, 1977, for the calendar year 1976.
On August 3, 1977, defendant was charged with four counts of “intentionally failing to make or render a return or to supply information or both” under section 84-4924(3) and (4), R.C.M.1947,now section 15-30-321(3) and (4), MCA. A jury trial began on February 21, 1978, and lasted three days. At the end of the trial, the jury deliberated and returned a verdict of guilty on all four counts. Defendant moved for a new trial, but the motion was denied. On April 19, 1978, the District Court entered judgment of conviction, and defendant now appeals.
Twelve issues are raised for our consideration upon appeal. We find, however, that it is only necessary to discuss eleven of the issues because of the disposition of this case. The issues raised by defendant are:
1. Whether the District Court erred in instructing the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.”
2. Whether prosecution for the charges contained in the Information was barred by the statute of limitations.
3. Whether the District Court erred in failing to admit defendant’s withholding statement.
4. Whether the prosecuting attorneys were properly appointed special deputy county attorneys.
5. Whether the District Court erred in denying defendant’s motion for substitution of judge.
6. Whether the District Court erred in limiting defendant’s voir dire examination of the jury.
7. Whether the District Court erred in excluding the testimony of William Koerner as an expert witness for defendant.
8. Whether the District Court erred in denying defendant’s motion for a change of venue.
9. Whether defendant’s assertion of his Fifth Amendment privilege was a defense to the charges contained in the information.
10. Whether the District Court erred in denying defendant’s instructions.
11. Whether defendant, proceeding pro se, is entitled to have rules of law and procedure applied less strictly against him.
12. Whether the evidence presented clearly preponderated against the findings of the jury.
At the outset, it is important to clear up any confusion that may exist with regard to the charges brought by the State in this case. Here, prosecution was commenced by the State against defendant for failure to file an income tax return or supply information, or both. The Information states that defendant is charged with four counts of “intentionally failing to make or render a return or to supply information or both.” The prosecution was not commenced for any failure to pay taxes. What the prosecution stems from, rather, is the filing of an incomplete or impropet return. Defendant here submitted signed returns with asterisks inserted on several lines, accompanied by a blanket assertion of his Fifth Amendment privilege. According to well-established legal precedent, returns which merely contain an individual’s social security number, name, and signature and which are accompanied by a blanket Fifth Amendment assertion of a privilege are not properly filed returns as provided by law. See United States v. Porth (10th Cir. 1970), 426 F.2d 519, cert. denied 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970); United States v. Jordan (7th Cir. 1975), 508 F.2d 750, cert. denied 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1976); United States v. Pryor (8th Cir. 1978), 574 F.2d 440. This case, then, concerns the failure to file a proper return.
At his first issue, defendant contends that the District Court erred in instructing the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” This instruction, commonly referred to as the “Sandstrom instruction,” has been considered by this Court in several recent cases. The United States Supreme Court declared it to be unconstitutional because it has, in the minds of reasonable jurors, conclusive or persuasion-shifting ef* feet. Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.
The State contends that we should not consider defendant’s first issue because defendant did not object to the giving of the challenged instruction at trial. The State submits that the issue cannot now be raised for the first time on appeal. Although the State’s point is well taken, we note that an appellate court may, in some circumstances, raise plain error upon appeal. We find that the effect of the Sandstrom instruction deserves considerations, especially because defendant appeared pro se in this matter.
The test for determining error in instructions similar or identical to those involved in Sandstrom was enunciated by the United States Supreme Court as analyzing the “way in which a reasonable juror could have interpreted the instruction.” This, of course, involves assessing the impact of the challenged instruction in the context of other instructions given in the case. Several in structions were given in this case with respect to intent and the proof thereof. Instruction No. 11 indicated that intent was a necessary element of the offense to be proven by the State beyond a reasonable doubt. Instruction No. 1 stated that defendant was afforded a presumption of innocence, and Instruction No. 2 required that the State prove every element of the offense beyond a reasonable doubt. Instruction No. 7 was identical to the wording of the so-called “Sandstrom instruction” and afforded the State a presumption of intent. “Presumption” was defined in Instruction No. 3, which stated:
“Instruction No. 3.- A presumption is a deduction which the law expressly directs to be made from particular facts. Unless declared by law to be conclusive, it may be controverted by other evidence, direct or circumstantial, but unless so controverted the jury is bound to find in accordance with the presumption.
“In this regard, you are reminded in a criminal case, the defendant is presumed innocent until the contrary is proven beyond a reasonable doubt. This presumption carries the force of law and can only be controverted by evidence which leaves the minds of jurors in that condition that they can say that they feel an abiding conviction, to a moral certainty, of the truth of the charge.”
Instruction Nos. 9 and 10 also permitted a finding of intent through interference:
“Instruction No. 9.- The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity. The intent need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence and warranting such inference beyond a reasonable doubt.
“Instruction No. 10; The element of intent in every contested case must necessarily be determined from facts and circumstances of the particular case — this for the reason that criminal intent, being a state of mind, is rarely susceptible of direct or positive proof and there must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.”
Analyzing these instructions in the way or ways a reasonable juror could have interpreted them, we believe two possible interpretations might have been reached — one permissible and the other impermissible.
On one hand, a reasonable juror could have understood the instructions as requiring the State to fully carry its burden. The element of intent could have been properly and permissibly found through inference as stated in Instruction Nos. 9 and 10. There would have been no conclusive or persuasion-shifting effect. Interpreting the instructions as permissible, the jurors would have been free to accept or reject the instructions without allocating any additional burden to the defendant in coming forward with further proof. See State v. Coleman (1979), 177 Mont. 1, 579 P.2d 732; State v. Bad Horse (1980), 185 Mont. 507, 605 P.2d 1113.
On the other hand, a reasonable juror could have also interpreted the instructions as mandatory. In particular, the jurors could have interpreted Instruction No. 7 as allowing for no discretion and directing the jurors to find the element of intent. State v. Sandstrom (1979), 184 Mont. 391, 603 P.2d 244. This interpretation would have had an impermissible effect and might have been easily reached considering the context of Instruction No. 3. Where an impermissible interpretation could have been gleaned from the instructions by a reasonable juror, we cannot declare beyond a reasonable doubt that the error complained of did not contribute to the verdict.
The State urges that, even if there was error in the instructions, the error was harmless. Given the nature of evidence presented in this case, however, we find the application of the doctrine of harmless constitutional error to be unpersuasive. There is no overwhelming evidence here that is of the convicting quality or character as that present in State v. Hamilton (1980), 185 Mont. 522, 605 P.2d 1121, and State v. McKenzie (1980), 186 Mont. 474, 608 P.2d 428.
Having determined the error to be prejudicial and harmful, this case is remanded to the District Court for retrial consistent with the following portions of this opinion and the guidelines enumerated by the United States Supreme Court in Sandstrom.
As his second issue, defendant contends that any prosecution for the offenses charged in the Information was barred by the statute of limitations. Defendant was charged under section 84-4924(3) and (4), R.C.M. 1947, now section 15-30-321(3) and (4), MCA, for failure to file complete income tax returns for the years 1973, 1974, 1975 and 1976. Each count was a misdemeanor punishable by a fine not to exceed $1,000 or one year imprisonment, or both.
Defendant submits that section 45-l-205(2)(b), MCA, is the statute of limitation applicable to each of the four counts. The statute sets forth a one year statute of limitation for misdemeanors. Defendant contends that the State is barred from prosecuting any count where prosecution commenced on August 3, 1977, more than one year from the date upon which the last offense was committed.
We agree.
We find that section 15-30-322, MCA, is not the controlling statute of limitations for the offenses charged in this case. The language “[e]xcept as otherwise provided by law” controls as to when a misdemeanor is removed from the bar of section 45-1-205 (2)(b), MCA. Section 15-30-322, MCA, specifically applies only to actions by the attorney general to recover due taxes, penalties and interest “at any time.” This is not an action to recover unpaid taxes. It is an action to create criminal responsibility for not filing a proper income tax return. The authorization extended to the attorney general under section 15-30-322, MCA, is for a civil action to collect governmental revenue. An open right in the State to collect its revenue “at any time” in a civil action should not be extended to cover a criminal matter. Parenthetically, we note that the legislature has now provided a five-year statute of limitations for this type of criminal proseuction, section 15-30-324, MCA, adopted in 1979.
Defendant’s third issue is whether the court erred in failing to admit his withholding statement. Defendant apparently contends that the statement was relevant to show that taxes had been paid and withheld. It is important to reiterate here that this is not a prosecution stemming from a failure to pay taxes. Rather, defendant was charged and found guilty of failure to file a proper return. The fact that an individual has federal and state income taxes withheld from his gross income is not a sufficient reason to abate the requirement of filing a proper, completed Montana Individual Income Tax Return. The filing requirement is contained in section 15-30-142, MCA. This statute, coupled with section 15-30-321(3), MCA, sets forth the criminal penalties for not filing, and no mention is made concerning withholding tax.
In the presentation of the State’s case, evidence of documents pertaining to defendant’s employment was presented to show defendant’s gross income for the years in question. Defendant argues that it is the law in Montana that, when part of a transaction is proven, the whole is admissible. Rule 106, Mont.R.Evid. However, in this case, the pay records referred to were used to develop the defendant’s income, and references to the withholding of taxes were peripheral to the main issue. The offering of the withholding statements by defendant were irrelevant to the issue of whether or not he filed, returns for the years in question.
Defendant relies on Varn v. Butte Electric Ry. Co. (1926), 77 Mont. 124, 249 P. 1070, as authority for allowing the admission of withholding statements. The issue in Varn was whether an entire ordinance governing street cars was admissible. The Court there held that, when one part of an ordinance was admitted into evidence, the trial court should have allowed the entire ordinance to be admitted. Varn, however, is factually distinguishable from the situation here. Here, defendant’s withholding statements did not go to the intent needed for failure to file his returns. In fact, the evidence had no probative value on the charge in the case at bar. The admission of such evidence could well have distracted the jury from the charge at hand. See United States v. Gorman (7th Cir. 1968), 393 F.2d 209, cert. denied 393 U.S. 832, 89 S.Ct. 102, 21 L.Ed.2d 103, reh. denied 395 U.S. 917, 89 S.Ct. 1738, 23 L.Ed.2d 231. We find no error in the court’s handling of this issue.
Defendant’s next issue is whether the attorneys who prosecuted this action, Ann Smoyer and Robert W. Corcoran, were properly appointed special deputy county attorneys in this matter. Defendant contends that the appointment of Ms. Smoyer and Mr. Corcoran violated section 7-4-2703, MCA. That statute provides thát a county attorney of a first or second class county can only appoint one chief deputy and one deputy county attorney. Defendant argues that, because Lewis and Clark County already had such number of deputies, Ms. Smoyer and Mr. Corcoran were improperly appointed here.
We find, however, that there is ample authority to support the fact that the attorneys acted under proper and lawful authority to prosecute this action. Defendant submits that section 7-4-2703, MCA, establishes the maximum number of deputy county attorneys allowed by law. An examination of other statutes and cases, however, reveals otherwise. Section 7-4-2401, MCA, provides for the appointment of such additional deputy county attorneys as may be reasonably necessary to discharge the duties of the office. There is also early authority in Montana, under a statutory predecessor to section 7-4-2703, MCA, which recognizes the authority of the county attorney to appoint additional deputies in certain circumstances. State v. Crouch (1924), 70 Mont. 551, 227 P. 818. Independent of this ground, the attorney general is given the authority under section 15-30-322, MCA, to recover the amount of any taxes, penalties and interest under the revenue laws of this State. Here, the file reflects that Ms. Smoyer and Mr. Corcoran were not only appointed by Lewis and Clark County Attorney Charles Gravely as deputy county attorneys, but were also appointed by Attorney General Mike Greely as assistant attorney generals. That be ing the case, they had lawful authority to prosecute the matter here.
Defendant’s fifth issue is whether the court erred in denying his motion for substitution of judge. Defendant filed an affidavit of disqualification on October 11, 1977, in which he alleged that the Honorable Gordon R. Bennett was biased and prejudiced. The filing of the affidavit came approximately two months after the information was filed. The affidavit was denied without a hearing on October 13, 1977, because it was not filed, pursuant to a rule of this Court, within ten days of the time Judge Bennett assumed jurisdiction of the case. Defendant argues that the motion for disqualification should have been granted because Judge Bennett had a duty to inform defendant of this Court’s rule concerning the disqualification and substitution of judges. That rule is codified in section 3-1-801, MCA, and provides in pertinent part:
“. . . Whenever a judge is assigned a case for 10 consecutive days and the attorneys of record on both sides have knowledge of the assignment for that period of time, and if during this time no motion for substitution of a judge is filed against him, all rights to move for substitution of a judge shall be deemed waived by all parties unless the presiding judge disqualified himself thereafter in which case the right to move for substitution of a new judge is reinstated and the 10 day period starts running anew . . .”
Under the above rule, if the ten-day-period does not expire, a party in a criminal case is automatically entitled to one substitution of a judge. When the period expires, however, a judge may only be disqualified for cause under paragraph 6 of section 3-1-801, MCA, which provides:
“Whenever a party to any proceeding in any court makes and files a timely and sufficient affidavit that a judge or justice of the peace, before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge or justice of the peace shall proceed no further therein, but another judge or justice of the peace shall be assigned to hear such disqualification proceeding by the chief justice of the Supreme Court, or by a district judge, if the affidavit is against a justice of the peace, police or municipal court judge. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than 20 days before the original date of trial, or good cause shall be shown for failure to file it within such time. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”
Here, defendant chose to act as his own counsel. There was no duty on the part of Judge Bennett to constantly keep in touch with defendant during the preparation of this case and to tell him what the law is concerning disqualifications. Defendant appeared before Judge Bennett on August 18, 1977, for his initial appearance. He had filed many pleadings concerning venue which had been disposed of in Judge Bennett’s court. He was well aware that Judge Bennett was presiding and failed to challenge him within the proper time set forth. See In re Petition of Larocque (1961), 139 Mont. 405, 406, 365 P.2d 950; State v. Parker (1973), 161 Mont. 394, 397, 506 P.2d 850. Judge Bennett properly denied the affidavit because it was not timely filed. Paragraph 6 of section 3-1-801, MCA, does not apply because the affidavit was not accompanied by a certificate of good faith.
Defendant’s sixth issue is whether the District Court erred in limiting defendant’s voir dire examination of the jury. Prior to voir dire, the State sought, through a motion in limine, to restrict defendant from inquiring into the religious beliefs of the prospective jurors. In connection with the motion, the court asked the following questions:
“THE COURT: Do you intend in any way to bring up the religious beliefs of the prospective jurors and the witnesses in this case?
“MR. PONCELET: I will not bring up the secular beliefs of the jurors, but, I will bring up, under the First Amendment of the Constitution of the United States, the freedom of belief and how you want to believe, and how you feel with respect to religion.
“THE COURT: That’s fine, but keep people’s secular beliefs out of it. Are you willing to do that?
“MR. PONCELET: Yes.”
It has long been held in this state and other jurisdictions that a trial judge has wide discretion in conducting voir dire. See Aldridge v. United States (1930), 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054; State v. Allison (1948), 122 Mont. 120, 199 P.2d 279; State ex rel. Stephens v. District Court (1976), 170 Mont. 22, 27, 550 P.2d 385. We find that the trial court here properly limited inquiry into the jurors’ belief in God rather than detailed inquiries into the prospective jurors’ secular beliefs. In Yarborough v. United States (1956), 230 F.2d 56, cert. denied 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487, the court held that a defendant prosecuted for tax evasion was not entitled to voir dire jurors on their religious beliefs. See also, 54 A.L.R.2d 1204; United States v. Malinowski (D.C.Pa.1972), 347 F.Supp. 347, 355, aff’d (3rd Cir. 1972), 472 F.2d 850, cert. denied 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693. Given the wide discretion allowed a trial judge, the lack of relevancy of religion to the issues at bar, and the permitted inquiry into the jurors’ general belief in God, defendant’s contention is without merit.
Defendant’s next issue is whether the court committed error in denying the testimony of defendant’s witness, William Koerner. Koerner was offered by defendant as an expert witness on the Constitution. Koerner’s background was that he had taught classes on the United States Constitution and United States Government in public schools and the military and that he had advised two legislators about amendments to be offered and counseled them in general before coming to the legislature.
When defendant had established the foundation to offer Koerner as an expert witness and then proceeded to question him, the following colloquy occurred between defendant and the court:
“MR. PONCELET: Your honor, this person here is an expert on the Constitution and he knows it frontwards and backwards.
“THE COURT: He is an expert on the constitutional law. The jury is not concerned with the views on the constitutional law. The jury is concerned with the facts in this case. That is what they must hear.
“THE COURT: Yes. We will submit the law to the jury when the time comes, and if you are dissatisfied with the way we submit the law, you have your appeal.
“THE COURT: The jury will get the law, the constitutional law, as well as the statutory law, from the Court. You may submit any ideas that you have on the law to the Court at the time that the instructions to the jury are being settled, but we don’t get the law from the testimony of witnesses.”
Defendant argues that the ruling of the trial court was improper and that he should have been allowed his right to present such expert testimony. We find, however, that the trial court’s ruling was correct. The interpretation and application of the United States Constitution was a question of law and not a fact in issue. It was a determination to be made by the trial judge within his statutory powers. Instructing the jury on the law necessary for the jury’s rendering of a verdict in a criminal case is a duty within the exclusive province of the trial judge. Sections 26-1-201 and 46-16-401(4) (b), MCA. The ruling was proper and did not prejudice the substantial rights of defendant. See, United States v. Afflerbach (10th Cir. 1976), 547 F.2d 522, 524, where the court stated:
“The defendant does not agree with the income tax laws nor the general fiscal system of the Government, and he apparently believes this strongly, but this is not a defense.”
- The next issue concerns whether the court erred in denying defendant’s motion for a change of venue. We first note, in connection with the issue, that defendant relies here on a portion of the lower court proceedings for which a transcript has not been submitted to us. The State points out that it is an appellant’s duty to order the entire transcript for the proceedings and argues that the matter is not properly before us and therefore should not be con sidered upon appeal. Section 46-20-302, MCA. However, in view of the fact that defendant appeared pro se in this matter, we will summarily handle the matter by noting that we find no error here. Venue properly lies in Lewis and Clark County, the place where the tax returns were required to be filed by law.
Under section 15-30-144, MCA, income tax returns are required to be filed with the Department of Revenue. The Department, in turn, is required by law to be located in Helena, Montana. Section 2-15-112(l)(i), MCA. Consequently, the offense of failing to file a return or provide information as set out in section 15-30-321(3), MCA, is committed in Lewis and Clark County, where Helena is located. Therefore venue properly lies in Lewis and Clark County. Section 46-3-101(1), MCA, provides that, in all criminal prosecutions, trial shall be in the county where the offense was committed unless otherwise provided by law.
Defendant’s next two issues concern whether the trial court erred in denying defendant’s instructions. In particular, we are concerned with the issues of whether defendant’s assertion of his Fifth Amendment privilege was a proper defense to the charges contained in the Information and whether the court erred in not giving an instruction on defendant’s failure to testify.
As previously noted, defendant submitted signed income tax returns to the Department of Revenue with asterisks inserted on several lines, accompanied with a blanket assertion that he did not have to supply any further information under his Fifth Amendment right. Under well-established precedent, these returns were not properly filed returns as provided by law, and the State, therefore, prosecuted the defendant for failure to provide proper returns. Defendant contends, nevertheless, that the assertion of his Fifth Amendment privilege was a proper defense.
It is well established that the blanket assertion of privilege against self-incrimination in a return is not a proper defense to a prosecution for failure to file a complete return. United States v. Ming (7th Cir. 1972), 466 F.2d 1000, cert. denied 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176, reh. denied 409 U.S. 1051, 93 S.Ct. 514, 34 L.Ed.2d 504; United States v. Afflerbach (10th Cir. 1976), 547 F.2d 522; United States v. Silkman (8th Cir. 1976), 543 F.2d 1218; United States v. Johnson (5th Cir. 1978), 577 F.2d 1304. There is no constitutional privilege granting an individual the right to refuse to answer all questions on an income tax return. Nor can the broad refusal to supply information or answer questions be a proper defense raised at trial. The jury cannot be instructed that a blanket assertion of the Fifth Amendment privilege is a defense entitling the defendant to a complete acquittal of the charges. In Johnson, 577 F.2d at 1310, the court stated;
“Johnson contends that the district court erred in the course of instructing the jury concerning his claim of privilege under the Fifth Amendment on his federal income tax return. He reasons, in effect, that a good faith blanket claim of the Fifth Amendment privilege automatically and completely insulates a taxpayer from prosecution for failure to file a return, and the jury should have been so instructed. This reasoning was rejected over fifty years ago when a unanimous Supreme Court, through Mr. Justice Holmes, held a taxpayer ‘could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government’s blank would bring him into danger of the law.’ [Citation omitted.]
“Johnson errs in his interpretation of his rights under the Fifth Amendment in the context of income tax laws. He contends that his privilege against self-incrimination permits him to ‘stand mute’ and refuse to cooperate at all in the determination of his tax liabil-. ity. He argues that he has a privilege, under the Fifth Amendment; to refuse to disclose any income information since he claims that some of his income was derived from illegal activities. Therefore, he would have us conclude that the ‘return’ which he supplied in 1970 was proper in its blanket assertion of the Fifth Amendment. He also seems to justify his complete failure to file in 1971 under the Fifth Amendment. In addition, he argues that he may forever refuse to cooperate with the courts and the IRS in this matter, and his assertion of the privilege cannot be tested or questioned. Under well-established precedents, Johnson is wrong in these contentions.”
This is not to say, however, that the Fifth Amendment privilege, asserted properly, may not protect the erroneous taxpayer by providing a defense to the prosecution if the jury finds that the claim, though erroneous, was made in good faith. A proper assertion of the privilege is clearly, however, not a blanket assertion:
“Three principles may be distilled from the authorities: (1) the privilege must be claimed specifically in response to particular questions, not merely in a blanket refusal to furnish any information; (2) the claim is to be reviewed by a judicial officer who determines whether the information sought would tend to incriminate; (3) the witness or defendant himself is not the final arbiter of whether or not the information sought would tend to incriminate. [Citations omitted.]” Johnson, 577 F.2d at 1311.
Defendant in this case offered to no one any particular reason for his assertion of a Fifth Amendment privilege. In his tax return, there was no indication as to what source of income he was claiming that privilege. Defendant did not, for example, attempt to comply with the law and list his alleged ill-gotten gains as “miscellaneous” income. See Johnson, supra. Defendant did not indicate anything more on his tax return than a blanket assertion of his Fifth Amendment right to the Department of Revenue. Nor did he claim the privilege in response to particular questions before the judge in chambers at trial, who could have decided if the privilege was applicable. See Johnson, supra; United States v. Wade (1978), 42 AFTR2d 78-6295. Nor did he claim that- the privilege was related to another prosecution for a criminal offense, or even the possibility of criminal prosecution. See Garner v. United States (1976), 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370. Rather, there was simply a broad or blanket assertion of the privilege.
Defendant’s assertion was much like a defendant refusing to give his name at trial, implying that, for some reason, to release such information, would somehow incriminate him or subject him to criminal prosecution. It violates common sense to say that any assertion of this kind would be a defense which would completely insulate an individual from criminal prosecution. To have asserted the privilege properly, defendant should have followed the guidelines of Wade and Johnson. The trial court should have then instructed the jury accordingly. Under the circumstances in which the privilege was asserted here, however, we cannot say that the trial court acted improperly.
Defendant also submits that it was error for the court to deny several other instructions. Defendant submitted approximately forty-eight instructions to the trial court, dealing with everything from what he thought the Constitution said to the actual directions to the jury that they could disregard the court’s instructions and acquit him despite the law given. Many of the statements proposed by the instructions were irrelevant, and the court properly refused them. Two instructions are representative of the instructions generally offered by defendant and illustrate the problem presented to the trial court:
“Defendant’s proposed instruction No. 42. You are instructed that the Declaration of Independence reads in part: ‘He (the King of Great Britain) has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and set out their substance.’
“Defendant’s proposed instruction No. 43. You are instructed that the Declaration of Independence reads in part: ‘He (the King of Great Britain) has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.’ ”
Since the instructions were irrelevant or did not accurately state the law, we find that the trial court’s refusal of defendant’s instructions was proper.
The last issue in this case is whether defendant, in proceeding pro se, is entitled to have the rules and procedures of law applied less strictly against him. To discuss this issue in its full context, it is necessary to review briefly the fact situation leading up to and throughout this case. Defendant in this case chose to act as counsel on his own behalf. Defendant was not at any time an indigent person entitling him to court-appointed counsel. Throughout the periods for which he was charged, he earned over $10,000 annually. He chose to represent and defend himself, with the advice and help of other tax protestants and with the knowledge that the State would be represented by skilled counsel. The trial judge took numerous occasions to remind him of the consequences of his decision, and the record is replete with instances where the court gave him the benefit of rulings that could well have been decided otherwise. Defendant was further allowed full argument privileges and broad cross-examination. Upon some occasions, defendant’s cross-examination became pure argument as to the theory of his own defense. Until the case was closed, every effort was made to assist defendant in submitting his case to the jury.
Several recent opinions of the United States Supreme Court have considered the issue and problems resulting from pro se counsel. In Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, Mr. Justice Stewart, speaking for the majority in a pro se case where the trial court had forced appellant to take state-appointed counsel, noted at 834, 95 S.Ct. at 2540-2541:
“The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of [his] conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ [Citation omitted.]
“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently forego those relinquished benefits.’ [Citation omitted.]”
Justice Blackmun, noting that, in his opinion, no amount of pro se pleading can cure the injury to society of an unjust result, but a “just result should prove to be an effective balm for almost any frustrated pro se defendant,” closed his dissent as follows:
“If there is any truth to the old proverb that ‘one who is his own lawyer has a fool for a client’ the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.” Faretta, 422 U.S. at 852, 95 S.Ct. at 2550.
We find, as in Faretta, that a defendant who elects to represent himself cannot complain on appeal that the quality of his own defense acted to his detriment by not amounting to effective counsel. Here, defendant knowingly and intelligently relinquished his right to counsel and proceeded with his defense in his own behalf. He cannot now complain that rules of procedures and law should be applied less strictly against him.
The judgment of the District Court is reversed and remanded for a new trial.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY, concur.
|
[
-2,
0,
-40,
-8,
8,
-20,
-12,
7,
-55,
52,
9,
23,
32,
-16,
5,
-48,
-48,
-2,
45,
-8,
22,
-32,
-3,
13,
54,
-39,
14,
59,
-44,
-3,
6,
-2,
-4,
-46,
0,
13,
-24,
20,
13,
-11,
-4,
22,
-56,
-21,
-17,
-33,
-32,
3,
28,
-3,
53,
-2,
0,
-23,
62,
0,
26,
-37,
-44,
-20,
-21,
19,
78,
43,
20,
-28,
11,
15,
16,
-39,
-43,
14,
-19,
-6,
27,
-23,
-1,
2,
12,
89,
-8,
-5,
-33,
-1,
8,
-30,
5,
-39,
54,
-5,
-5,
-44,
-35,
11,
25,
-17,
6,
-11,
-8,
7,
-73,
33,
0,
12,
44,
-43,
-11,
6,
1,
28,
0,
-52,
-15,
-35,
-20,
29,
6,
15,
9,
-30,
-26,
0,
-14,
46,
31,
-2,
17,
-20,
-2,
26,
-4,
0,
-6,
-55,
-35,
57,
-43,
-53,
10,
34,
23,
-31,
34,
3,
-12,
0,
32,
-9,
50,
-2,
-34,
12,
41,
71,
14,
-29,
1,
-54,
50,
-33,
22,
9,
-62,
-26,
26,
29,
18,
-6,
16,
-77,
49,
-10,
-9,
18,
61,
21,
9,
4,
12,
-15,
-8,
12,
77,
1,
8,
8,
25,
-7,
10,
-28,
-3,
52,
30,
-36,
-16,
-35,
88,
41,
-46,
-32,
21,
-13,
41,
37,
27,
-2,
69,
-42,
-2,
-40,
-12,
-29,
40,
-12,
-59,
0,
-63,
-17,
8,
21,
-24,
71,
-12,
-2,
-17,
-3,
-20,
25,
15,
9,
-69,
6,
14,
-44,
1,
-30,
10,
-20,
-18,
-15,
-54,
-62,
-20,
-19,
27,
48,
-59,
-43,
-46,
-20,
-3,
-26,
-10,
-1,
-40,
-20,
62,
-3,
-10,
-37,
-2,
-27,
35,
-11,
-26,
-96,
56,
13,
20,
8,
-31,
48,
30,
0,
-20,
-50,
-2,
-12,
10,
-26,
-18,
-32,
-12,
-23,
-6,
2,
-7,
-23,
26,
-12,
-2,
-49,
12,
-8,
-8,
0,
4,
-22,
-8,
13,
-9,
-8,
31,
-11,
23,
-19,
0,
-31,
27,
13,
17,
-4,
-54,
14,
65,
13,
-14,
-19,
6,
-21,
54,
49,
64,
32,
-34,
48,
-5,
-25,
28,
-14,
4,
20,
-4,
-3,
61,
-52,
55,
-51,
-20,
28,
-19,
-16,
7,
39,
-41,
48,
-4,
25,
11,
22,
23,
18,
11,
64,
27,
0,
-3,
-36,
-70,
-8,
27,
-1,
-21,
-30,
-30,
26,
-23,
-22,
35,
-9,
-79,
-11,
25,
34,
-33,
-21,
-16,
29,
-56,
-9,
-4,
-21,
-45,
-3,
-7,
-28,
75,
-10,
-41,
-35,
14,
16,
22,
12,
15,
-24,
11,
-38,
27,
37,
-21,
60,
66,
-5,
-6,
-32,
31,
29,
-41,
19,
27,
-4,
-29,
5,
-17,
-35,
53,
-6,
35,
7,
37,
24,
-58,
8,
16,
-41,
0,
75,
7,
19,
40,
29,
-32,
-59,
-6,
-4,
11,
8,
-28,
-34,
-3,
-10,
-32,
-9,
28,
-60,
-12,
9,
44,
21,
-57,
4,
-68,
2,
19,
32,
54,
-70,
-7,
-58,
-23,
29,
39,
-12,
52,
-27,
20,
-62,
36,
28,
-34,
30,
-12,
48,
-49,
45,
-40,
-30,
9,
-5,
-23,
-39,
14,
-21,
27,
34,
8,
-27,
-11,
26,
0,
40,
3,
-17,
8,
18,
-40,
-33,
60,
-11,
-59,
-62,
49,
11,
19,
-13,
10,
13,
-23,
44,
13,
21,
45,
-20,
-38,
24,
-25,
13,
-3,
26,
-2,
24,
7,
0,
-55,
-31,
2,
-24,
4,
37,
-10,
47,
26,
-51,
-13,
0,
65,
20,
-26,
25,
42,
18,
-14,
3,
12,
25,
-6,
31,
8,
-36,
18,
-2,
33,
51,
-77,
-8,
29,
14,
0,
26,
30,
-10,
20,
-10,
-13,
-11,
-74,
2,
-38,
-6,
-11,
2,
5,
-20,
17,
31,
-40,
-30,
16,
-38,
45,
-14,
18,
-86,
-35,
-21,
21,
36,
46,
-15,
-13,
-9,
-3,
30,
-38,
2,
-48,
-19,
-34,
-42,
8,
-24,
12,
-15,
21,
15,
10,
27,
-1,
-24,
41,
38,
51,
-3,
6,
38,
-7,
-97,
36,
-9,
24,
-37,
5,
-7,
-17,
-4,
-9,
-29,
-32,
-49,
-20,
-2,
-8,
-25,
8,
-8,
-9,
-28,
-36,
15,
19,
24,
-6,
6,
25,
-50,
64,
-27,
14,
13,
52,
0,
25,
-25,
-22,
25,
68,
-21,
25,
5,
-11,
-8,
31,
22,
26,
36,
19,
-5,
86,
46,
-28,
-71,
-39,
12,
5,
-56,
-2,
-43,
-12,
-40,
21,
23,
27,
33,
11,
50,
16,
-45,
-5,
36,
-12,
8,
-14,
40,
-35,
5,
11,
6,
-13,
-10,
6,
5,
-29,
29,
-12,
27,
-17,
-10,
-6,
52,
-20,
6,
23,
20,
-23,
-32,
-30,
7,
-27,
-40,
-40,
-67,
0,
5,
8,
-33,
-23,
-6,
-17,
39,
-7,
34,
-6,
18,
0,
30,
-9,
12,
19,
69,
55,
-24,
-4,
45,
5,
55,
52,
-10,
-11,
-40,
4,
25,
-17,
55,
-20,
31,
-26,
-3,
-39,
-5,
38,
-13,
22,
7,
-50,
-16,
3,
5,
5,
-57,
-5,
50,
-34,
-8,
24,
11,
-18,
23,
29,
28,
65,
21,
-25,
12,
2,
-1,
-51,
49,
29,
5,
29,
-42,
61,
-74,
-2,
58,
-16,
36,
-73,
28,
-20,
-2,
41,
38,
11,
4,
-7,
4,
-27,
49,
-44,
-9,
-2,
-5,
14,
-49,
0,
20,
-24,
-49,
-12,
-8,
19,
40,
0,
29,
-30,
15,
-13,
22,
-28,
24,
23,
-37,
17,
-29,
26,
-9,
-58,
-12,
-9,
-13,
8,
-35,
24,
66,
34,
-11,
-6,
12,
12,
26,
26,
8,
-8,
79,
9,
-21,
-36,
79,
15,
40,
-16,
12,
12,
-49,
-9,
-17,
22,
37,
13,
-20,
-25,
54,
-13,
30,
26,
40,
29,
-35,
13,
33,
-4,
-28,
4,
-44,
18,
9,
51,
-37,
-22,
-32,
21,
-22,
11,
-42,
-30,
-65,
-10,
-11,
34,
13,
-8,
-1,
16,
27,
6,
-20,
11,
49,
19,
-7,
12,
-55,
-25,
-38,
-18,
21,
6,
42,
20,
19,
-52,
36,
-14,
-22,
17,
-33,
-12,
34,
-16,
8,
-33,
35,
14,
-18,
23,
-3,
15,
13,
-8,
-50,
55,
-51,
-20,
47,
-7,
-31,
-18,
-7,
15,
-35,
6,
29,
6,
46,
0,
-12,
43,
-10,
-58,
37,
-7,
8,
-50,
-28,
7,
-12,
16,
22,
-59,
-55,
-47,
-50,
18,
57,
-21,
3,
-21,
-13,
26,
11,
17,
-11,
-1,
-9,
-12,
-38,
25,
-23,
45,
19,
34,
-14,
82,
-4,
11,
-34,
21,
-56,
-6,
-71,
-16,
-67,
12,
0,
5,
-25,
3,
22,
-19,
-14,
-49,
-78,
-20,
8,
0,
48,
-7,
2,
-18,
-2,
31,
26
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The husband Emanuel Gohner, appeals from a judgment of the Yellowstone County District Court distributing the assets of the marriage as a result of a dissolution of the marriage.
At trial, the court stated that it would divide the assets evenly between the parties, and the court’s first conclusion of law states: “the property accumulated by the parties during the marriage should be split on a 50-50 basis.” But the property was not split on a 50-50 basis. Furthermore, there are virtually no findings in support of the trial court’s distribution plan, and thus we are unable to determine how it arrived at its conclusions. We note in this respect that the trial court adopted verbatim, the proposed findings and conclusions submitted to the court by counsel for the wife. These findings and conclusions did not adhere to the trial court’s decision to split the property on a 50-50 basis.
The trial court made no findings as to the value of the family home. The only reference in the findings to the home is that the home had been appraised at $26,500 and that certain realtors had listed it for $34,000. This constitutes only a recitation of the evidence as opposed to findings based on the evidence. In its conclusions, the court determined that the wife’s share of the family home was $ 14,000, and ordered the husband to pay her $ 14,000 in cash for this interest. Since the court intended to divide the property equally, we infer that it placed a $28,000 value on the home for purposes of distribution. But in any event, there is no evidence in the record to support that determination.
Nor did the trial court make an equal division of the personal property. The court’s error concerns a $1,400 car payment taken from the wife’s life insurance check. Each of the parties received a $5,000 life insurance check as a result of their son’s service and death in the Armed Forces. At the time of the divorce, the husband still had $2,700 remaining of his $5,000, but the wife had nothing remaining from her $5,000. The trial court ordered that the remaining $2,700 be evenly divided between the parties.
But the automobiles were not divided in a fashion to achieve a 50-50 split in value. Value of the vehicles was set at $4,225. An equal division would give $2,112.50 interest to each. The wife received her equal amount of $2,112.50 when the court awarded her with a $ 1,150 Volkswagen and ordered the husband to pay her $962.50 so that the value was equalized. But the court then went an additional step and awarded her $1,400 for the car payment taken from her insurance check. Accordingly, the wife received over $3,500, or approximately an 85 percent interest in the automobiles. Payment to the wife for money taken out of her check is not consistent with the court’s determination that it would divide the marital assets on a 50-50 basis. This is particularly so in light of the court’s award to the wife of an equal share in the remainder of the husband’s check.
We note moreover, that at the end of the trial, the court entered an oral order for the husband to pay the wife’s attorney fees. Time and time again we have stated that written findings are required to establish both the wife’s necessity for payment from the husband, and to establish the reasonableness of the fees. This was not done.
The judgment is vacated and remanded for further proceedings consistent with this opinion.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
-15,
49,
-19,
-55,
-71,
-62,
41,
52,
29,
-12,
55,
0,
19,
10,
2,
-46,
2,
-32,
14,
-8,
-2,
-17,
-41,
31,
28,
100,
49,
-13,
30,
-51,
30,
5,
-29,
-21,
27,
20,
-8,
38,
-63,
7,
20,
-52,
6,
16,
-26,
34,
48,
-65,
-7,
-6,
5,
-40,
23,
-47,
51,
29,
39,
76,
-48,
-17,
60,
-5,
-41,
25,
30,
29,
66,
-12,
3,
-74,
-61,
-38,
2,
0,
-31,
-52,
-2,
50,
-52,
-5,
24,
-70,
22,
6,
-16,
-33,
34,
1,
-10,
22,
-28,
18,
62,
39,
3,
36,
40,
7,
8,
52,
29,
3,
10,
32,
-77,
-1,
-11,
-8,
49,
24,
21,
-2,
13,
38,
13,
38,
-33,
-35,
14,
-14,
27,
2,
-7,
-23,
48,
-14,
17,
11,
19,
-71,
28,
39,
-21,
-5,
-4,
-83,
-20,
-22,
-14,
4,
-17,
-23,
4,
-42,
15,
-4,
33,
-95,
10,
-41,
-8,
-40,
6,
32,
41,
-93,
-39,
-14,
11,
-42,
33,
-8,
-48,
39,
-21,
22,
-13,
6,
-6,
-6,
46,
-36,
-28,
-41,
21,
13,
14,
-29,
7,
12,
0,
62,
33,
-19,
4,
-5,
-29,
-14,
-27,
-64,
3,
28,
-3,
37,
-17,
24,
65,
30,
29,
-15,
-6,
-61,
2,
39,
-57,
-1,
4,
-23,
-8,
-8,
14,
23,
22,
-42,
-47,
39,
-8,
-30,
-35,
-28,
23,
-11,
-25,
-88,
-48,
-17,
10,
-16,
9,
-20,
-44,
12,
-23,
-23,
12,
-11,
-22,
0,
-27,
-24,
0,
-44,
-24,
-38,
30,
-8,
-34,
9,
-24,
16,
-33,
-19,
42,
53,
17,
-21,
13,
56,
16,
-34,
2,
59,
11,
6,
-16,
-22,
50,
-52,
7,
3,
-12,
-5,
-22,
-13,
29,
-40,
0,
17,
-19,
36,
-1,
37,
6,
-15,
9,
26,
11,
11,
45,
45,
-6,
-28,
61,
-5,
-30,
-15,
-8,
3,
9,
-56,
1,
-4,
10,
82,
-19,
20,
-24,
-26,
-27,
62,
35,
5,
39,
13,
61,
26,
-72,
-6,
9,
8,
74,
-26,
-27,
10,
2,
16,
-14,
-52,
-49,
25,
-67,
52,
-2,
24,
16,
-99,
-12,
6,
0,
-10,
-16,
-51,
52,
-45,
8,
-11,
0,
27,
-4,
27,
-57,
53,
-36,
25,
-75,
-12,
54,
-16,
-15,
-69,
18,
38,
10,
-8,
-53,
55,
-4,
-37,
-36,
23,
-18,
13,
-17,
11,
30,
-11,
-4,
0,
-8,
7,
-15,
-4,
40,
23,
-5,
81,
-22,
-20,
-18,
25,
-2,
-16,
40,
9,
5,
0,
3,
-30,
-71,
-18,
-3,
33,
-6,
-22,
-44,
-2,
35,
-24,
-87,
-9,
-28,
-73,
2,
-6,
37,
51,
12,
13,
-19,
21,
36,
11,
-8,
-51,
-11,
-46,
-59,
0,
-29,
28,
-33,
51,
-24,
-56,
83,
-6,
54,
-4,
-43,
20,
2,
58,
-3,
42,
17,
-22,
-26,
-4,
59,
55,
23,
-49,
-7,
31,
6,
-61,
68,
-31,
-5,
-34,
25,
8,
0,
-35,
29,
-49,
-46,
-18,
50,
-8,
-23,
45,
21,
54,
47,
50,
-55,
-30,
29,
-37,
-28,
-30,
-16,
18,
-21,
7,
-61,
-19,
-29,
0,
37,
-16,
37,
-28,
-20,
-61,
31,
4,
23,
-45,
6,
2,
22,
14,
0,
-16,
4,
-7,
-1,
-5,
27,
29,
64,
-53,
-44,
-19,
17,
-7,
62,
29,
-50,
4,
1,
-52,
29,
-52,
52,
22,
-7,
-31,
-38,
54,
-23,
-8,
-13,
-7,
24,
-44,
20,
-22,
-6,
3,
-12,
-20,
-2,
103,
-4,
-53,
11,
-7,
-3,
-56,
11,
21,
33,
-35,
-20,
-50,
31,
-57,
36,
22,
-39,
-5,
37,
-42,
-11,
-47,
-18,
-14,
-28,
-10,
-19,
0,
7,
-24,
19,
-10,
-37,
-18,
3,
12,
-32,
-36,
-17,
23,
41,
50,
23,
20,
6,
-8,
-14,
22,
4,
-34,
3,
-41,
-38,
11,
-41,
8,
-19,
13,
-44,
-13,
-11,
74,
10,
13,
23,
19,
11,
2,
56,
40,
11,
-64,
43,
5,
41,
41,
42,
-37,
49,
-41,
-16,
64,
-42,
-13,
25,
-68,
99,
-14,
15,
31,
50,
-7,
-33,
-35,
44,
1,
-8,
28,
-18,
12,
-41,
-6,
-1,
-57,
17,
51,
-25,
-25,
38,
18,
22,
-45,
-1,
24,
-10,
-17,
28,
59,
-53,
3,
13,
-21,
-14,
25,
-5,
-29,
0,
32,
17,
30,
27,
47,
13,
44,
-11,
-62,
-26,
16,
-20,
-27,
-2,
-1,
71,
-3,
-17,
-7,
-7,
12,
-18,
10,
10,
77,
-45,
0,
10,
22,
-20,
-19,
-9,
35,
0,
2,
-51,
-26,
17,
-10,
-38,
-48,
-46,
-33,
-7,
4,
-30,
-17,
-34,
-57,
-6,
-53,
-4,
-55,
15,
8,
-2,
13,
-3,
49,
-48,
46,
-56,
47,
-5,
28,
-12,
1,
-2,
25,
18,
21,
30,
11,
20,
9,
2,
32,
4,
37,
42,
11,
-37,
-25,
-11,
-17,
-15,
-50,
14,
49,
-37,
32,
35,
-12,
6,
-21,
-14,
6,
-26,
-13,
-9,
22,
-2,
12,
-46,
-8,
12,
-20,
-23,
-23,
-5,
-24,
-40,
4,
27,
-3,
25,
30,
-32,
-9,
15,
-30,
-22,
-24,
-1,
24,
-13,
-49,
43,
70,
31,
-17,
-12,
8,
-43,
23,
19,
40,
-10,
-36,
41,
-30,
9,
-6,
-11,
11,
22,
-17,
47,
-31,
-6,
-9,
9,
-23,
-2,
4,
-30,
55,
0,
-21,
33,
25,
-12,
-31,
-16,
-18,
-31,
19,
45,
-46,
-82,
32,
36,
59,
2,
2,
41,
33,
18,
0,
74,
33,
-9,
-28,
-43,
57,
25,
21,
-2,
40,
23,
9,
22,
-4,
44,
22,
11,
-26,
-6,
24,
-11,
-8,
8,
5,
52,
28,
4,
-11,
-18,
25,
2,
-2,
-15,
-5,
52,
42,
-51,
2,
1,
-35,
9,
-24,
-12,
-41,
35,
-35,
35,
-44,
6,
-18,
-40,
11,
98,
10,
-4,
51,
0,
9,
39,
-6,
-28,
7,
-4,
-8,
21,
-53,
-10,
21,
-30,
-3,
1,
-7,
29,
-11,
-36,
-15,
-19,
39,
-2,
40,
12,
9,
14,
-14,
-39,
29,
-19,
-32,
-4,
-30,
23,
25,
8,
-1,
-6,
-31,
8,
-3,
13,
40,
35,
75,
-4,
-7,
0,
-42,
3,
32,
-85,
15,
2,
-33,
2,
-33,
63,
28,
-27,
-8,
34,
-26,
10,
-78,
-9,
12,
71,
-11,
0,
-41,
7,
20,
6,
19,
2,
-17,
9,
-20,
-41,
44,
-2,
6,
21,
11,
-26,
-3,
48,
-13,
27,
-8,
-19,
2,
21,
-29,
2,
-63,
-10,
28,
12,
21,
-2,
35,
3,
9,
-47,
36,
-23,
54,
-17,
-11,
-17,
35,
33,
12
] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 A jury convicted Kingsley Ariegwe of attempted sexual intercourse without consent and unlawful transactions with children, and the District Court for the Eighth Judicial District, Cascade County, sentenced him to a term of imprisonment in the Montana State Prison. The court also ordered Ariegwe to pay restitution totaling $14,234.66. Ariegwe now appeals from his conviction and sentence. We affirm in part, reverse in part, and remand for further proceedings.
¶2 The issues on appeal are as follows:
1. Did the District Court err in denying Ariegwe’s motion to dismiss for lack of a speedy trial?
2. Did the District Court abuse its discretion in denying Ariegwe’s motion for a new trial?
3. Is the District Court’s restitution order illegal?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Ariegwe and a 15-year-old girl whom we will refer to as “K.M.” met on January 15,2003, in an Internet chat room devoted to romance in Montana. During the course of their online conversation, K.M. learned that Ariegwe was a 32-year-old male (he was actually 35) living in Great Falls. K.M. informed Ariegwe that she also lived in Great Falls, and she directed him to the online profile associated with her screen name (online pseudonym). The profile contained descriptive information-including K.M.’s age, which was listed as 15-and her picture. The two of them chatted for awhile, and Ariegwe gave K.M. his telephone number.
¶4 K.M. called Ariegwe the following evening (January 16) and again the next morning (January 17). In the course of these conversations, Ariegwe mentioned that he was divorced and that he had a 9-year-old son. K.M. informed Ariegwe that his age did not bother her “because [she] wasn’t planning on doing anything with him.” (K.M. later explained at Ariegwe’s trial that because she was homeschooled and worked upwards of thirty hours a week as a babysitter, contact over the Internet was one way for her to make friends.) K.M. and Ariegwe also discussed alcoholic beverages, and K.M. disclosed that she had previously tried mm.
¶5 During the conversation on January 17, K.M. and Ariegwe arranged to meet later that morning at a local car dealership, where K.M. would be dropping off her mother’s car for servicing. Upon arriving at the dealership, Ariegwe found K.M. in the waiting area. The two talked briefly and then decided to leave. Ariegwe drove K.M. to his house (which he shared with his ex-wife, his son, and his daughter), and upon arriving, they proceeded down to Ariegwe’s living quarters in the basement. As for what transpired next, KM.’s and Ariegwe’s stories diverge dramatically.
¶6 According to K.M., Ariegwe went upstairs to get some glasses in which to serve them each an alcoholic beverage. Meanwhile, he had given her permission to play Nintendo, but K.M. was not able to get the game to work, so she just sat on the couch and waited. When Ariegwe came back downstairs, he poured K.M. a glass of liquor and she drank it. Ariegwe then sat next to K.M. on the couch and they watched television. After a couple of minutes, Ariegwe began playing with KM.’s hair and kissing her neck. K.M. told him to stop doing this, but he replied that she should give him a chance to show her that he’s good with his tongue. Ariegwe then pulled K.M. onto his lap and, in so doing, bruised her left arm. He continued to kiss her neck and then pulled up her shirt and her bra and began kissing her breasts, notwithstanding KM.’s insistence that he stop. He also stuck his hands between her legs and started rubbing her, after which he got on his knees on the floor and began biting in between her legs.
¶7 K.M. tried to push Ariegwe away. She told him that she wanted to leave, at which point he served her two more glasses of liquor, which she drank, as she later explained, “[b]ecause I was stupid.” Thereafter, Ariegwe and K.M. stood up and he hugged her. She thought he was going to take her back to the car dealership, but instead he moved her over to the bed a short distance away where he laid her down, straddled her, removed most of her clothing, and performed oral sex-again, notwithstanding KM.’s demand that he stop. Ariegwe then attempted several times to penetrate K.M. The first attempt occurred on the bed, but K.M. managed to slide out from underneath him. She fell on the floor, where he persisted to attempt to penetrate her, but K.M. kept sliding out from underneath him. Eventually, K.M. ended up at the bottom of the stairs, where Ariegwe finally penetrated her for about twenty seconds. He apparently pulled away before climaxing, which enabled KM. to retrieve her clothing and get dressed. Ariegwe asked KM. if she was okay, to which she replied, “No.” He then got dressed and drove her back to the car dealership.
¶8 According to Ariegwe, by contrast, he did not have any sexual contact with K.M. Rather, upon arriving at the house, K.M. accompanied Ariegwe down to the basement and they sat down to talk. KM. stated that she wanted an alcoholic beverage, so Ariegwe retrieved a bottle of liquor from the utility room, set the bottle on top of his entertainment center, and went upstairs to get drinking glasses. When he returned to the basement, he found K.M. sitting on the couch and playing the Nintendo game without his permission. He also observed that she was drinking directly from the bottle of liquor, was becoming “too playful” and “very hyper,” and was “touching everything.”
¶9 Ariegwe put the liquor away and brought K.M. back to the couch to talk and watch televsion. After about ten or twenty minutes, KM. indicated that she wanted to leave, at which point the two of them walked over to the stairs. When K.M. took the first step, she staggered and fell backwards, prompting Ariegwe to grab K.M.’s arm to stabilize her. He led her up the stairs and then drove her back to the car dealership.
¶10 That afternoon, K.M. telephoned her best friend R.K. Although she did not disclose all of the details, K.M. confided to R.K. that she had had sex with a man in his thirties. Unbeknownst to K.M., this brief conversation was recorded on an answering machine at R.K.’s house. R.K’s parents heard the conversation and contacted KM.’s parents, who confronted K.M. the next morning. K.M. acknowledged a sexual encounter and stated that it had been involuntary.
¶11 K.M.’s parents contacted the police and took K.M. to the hospital for an examination. The police questioned K.M. at the hospital and then asked her to show them the house where she had been taken the previous morning (i.e., Ariegwe’s house). The police later obtained a warrant to search the residence. They seized two shot glasses from the upstairs sink and a bottle of rum, a computer, and bedding from the basement. They also went to K.M.’s home and retrieved the clothing she had worn while at Ariegwe’s house. Meanwhile, Ariegwe’s ex-wife contacted Ariegwe, who was at work at the time, and told him that the police were investigating his encounter with K.M. Ariegwe turned himself in at the police station later in the day (January 18), believing that he was in trouble only for providing an alcoholic beverage to a minor. The police arrested him and executed a body search warrant (which involves the collection of biological samples, such as blood, saliva, and hair). Ariegwe was then incarcerated for four days before he posted bond securing his release.
¶12 On February 7, 2003, the State filed an information charging Ariegwe with Count I, sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (2001), and Count II, unlawful transactions with children, a misdemeanor, in violation of § 45-5-623(l)(c), MCA (2001). Ariegwe pleaded not guilty to these charges on February 20, 2003, and the District Court set trial for May 13, 2003. Five postponements of the trial date ensued. (Each of the postponements is detailed under Issue One, infra.) Then, on December 16,2003, the State filed an amended information adding an alternative charge under Count I-namely, attempted sexual intercourse without consent, a felony, in violation of §§ 45-4-103 and 45-5-503, MCA (2001)-to which Ariegwe pleaded not guilty on December 18, 2003. Five days later, the District Court vacated the existing January 5, 2004 trial date, since the parties were waiting for test results from the crime lab, and the court set a status hearing for January 22, 2004.
¶13 At the status hearing, defense counsel stated that he had received the crime lab reports, and the court and the parties then agreed on a March 1,2004 trial date. Defense counsel also indicated, however, that he would be filing a motion to dismiss on speedy trial grounds. That motion was filed, as was a response by the State, and the District Court denied the motion following a hearing on February 17,2004. The case then proceeded to trial on March 1 and concluded on March 3, 2004. On March 4, the jury acquitted Ariegwe of sexual intercourse without consent but convicted him of attempted sexual intercourse without consent and unlawful transactions with children.
¶14 On March 24, 2004, Ariegwe filed a motion for a new trial pursuant to § 46-16-702, MCA. He argued that he had been denied a fair trial because the prosecutor, during closing arguments, had inaccurately represented certain scientific evidence adduced at trial and because defense counsel, during trial, had failed to object to allegedly improper testimony by the State’s trace hair and fiber examination expert. The State filed a response opposing the motion, and Ariegwe filed a reply. The District Court thereafter denied Ariegwe’s motion, noting that the court had given a curative instruction to the jury concerning the prosecutor’s inaccurate representations of the evidence, that the trace hair and fiber examination expert’s allegedly improper testimony was of limited evidentiary value, and that there was ample remaining evidence upon which the jury could have found Ariegwe guilty of attempted sexual intercourse without consent and unlawful transactions with children.
¶15 The District Court sentenced Ariegwe on June 17, 2004, to fifty years in the Montana State Prison, with fifteen years suspended, and six months in the Cascade County Detention Center, to run concurrently with the fifty-year sentence. The court also ordered Ariegwe to pay restitution as follows: $3,332.68 to K.M.’s family, $38.40 to the Montana State Crime Victims Compensation Unit, and $10,863.58 to EBMS Insurance Co., for a total of $14,234.66. This appeal followed.
¶16 Additional facts are provided below where relevant.
DISCUSSION
¶17 Issue One. Did the District Court err in denying Ariegwe’s motion to dismiss for lack of a speedy trial?
I. Our Framework for Analyzing Speedy Trial Claims
¶18 Ariegwe’s first contention on appeal is that the District Court erred in denying his motion to dismiss for lack of a speedy trial. We last clarified the framework by which we analyze speedy trial claims in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, and we have consistently applied the Bruce test to such claims that have since come before this Court. In so doing, however, it has become apparent that certain aspects of the test are now in need of clarification or modification. Thus, we have determined at this juncture to revisit our approach to speedy trial claims, in particular because our doing so here does not affect the outcome of this appeal.
¶19 We begin in Part A by reviewing the speedy trial test articulated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), followed in Part B with a discussion of the framework we adopted in Bruce. We then set forth, in Part C, a detailed explanation of our revised speedy trial test, including several important rules for applying that test, after which we provide a summary and an outline of the revised speedy trial test in Part D. Lastly, in Part E, we specify the rules pertaining to the timing of a motion to dismiss on speedy trial grounds and the corresponding ruling by the trial cotut.
A. The Barker v. Wingo Balancing Test
¶20 A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of the Montana Constitution. Klopfer v. North Carolina, 386 U.S. 213, 222-26, 87 S. Ct. 988, 993-95 (1967); Mont. Const. art. II, § 24. In Barker, the United States Supreme Court set forth the approach under which the Sixth Amendment right to a speedy trial is to be evaluated. Specifically, the Corut adopted “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Barker, 407 U.S. at 530, 92 S. Ct. at 2191-92. Acknowledging that such an approach “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” the Court identified “some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right”: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant as a result of the delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; see also Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992) (articulating these factors as four separate inquiries: “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result”). The Court explained that “these factors have no talismanic qualities”; rather, “they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193.
¶21 In State v. Sanders, 163 Mont. 209, 516 P.2d 372 (1973), we noted that this Court had been considering “[essentially the same factors” when analyzing speedy trial claims. Sanders, 163 Mont. at 213, 516 P.2d at 375; accord Fitzpatrick v. Crist, 165 Mont. 382, 388, 528 P.2d 1322, 1325 (1974) (“The United States Supreme Court and this Court have adopted essentially the same test to determine whether a trial is ‘speedy/ ”). Indeed, in State v. Steward, 168 Mont. 385, 543 P.2d 178 (1975), we explained that this Court had adopted the Barker factors in State ex rel. Thomas v. District Court, 151 Mont. 1, 438 P.2d 554 (1968), based on an earlier listing of those factors in United States v. Simmons, 338 F.2d 804 (2nd Cir. 1964). See Steward, 168 Mont. at 389, 543 P.2d at 181. Thus, following the Barker decision, we merely incorporated the Supreme Court’s clarification of the four factors into our existing analytical framework. See e.g. Sanders, 163 Mont. at 213-15, 516 P.2d at 375-76; Fitzpatrick, 165 Mont. at 388-90, 528 P.2d at 1326; Steward, 168 Mont. at 389-94, 543 P.2d at 181-83; State v. Keller, 170 Mont. 372, 377-81, 553 P.2d 1013, 1016-19 (1976); see also State v. Tiedemann, 178 Mont. 394, 398, 584 P.2d 1284, 1287 (1978).
B. The Bruce Test
¶22 Twenty-six years after Barker was decided, we observed that the four-factor balancing test had, unfortunately, led to “seemingly inconsistent results” nationwide. Bruce, ¶ 20; see also Bruce, ¶¶ 21-49 (identifying varied and inconsistent applications of the test in our own caselaw). Therefore, seeking to achieve more consistent dispositions of speedy trial claims in Montana, we articulated a more structured method for analyzing such claims. As described below, we retained the four factors identified in Barker, but we incorporated objective, bright-line criteria into three of them, and we modified the function and importance each factor plays in the overall balancing.
¶23 Under Factor One (the length of the delay), we explained that we would continue to consider the length of the delay from the date of accusation (e.g., when the charges were filed) until the defendant’s trial date “for the purpose of determining whether there is a basis for conducting a speedy trial analysis.” Bruce, ¶ 55. We then established 200 days-irrespective of fault for the delay-as “the necessary length of time to trigger further speedy trial analysis.” Bruce, ¶ 55. If less than 200 days have passed, then further speedy trial analysis is unnecessary. Thus, we fashioned Factor One as a threshold criterion; however, we indicated that the length of the delay would also be considered later in the analysis. See Bruce, ¶ 55.
¶24 Under Factor Two (the reason for the delay), we retained our approach of assigning responsibility or “fault” for the various periods of delay to either the State or the defendant. Bruce, ¶ 56. However, we then created a burden-shifting scheme based on the number of days of delay attributable to the State. Specifically, we stated that if less than 275 days of delay are attributable to the State, then the defendant has the burden (under Factor Four) to demonstrate that he or she has been prejudiced by the delay. Bruce, ¶ 56. Conversely, if 275 or more days of delay are attributable to the State, then a rebuttable presumption of prejudice arises and the State has the burden to overcome this presumption by demonstrating that the defendant has not been prejudiced by the delay. Bruce, ¶¶ 39, 56. We explained that the rebuttable presumption of prejudice “ ‘mandates the conclusion [that the defendant has been prejudiced] in the absence of contradictory evidence.’ ” Bruce, ¶ 33 (quoting 22A C.J.S. Criminal Law § 695 (1985)); see also Bruce, ¶¶ 21-39 (discussing and reaffirming this presumption). Finally, we stated that if the State overcomes the presumption of prejudice, then the burden shifts to the defendant to demonstrate that he or she has been prejudiced by the delay, and the district court then weighs the evidence of each party. Bruce, ¶ 56.
¶25 Next, under Factor Three (whether the defendant timely asserted the right to a speedy trial), we stated that “if the right to speedy trial is invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy trial, the third prong is satisfied.” Bruce, ¶ 57.
¶26 Finally, under Factor Four (prejudice to the defendant), we indicated that we would continue to consider pretrial incarceration, anxiety and concern to the defendant, and impairment of the defense. Bruce, ¶¶ 58, 68. We noted, however, that “the importance of this factor and the degree of prejudice to establish denial of speedy trial will vary based upon other considerations, such as the length of delay and the reason for delay.” Bruce, ¶ 58.
¶27 In sum, the Bruce framework requires (1) a determination that the length of the delay from the date of accusation until the defendant’s trial date is at least 200 days, (2) a determination of who has the burden to demonstrate prejudice (the defendant) or to demonstrate lack thereof (the State) under Factor Four, (3) notation of whether the defendant asserted the right to a speedy trial prior to the commencement of trial, and (4) an assessment of the proof offered by the defendant (to prove prejudice) or the State (to disprove prejudice) based on pretrial incarceration, anxiety and concern to the defendant, and impairment of the defense, with due consideration for the length of the delay and the reason for the delay. Although these modifications to our speedy trial test resulted in a more structured analytical approach, we recognize, for the reasons which follow, that our method of analysis has strayed considerably from the actual balancing approach envisioned in Barker and that it is necessary to reexamine certain features of our existing analytical framework.
¶28 First, both Ariegwe and the State refer to speedy trial analysis under Bruce as “a balancing of four factors.” We too have used this characterization. See e.g. State v. Hardaway, 1998 MT 224, ¶ 13, 290 Mont. 516, ¶ 13, 966 P.2d 125, ¶ 13 (“[T]his Court recently established a four-part balancing test in [Bruce].”); State v. Johnson, 2000 MT 180, ¶ 14, 300 Mont. 367, ¶ 14, 4 P.3d 654, ¶ 14 (“We analyze and balance each of the four factors.”); State v. Blair, 2004 MT 356, ¶ 14, 324 Mont. 444, ¶ 14, 103 P.3d 538, ¶ 14 (“[C]ourts must engage in a difficult and sensitive balancing process.”); State v. Doyle, 2007 MT 125, ¶ 18, 337 Mont. 308, ¶ 18, 160 P.3d 516, ¶ 18 (‘We engage in a lengthy and difficult balancing process.”). Yet, the approach we adopted in Bruce does not actually involve a “balancing” of all four factors. Factor One is a threshold criterion; Factor Two determines who has the burden of proof under Factor Four; Factor Three, which is satisfied if the right to a speedy trial is invoked at any time prior to the commencement of trial, is properly characterized as a “non-weighted, ‘either you asserted the right or you did not’ ” criterion, Bruce, ¶ 81 (Leaphart, J., specially concurring); and Factor Four involves an assessment of prejudice to the defendant pursuant to the burden established under Factor Two. This approach more closely approximates a four-step analytical progression than it does a four-factor balancing test. Moreover, it channels the focus of the analysis to the issue of prejudice (Factor Four), rendering the reasons for the delay (Factor Two) and any efforts by the defendant to move the case along (Factor Three) relatively inconsequential.
¶29 The District Court’s speedy trial analysis in the case at hand illustrates this point. The court noted that more than 200 days of delay had occurred, that at least 275 days of that delay were attributable to the State, and that Ariegwe had asserted his right to a speedy trial prior to the commencement of trial. Hence, the court focused on the issue of prejudice, ultimately concluding that the State had met its burden of demonstrating that Ariegwe had not been prejudiced by the delay and that he therefore had not been denied his right to a speedy trial. Factor Four, thus, seems to have been dispositive; indeed, the court’s analysis does not reflect a “balancing” of Factor Four against the three other factors, thus prompting Ariegwe’s contention on appeal that the District Court “gave undue weight to this factor, to the exclusion or minimization of the other factors.”
¶30 Yet, the District Court’s approach is consistent with the analytical progression set forth in ¶¶ 55-58 of Bruce, which contradicts the notion that speedy trial analysis under Bruce involves “a balancing of four factors.” However, given that the right to a speedy trial is “necessarily relative” and “depends upon circumstances,” United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966) (internal quotation marks omitted), we believe that an actual balancing of all four factors is preferred and, in fact, is more likely to produce an accurate assessment of a speedy trial claim than is an approach under which three of the factors function, essentially, as mere preludes to the fourth.
¶31 Second, based on the rebuttable presumption of prejudice articulated in Bruce and restated in several of our subsequent precedents, Ariegwe suggests that once the State has caused 275 days of delay, the defendant need not come forward with any proof that he or she has been prejudiced as a result of the delay unless the State rebuts the presumption of prejudice (citing Blair, ¶ 26, Johnson, ¶ 17, and Bruce, ¶ 56). This interpretation of the presumption is consistent with our explanation of rebuttable presumptions in Bruce:
“A presumption ... attaches definitive probative value to certain facts. If the presumption is conclusive, it mandates a particular conclusion; if it is rebuttable, it mandates the conclusion in the absence of contradictory evidence.”
Bruce, ¶ 33 (ellipsis in original, emphasis added) (quoting 22A C.J.S. Criminal Law § 695 (1985)); see also State v. Kipp, 1999 MT 197, ¶ 25, 295 Mont. 399, ¶ 25, 984 P.2d 733, ¶ 25 (“[O]nce the presumption attached, it was not incumbent on the defendant to prove prejudice. It was incumbent on the State to disprove prejudice. Because it did not do so, the presumption of prejudice prevails.”); State v. Haser, 2001 MT 6, ¶ 25, 304 Mont. 63, ¶ 25, 20 P.3d 100, ¶ 25 (“[O]nce the delay attributable to the State exceeds 275 days, . . . prejudice is presumed.”). Yet, presuming prejudice based on nothing more than the State’s failure to prove the contrary is not, in our view, an accurate basis on which to evaluate a speedy trial claim.
¶32 Lastly, we held in Bruce that so long as the defendant asserts the right to a speedy trial prior to the commencement of trial, he or she has satisfied the third prong of the Barker test and “further analysis of that prong is not only unnecessary, but inappropriate.” Bruce, ¶ 48. For reasons we detail below, however, we are no longer of the view that further analysis under Factor Three is “unnecessary” and “inappropriate.”
¶33 Accordingly, we take this opportunity to revisit the process by which speedy trial claims are to be analyzed by the courts of this State and to revise our analytical framework in several significant respects.
C. Our Revised Speedy Trial Test
¶34 At the outset, we reaffirm that Barker’s balancing approach is “the correct and most complete standard available to judge speedy trial questions.” State v. Tiedemann, 178 Mont. 394, 398, 584 P.2d 1284, 1287 (1978). Furthermore, although the Supreme Court indicated in Barker that the factors which courts should assess when analyzing a speedy trial claim might be expressed in different ways, Barker, 407 U.S. at 530, 92 S. Ct. at 2192, we find the four factors suggested by the Supreme Court-the length of the delay, the reason for the delay, assertion of the right, and prejudice to the defendant-to be suitable for our method of speedy trial analysis.
¶35 However, while we are guided by Barker’s general approach for analyzing speedy trial claims, the test we articulate below is grounded in Article II, Section 24 of the Montana Constitution, which provides a speedy trial guarantee that is independent of the Sixth and Fourteenth Amendments to the United States Constitution. See Buckman v. Montana Deaconess Hosp., 224 Mont. 318, 324, 730 P.2d 380, 384 (1986) (“Because the federal constitution establishes the floor and not the apex of constitutional rights, state action may violate our Montana Constitution, but not violate any federal constitutional guarantee.”). Accordingly, we may “give our own meaning” to Barker’s four factors. State v. Britton, 213 Mont. 155, 158, 689 P.2d 1256, 1258 (1984).
¶36 We now detail the inquiries a court is to make under each factor of the balancing test.
1. Factor One: The Length of the Delay
¶37 In Barker, the Supreme Court stated with respect to Factor One that “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192. In Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992), however, the Supreme Court clarified that Factor One “is actually a double enquiry.” Doggett, 505 U.S. at 651, 112 S. Ct. at 2690. The Court explained as follows:
Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, he cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time.
Doggett, 505 U.S. at 651-52, 112 S. Ct. at 2690-91 (citations omitted).
¶38 Thus, under the Supreme Court’s approach, the first inquiry under Factor One-whether a speedy trial analysis has been triggered-is a threshold matter, while the second inquiry under Factor One-the extent to which the delay stretches beyond the trigger date-is a matter to be weighed in the overall balancing. We agree with this approach and adopt it. Thus, consistent with the distinction explained in Doggett, and for the sake of clarity in the analysis, trial courts henceforth must address the length of the delay clearly, and first, as a threshold matter and then, if the speedy trial test has been triggered, as a factor to be weighed in the overall balancing.
i. The 200-Day Threshold
¶39 Accordingly, the first question to be answered with every speedy trial claim is whether the interval between accusation and trial is sufficient to trigger the four-factor balancing test. This interval is measured without regard to fault for the delay. Bruce, ¶ 55; State v. Collier, 277 Mont. 46, 54, 919 P.2d 376, 382 (1996).
¶40 As for what constitutes a sufficient interval between accusation and trial, the Supreme Court stated in Barker that “because of the imprecision of the right to speedy trial, the length of delay that will [trigger a speedy trial analysis] is necessarily dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31, 92 S. Ct. at 2192. However, the Supreme Court also cautioned that “[n]othing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought.” Barker, 407 U.S. at 530 n. 29, 92 S. Ct. at 2192 n. 29.
¶41 In Bruce, we established 200 days as “the necessary length of time to trigger further speedy trial analysis.” Bruce, ¶ 55. We arrived at this number based on the varying lengths of delay we had considered sufficient (or insufficient) in our prior decisions. See Bruce, ¶¶ 22-23. We believe that this length of time is still appropriate, given the reality of crowded court dockets throughout the State and certain built-in pretrial delays, such as reciprocal discovery; pretrial motions, appearances, and hearings (some of which are statutorily mandated); defense investigation; and obtaining the results of tests and analyses of evidence from the crime lab. It is true that the amount of delay that is customary is also a function of the complexity of the charged offense(s). See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. However, for the sake of retaining a bright-line trigger date, we will address the complexity of the charged offense(s) under Factor Two (the reasons for the delay). Accordingly, we reaffirm the 200-day threshold: A speedy trial claim lacks merit as a matter of law if the interval between accusation and trial is less than 200 days (again, irrespective of fault for the delay).
¶42 As for when the speedy trial clock begins to run, we stated in State v. Longhorn, 2002 MT 135, 310 Mont. 172, 49 P.3d 48, that “[t]he right of a defendant to a speedy trial commences when he becomes an accused.” Longhorn, ¶ 22. We explained this concept in greater detail in State v. Larson, 191 Mont. 257, 623 P.2d 954 (1981):
The right to a speedy trial is guaranteed to an “accused” by the Montana and United States constitutions. Consequently, the protection afforded by the guarantee is activated when a criminal prosecution has begun and extends to those persons who have been formally accused or charged in the course of that prosecution whether that accusation be by arrest, the filing of a complaint, or by indictment or information.
Larson, 191 Mont. at 261, 623 P.2d at 957-58; accord State v. Morris, 230 Mont. 311, 315, 749 P.2d 1379, 1381 (1988); see also Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 303-04 (1975) (per curiam) (“ ‘[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.’ ” (quoting United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463 (1971)). We reaffirm the rule set forth in Larson and add that the speedy trial clock begins to run at the earliest of the enumerated occurrences.
¶43 Lastly, it bears repeating that the interval between accusation and trial runs not to the date on which the accused’s speedy trial motion is considered by the court but, rather, to the scheduled trial date or the date on which a plea of guilty is entered, whichever date represents the date of disposition of the case. State v. Kipp, 1999 MT 197, ¶ 9, 295 Mont. 399, ¶ 9, 984 P.2d 733, ¶ 9; State v. Ellenburg, 2000 MT 232, ¶ 16, 301 Mont. 289, ¶ 16, 8 P.3d 801, ¶ 16; see also State v. Mooney, 2006 MT 121, ¶ 15, 332 Mont. 249, ¶ 15, 137 P.3d 532, ¶ 15 (holding that the right to a speedy trial applies through sentencing).
ii. The Extent to which the Delay Stretches beyond the Trigger Date
¶44 The Supreme Court stated in Doggett that if the accused shows that “the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay,” “the court must then consider, as one factor among several, the extent to which the delay stretches beyond the [trigger date].” Doggett, 505 U.S. at 651-52, 112 S. Ct. at 2690-91. The significance of this inquiry, the Supreme Court explained, is that “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691.
¶45 Like the Supreme Court, this Court has recognized that “a delay sufficient to trigger further analysis also creates a presumption of prejudice.” Bruce, ¶ 24. Beyond this, however, our approach has diverged substantially from that of the Supreme Cotut. Whereas the Supreme Court characterizes the presumption of prejudice as something which “intensifies over time,” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691, this Court has followed a bright-line rule pursuant to which prejudice is either presumed or not presumed and the burden of presenting evidence on the issue of prejudice “shifts” from the accused to the State, see Bruce, ¶¶ 21, 39, 56. Because we intend herein to adopt Doggett’s articulation of the role played by the presumption of prejudice in the overall balancing, we shall explain in detail how that presumption operated in our past cases and why we now conclude that the presumption of prejudice serves a more practical purpose under the approach set forth in Doggett.
¶46 The starting point for this discussion is Barker’s articulation of Factor One-in particular, the Supreme Court’s statement that “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance,” Barker, 407 U.S. at 530, 92 S. Ct. at 2192 (emphasis added). Consistent with this language, this Court long followed the rule that a delay sufficient to trigger the speedy trial test is also sufficient to impose on the State the burden of showing that the accused has not been prejudiced by the delay or to create a presumption of prejudice that the State must then rebut. Indeed, our pre-Bruce cases on this point are legion.
¶47 In Bruce, we modified our approach by establishing the 275-day rule. Pursuant to this rule, the presumption of prejudice arises not on the 200-day trigger date but, rather, when 275 days of delay are attributable to the State. See Bruce, ¶ 56. Thus, there is an interval after the balancing test has been triggered-between 200 days of total delay and 275 days of delay attributable to the State-during which the presumption does not exist. However, once the presumption arises, it mandates the conclusion that the accused has been prejudiced by the delay unless it is overcome by contradictory evidence presented by the State. See Bruce, ¶ 33. In other words, the accused need not come forward with evidence of prejudice unless and until the State overcomes the presumption.
¶48 Upon further scrutiny of the Supreme Court’s analysis in Doggett, the premise upon which our approaches to the presumption of prejudice rested is no longer compelling. Barker’s reference to “presumptively prejudicial” delay was not meant to place the burden of proof with respect to the issue of prejudice entirely on the State or to mandate a finding of prejudice absent evidence to the contrary. Indeed, the Supreme Court clarified in Doggett that “as the term is used in this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Doggett, 505 U.S. at 652 n. 1, 112 S. Ct. at 2691 n. 1 (emphasis added).
¶49 This does not mean, however, that presumptive prejudice plays no further role in the speedy trial analysis. To the contrary, a presumption of prejudice arises at the point when the balancing test is triggered; our cases simply misinterpreted the function of that presumption under Barker. Rather than establishing a bright-line point in time at which the accused is relieved of the burden of proving prejudice and the State takes on the burden of disproving prejudice, the presumption’s significance is in its intensifying effect: the further the delay stretches beyond the trigger date, the more likely the delay has prejudiced the accused. See Doggett, 505 U.S. at 652, 112 S. Ct. at 2691 (“[T]he presumption that pretrial delay has prejudiced the accused intensifies over time.”). In this respect, the length of the delay (Factor One) and the necessary showing of prejudice (Factor Four) are inversely related: as the delay gets longer, the quantum of proof that may be expected of the accused decreases, while the quantum of proof that may be expected of the State increases. Thus, the intensifying nature of the presumption of prejudice suggests simultaneously increasing (the State’s) and decreasing (the accused’s) burdens under Factor Four.
¶50 We have not heretofore considered the propriety of such an approach for purposes of our own speedy trial test. We do so now and conclude, for the reasons which follow, that an intensifying presumption of prejudice is a more practical application of presumptive prejudice than is Bruce’s bright-line 275-day rule.
¶51 For one thing, the point of the presumption of prejudice is not to relieve the accused of coming forward with evidence of prejudice; rather, it is simply an indicator of the quantum of evidence required: the less the delay extends beyond the trigger date, the smaller the presumption of prejudice and, thus, the greater the accused’s burden to show prejudice (and the smaller the State’s concomitant burden to disprove prejudice). To be sure, there is a point in time at which prejudice may be presumed without affirmative proof thereof. See Doggett, 505 U.S. at 655, 112 S. Ct. at 2693 (“[W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.”). However, we do not believe that that point is reached simply because the State is responsible-perhaps due to institutional forces beyond the prosecutor’s control-for 275 days of delay.
¶52 Furthermore, presuming prejudice merely because the State has presented insufficient evidence to the contrary is not always justified and would, in some cases, provide the accused with an undeserved windfall. Indeed, a finding of prejudice based on nothing more than the State’s failure of proof does not provide an accurate basis on which to weigh Factor Four against the other three factors in the overall balancing.
¶53 In this regard, we note that the accused generally has better access than does the State to evidence showing whether he or she has suffered oppressive pretrial incarceration, unduly prolonged anxiety and concern, and impairment of his or her ability to prepare an effective defense. The State, by contrast, is in the position of having to overcome a presumption by proving a negative-namely, that the accused’s interests in being brought to trial promptly have not been infringed and that the defense has not been impaired-a task that we have recognized in some instances is all but impossible. See e.g. State v. Keating, 285 Mont. 463, 476, 949 P.2d 251, 259 (1997) (“From a practical standpoint, it would be virtually impossible for the State to rebut presumed prejudice from an allegedly impaired defense without some showing by the defendant of actual impairment resulting in prejudice.”); Bruce, ¶ 56 (noting “that direct proof of a defendant’s state of mind may not always be possible and that the State’s ability to anticipate the nature of the defendant’s defense may vary from case to case”); State v. Haser, 2001 MT 6, ¶ 32, 304 Mont. 63, ¶ 32, 20 P.3d 100, ¶ 32 (“[S]ince it is nearly impossible for the State to prove that anxiety and concern do not exist, the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.” (internal quotation marks omitted)); State v. Boese, 2001 MT 175, ¶ 16, 306 Mont. 169, ¶ 16, 30 P.3d 1092, ¶ 16 (observing that “impairment to one’s defense is the most difficult form of speedy trial prejudice to prove” and, conversely, that “prejudice is difficult to disprove” (emphasis added, internal quotation marks omitted)).
¶54 It is true that the State might present evidence tending to establish the absence of prejudice indirectly. For instance, if the accused’s own actions during the periods of delay suggest that he or she did not actually want to be brought to trial, then it seems less likely that he or she was actually prejudiced by the delay. See e.g. State v. Keyes, 2000 MT 337, ¶ 18, 303 Mont. 147, ¶ 18, 15 P.3d 443, ¶ 18 (observing that Keyes had fled from Montana’s jurisdiction, had remained a fugitive from justice for nearly two years, and, during that time, had demonstrated absolutely no interest in obtaining a speedy trial, preserving evidence or witnesses, or advancing his legal defenses). Or, if previously unknown or unavailable exculpatory evidence came to light dining the pendency of the trial, then it seems plausible that the delay worked to the accused’s advantage. Cf. State v. Stuart, 2001 MT 178, ¶ 23, 306 Mont. 189, ¶ 23, 31 P.3d 353, ¶ 23 (noting that “delay would have provided more-not less-time to locate [exculpatory] witnesses”). Alternatively, the State might demonstrate that all of the potential evidence in the case has been preserved and that all of the accused’s potential witnesses are available to testify at trial and possess adequate memories of the events in question, which suggests that the accused’s ability to present an effective defense has not been impaired. See e.g. State v. Bowser, 2005 MT 279, ¶¶ 22-23, 329 Mont. 218, ¶¶ 22-23, 123 P.3d 230, ¶¶ 22-23.
¶55 Nevertheless, requiring the State to disprove the considerations that make up the prejudice inquiry under Factor Four in order to overcome an otherwise mandated presumption of prejudice is, as a general rule, impractical. More importantly, the accuracy of the overall balancing is enhanced when both the accused and the State present evidence on the issue of prejudice and neither party relies solely on the existence (the accused) or nonexistence (the State) of the presumption of prejudice (except, perhaps, in cases of unusually long delay).
¶56 For these reasons, we are not retaining Bruce’s 275-day rule in our speedy trial framework. Instead, the presumption that pretrial delay has prejudiced the accused exists as of the 200-day trigger date for speedy trial analysis (at which point it is minimal) and intensifies (escalates) over time. Furthermore, the accused should come forward with evidence tending to establish prejudice, the State should come forward with evidence tending to establish the contrary, and the court must weigh each party’s evidence (or lack thereof) pursuant to the principles discussed above. Thus, the State’s failure to make a persuasive showing of no prejudice weighs more heavily against it in the overall balancing when the delay is long, but such failure is of little weight where the delay is relatively brief. Likewise, a persuasive showing of prejudice by the defendant is more important where the delay is short and less important where the delay is long.
¶57 Before proceeding to Factor Two, three additional aspects of our Bruce decision bear on the instant discussion and, therefore, require attention. First, we discussed “the rebuttable presumption of prejudice” at length in Bruce. See Bruce, ¶¶ 21-39. After identifying reasons for presuming prejudice, and after acknowledging the Supreme Court’s observations that affirmative proof of particularized prejudice is not essential to every speedy trial claim, see Bruce, ¶¶ 34-38, we concluded “that the rebuttable presumption of prejudice established by our earlier cases is not only the better public policy, but that it is constitutionally required,” Bruce, ¶ 39 (emphasis added). Later in the opinion, we articulated “the point at which and the circumstances under which the presumption of prejudice will attach’-namely, when 275 or more days of delay are attributable to the State. See Bruce, ¶¶ 39, 56.
¶58 Although we are not retaining Bruce’s 275-day rule in our revised speedy trial framework, we do not intend this as an implicit overruling of our statement that the rebuttable presumption of prejudice is “constitutionally required.” Rather, we conclude only that Bruce’s particular construct of that presumption is neither constitutionally required nor supported by the Supreme Court precedents from which it purportedly derives. For the reasons set forth above, the presumption of prejudice does not establish mutually exclusive burdens of proving and disproving prejudice but, instead, determines the necessary showings both parties must make under Factor Four. Under this interpretation, both the accused and the State should come forward with evidence on this issue; but because “the presumption that pretrial delay has prejudiced the accused intensifies over time,” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691, the necessary showing by the accused of particularized prejudice decreases, and the necessary showing by the State of no prejudice correspondingly increases, with the length of the delay.
¶59 Second, we opined in Bruce that “[a]t some point in time (which we leave for future consideration). . . the mere passage of time must necessarily be considered sufficient to conclusively establish denial of the right to speedy trial.” Bruce, ¶ 56 (citing Doggett generally). Yet, Doggett does not preclude the State from attempting to rebut the presumption of prejudice, as would a conclusive presumption (see Bruce, ¶ 33). Indeed, in reaching the conclusion that Doggett was entitled to relief, the Supreme Court noted specifically that the government had not “persuasively rebutted” the presumption of prejudice in that case. See Doggett, 505 U.S. at 658, 112 S. Ct. at 2694.
¶60 Furthermore, nothing in Doggett supports the proposition that the mere passage of time may be sufficient to establish denial of the right. While the mere passage of time may give rise to a presumption of prejudice so compelling that the accused need not make any showing under Factor Four, the Supreme Court clarified that such presumptive prejudice “cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.” Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2693. Indeed, the Supreme Court stated that generally a speedy trial claim would fail, “however great the delay,” if the government had pursued the accused with reasonable diligence and the accused could not show specific prejudice to his or her defense as a result of the delay. Doggett, 505 U.S. at 656, 112 S. Ct. at 2693. Thus, it was a combination of lack of diligence on the part of the government and excessive delay that led the Supreme Court to conclude that Doggett was entitled to relief. See Doggett, 505 U.S. at 656-58, 112 S. Ct. at 2693-94. For this reason, it is doubtful that the mere passage of time could “conclusively” establish that the accused has been denied his or her right to a speedy trial.
¶61 Lastly, in our discussion of the significance of Factor One in the overall balancing, we have focused, thus far, on the relationship between the length of the delay (Factor One) and prejudice (Factor Four), explaining that the further the delay stretches beyond the 200-day trigger date, the more likely the delay has prejudiced the accused. This is not to say, however, that the extent of the post-trigger-date delay bears only on Factor Four. Indeed, the State’s burden under Factor Two to provide valid justifications for the delay likewise “ ‘ “increases with the length of delay.” ’ ” Bruce, ¶ 26 (quoting State v. Steward, 168 Mont. 385, 389, 543 P.2d 178, 181 (1975), in turn quoting United States v. Rucker, 464 F.2d 823, 825 (D.C. Cir. 1972)). In other words, the further the delay stretches beyond the 200-day trigger date, the more compelling the State’s justifications for the delay must be. See e.g. Doggett, 505 U.S. at 657, 112 S. Ct. at 2693 (“[T]he weight we assign to official negligence [in bringing an accused to trial] compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness.”); Rucker, 464 F.2d at 825 (“When the delay approaches a year and a half, as in this case, the Government must provide a justification which convincingly outweighs the prejudice which can normally be assumed to have been caused the defendant.”); State v. Barker, 261 Mont. 379, 383-84, 862 P.2d 1112, 1115 (1993) (“Because the State was unable to demonstrate either compelling circumstances to warrant such a lengthy delay, or that it diligently pursued bringing Barker’s case to trial, we conclude that, in this instance, the delay weighs heavily against the State.”).
¶62 Thus, to sum up the speedy trial inquiries under Factor One, the first question to be answered is whether the interval between accusation and trial is at least 200 days (irrespective of fault for the delay). If not, then further analysis is unnecessary and the claim should be denied. But if the interval is at least 200 days, then the four-factor balancing test is triggered and the court must proceed with a full analysis. With respect to the second inquiry under Factor One, the court must consider the extent to which the delay (again, irrespective of fault for the delay) stretches beyond the 200-day trigger date. The significance of this latter inquiry is twofold: first, the presumption that pretrial delay has prejudiced the accused intensifies over time, and second, the State’s burden under Factor Two to justify the delay likewise increases with the length of the delay.
2. Factor Two: The Reasons for the Delay
¶63 Turning now to Factor Two, under this factor the court first identifies each period of delay in bringing the accused to trial. Because the question is one of “delay,” the court does not consider any actions taken by the State or the accused which do not result in a postponement of the trial date.
¶64 Second, the court attributes each period of delay to the appropriate party. In this regard, “[a] defendant has no duty to bring himself to trial; the State has that duty.” Barker, 407 U.S. at 527, 92 S. Ct. at 2190 (footnote omitted); accord State v. Blair, 2004 MT 356, ¶ 23, 324 Mont. 444, ¶ 23, 103 P.3d 538, ¶ 23 (“[A] defendant is under no obligation to ensure diligent prosecution of the case against him or to help the State avoid dismissal for failure to timely prosecute him.”); In re A.G., 2002 MT 111, ¶ 26, 309 Mont. 491, ¶ 26, 47 P.3d 831, ¶ 26 (“[I]t is up to the State to move the case towards prosecution.”). Furthermore, “society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.” Barker, 407 U.S. at 527, 92 S. Ct. at 2190; see also Barker, 407 U.S. at 519-21, 92 S. Ct. at 2186-87 (discussing “[the] societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused”). Accordingly, the State bears the burden of explaining the pretrial delays.
¶65 The Ninth Circuit reached the same conclusion in McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003), reasoning as follows:
The Supreme Court has repeatedly held that the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner and that this duty requires a good faith, diligent effort to bring him to trial quickly. See Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (stating that courts should inquire whether the state “discharge[d] its ‘constitutional duty to make a diligent, good-faith effort to bring [the defendant to trial]’ ” (quoting Smith v. Hooey, 393 U.S. 374, 384, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969))); Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (“[T]he right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.”).
Numerous lower courts have, thus, held that the prosecution bears the burden of explaining delay in bringing an accused to trial. See e.g., United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999) (stating that government had the burden of proving that defendant was actually culpable in causing the delay by evading arrest on the indictment, or was aware of the issuance of the indictment and intentionally hid himself from law enforcement agents); United States v. Graham, 128 F.3d 372, 374 (6th Cir. 1997) (holding that the state has the burden to explain pretrial delay); Jones v. Morris, 590 F.2d 684, 686 (7th Cir. 1979) (finding that where reason for 23-month delay did not clearly appear in the record, “the absence of any reason for the delay should weigh against the state”); Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir. 1975) (stating that where the record does not demonstrate reason for the delay and the state has provided no reasonable explanation, the court will “assume that there is no justifiable reason and weigh this factor heavily against the state”); Georgiadis v. Superintendent, Eastern Correctional Facility, 450 F.Supp. 975, 980 (S.D.N.Y.), aff'd, 591 F.2d 1330 (2d Cir. 1978) (stating that where actions of the defendant do not account for entire period, “the responsibility for these unexplained delays should rest with the state”). Although Barker did not explicitly identify the burden of proof for pretrial delay, it refers to the reason for the delay as “the reason the government assigns to justify the delay.” 407 U.S. at 531, 92 S.Ct. 2182. We likewise hold that the prosecution bears the burden of explaining pretrial delays.
McNeely, 336 F.3d at 826-27 (alterations in original). Any delay not demonstrated to have been caused by the accused or affirmatively waived by the accused, therefore, is attributed to the State by default. See McNeely, 336 F.3d at 827, and cases cited therein; Bruce, ¶¶ 60-63; State v. Kipp, 1999 MT 197, ¶ 16, 295 Mont. 399, ¶ 16, 984 P.2d 733, ¶ 16; see also State v. Ellenburg, 2000 MT 232, ¶¶ 29-31, 301 Mont. 289, ¶¶ 29-31, 8 P.3d 801, ¶¶ 29-31.
¶66 In attributing each period of delay, however, the court must bear in mind that delay requested by a particular party may be attributable to the other party. See e.g. State v. Diaz, 2006 MT 303, ¶¶ 32-33, 334 Mont. 479, ¶¶ 32-33, 148 P.3d 628, ¶¶ 32-33 (holding that delay requested by the State but necessitated by the accused’s unlawful acts was attributable to the accused); State v. Keyes, 2000 MT 337, ¶¶ 13-14, 303 Mont. 147, ¶¶ 13-14, 15 P.3d 443, ¶¶ 13-14 (holding that the time associated with Keyes’ application to this Court for a writ of supervisory control was attributable to the State, given that the necessity of the application and the delay occasioned by our consideration of the application were due to the confusing nature of the charges under which the State had sought to prosecute Keyes).
¶67 Lastly, after identifying and attributing each period of delay in bringing the accused to trial, the court assigns weight to each period based on the specific cause and motive for the delay. This is necessary because the weight assigned to a particular period of delay will depend on the party’s culpability in causing it. The following examples provided by the Supreme Court in Barker illustrate this point with respect to delay attributable to the State:
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (emphases added, footnote omitted); see also Strunk v. United States, 412 U.S. 434, 436, 93 S. Ct. 2260, 2262 (1973) (“Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violated.”).
¶68 With respect to deliberate attempts by the prosecution to delay the trial versus overcrowded court dockets, our cases already require that these two types of delay be attributed to the State but weighed differently. In State v. Blair, 2004 MT 356, 324 Mont. 444, 103 P.3d 538, for example, we characterized delay inherent in the criminal justice system and caused by circumstances largely beyond the control of the prosecutor and the accused as “institutional delay,” and we attributed such delay to the State. See Blair, ¶ 19; see also State v. Good, 2002 MT 59, ¶ 26, 309 Mont. 113, ¶ 26, 43 P.3d 948, ¶ 26 (“[The accused] cannot be held responsible for the court’s policy regarding the setting of trial dates and its management of its criminal caseload.”); Kipp, ¶ 14 (“When a trial court, for its own reasons, vacates the trial date and does not set a new date, this delay is not attributable to the defendant.”). However, we explained that institutional delay weighs less heavily against the State than does intentional delay, because institutional delay “is not one the State actively pursued,” whereas intentional delay “exposes the defendant to ‘oppressive tactics of the prosecution.’ ” Blair, ¶ 19.
¶69 As for negligence, the Supreme Court explained in Doggett that “[b]etween diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground.” Doggett, 505 U.S. at 656-57, 112 S. Ct. at 2693. The Court stressed that “[although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. We too have treated negligence (or lack of diligence) in bringing the accused to trial as an unacceptable reason for delay. See e.g. State v. Tiedemann, 178 Mont. 394, 399-405, 584 P.2d 1284, 1288-91 (1978); State v. Fife, 193 Mont. 486, 490, 632 P.2d 712, 715 (1981); State v. Barker, 261 Mont. 379, 383-84, 862 P.2d 1112, 1115 (1993); Blair, ¶ 24; see also State v. Johnson, 2000 MT 180, ¶ 12, 300 Mont. 367, ¶ 12, 4 P.3d 654, ¶ 12 (“As a general matter, the right to a speedy trial places on the State the burden of diligent prosecution at all stages of a criminal proceeding.”); Kipp, ¶ 16 (same); State v. Longhorn, 2002 MT 135, ¶ 22, 310 Mont. 172, ¶ 22, 49 P.3d 48, ¶ 22 (“If the accused is out of state, the State must act diligently and in good faith to acquire jurisdiction.”).
¶70 Finally, besides delay caused by bad faith on the part of the prosecution, delay caused by negligence or lack of diligence, and delay caused by circumstances largely beyond the control of the prosecutor and the accused (e.g., overcrowded court dockets), there are “valid reasons” for delay attributable to the State. For instance, if the charged offense is particularly complex, additional time to prepare for trial may be required. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”); see also State v. Bretz, 185 Mont. 253, 264, 269, 605 P.2d 974, 981-82, 984 (1979); State v. Kills on Top, 243 Mont. 56, 77, 80, 793 P.2d 1273, 1287, 1289 (1990). Another “valid reason” is a missing witness. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. In Johnson, for example, we observed that “the two continuances requested by the State in this trial were supported by good cause, namely, the unavailability of key prosecution witnesses on the scheduled trial dates.” Johnson, ¶ 20. We therefore weighed such delay less heavily against the State in the overall balancing. See Johnson, ¶¶ 20, 39.
¶71 The crucial point of these distinctions and examples is that there are gradations of culpability in the delay attributed to the State-with bad-faith delay at one extreme and a valid reason, such as a missing witness, at the other extreme-which depend on the cause, the motive, and other surrounding circumstances. And the same is true of delay attributed to the accused. Delay caused by the accused to avoid being brought to trial or for tactical reasons weighs more heavily against him or her than does delay caused by a missing witness.
¶72 The function of Factor Two in the overall balancing, therefore, is no longer “to conclusively establish a burden shift for the determination of prejudice,” State v. Haser, 2001 MT 6, ¶ 25, 304 Mont. 63, ¶ 25, 20 P.3d 100, ¶ 25; see also State v. Doyle, 2007 MT 125, ¶ 21, 337 Mont. 308, ¶ 21, 160 P.3d 516, ¶ 21 (“The court allocates the total number of days of delay between the parties for the purpose of determining which party carries the burden of proof under the prejudice factor.”); State v. Stanko, 1998 MT 323, ¶¶ 29-30, 292 Mont. 214, ¶¶ 29-30, 974 P.2d 1139, ¶¶ 29-30 (stating that it was “immaterial” whether the delay at issue was attributed to the State or to Stanko, since the burden under Factor Four was on Stanko either way). Rather, this factor’s significance is in the specific cause and culpability for each period of delay. Obviously, the more delay in bringing the accused to trial that is due to lack of diligence or other “unacceptable” reasons, the more likely the accused’s speedy trial right has been violated. Likewise, the more delay caused by the accused for “unacceptable” reasons, the less likely the right has been violated. Lastly, because “the primary burden” to assure that cases are brought to trial is “on the courts and the prosecutors,” Barker, 407 U.S. at 529, 92 S. Ct. at 2191, the further the delay stretches beyond the 200-day trigger date, the more compelling the State’s justifications for the delay must be (see ¶ 61, supra).
3. Factor Three: Assertion of the Right (hereinafter, The Accused’s Responses to the Delay)
¶73 In Bruce, we held that “there is no magical time for assertion of the right to a speedy trial which should be weighed more favorably to the defendant than some other time”; so long as the accused asserts the right to a speedy trial at any time prior to the commencement of trial, he or she “has satisfied the third-prong of the Barker test and... further analysis of that prong is not only unnecessary, but inappropriate.” Bruce, ¶ 48. In establishing this bright-line rule, we reasoned as follows:
Analysis of when in a long period of delay, or how often during a long period of delay a defendant asserts the right to a speedy trial, makes an already subjective and arbitrary review process even more so. In the interests of consistency, predictability, and justice, our purpose should be to establish more objective criteria for prosecutors, defense lawyers, and district courts to evaluate speedy trial issues. The trend of subjectively evaluating the date on which each appellant has asserted his or her right to a speedy trial is the antithesis of that objective.
Bruce, ¶ 48.
¶74 It is true that analyzing when and how often the accused asserted the right to a speedy trial is a less objective approach than the “non-weighted, ‘either you asserted the right or you did not’ approach” we adopted in Bruce (see Bruce, ¶ 81 (Leaphart, J., specially concurring)). Moreover, there is indeed no “magical time” for assertion of the right. See Barker, 407 U.S. at 521, 92 S. Ct. at 2187 (noting that “there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial”). That said, we conclude, for the reasons which follow, that the overall accuracy of the balancing test is enhanced when the totality of the accused’s responses to pretrial delays is considered.
¶75 The right to a speedy trial is “generically different” from any of the other rights enshrined in the Constitution for the protection of the accused. Barker, 407 U.S. at 519, 92 S. Ct. at 2186. One difference is that deprivation of the right may actually work to the accused’s advantage. For instance, as the time between the commission of the crime and the trial lengthens, witnesses may become unavailable or their memories may fade; and if these witnesses support the prosecution, its case will be weakened, sometimes seriously so. Barker, 407 U.S. at 521, 92 S. Ct. at 2187.
¶76 Thus, as Barker makes clear, whether the accused actually wanted to be brought to trial promptly is an “important” consideration in ascertaining whether his or her right to a speedy trial has been violated. Barker, 407 U.S. at 534, 92 S. Ct. at 2194. Indeed, the fact that Barker seemingly did not want to be tried was the primary factor that counterbalanced the “extraordinary” delay of over five years between his arrest and trial. See Barker, 407 U.S. at 533-36, 92 S. Ct. at 2193-95. It is not always readily apparent whether the accused actually wanted a speedy trial, but some useful indicators identified in Barker are whether and how the accused asserted the speedy trial right, see Barker, 407 U.S. at 531, 92 S. Ct. at 2192, the frequency and force of the accused’s objections to pretrial delays, see Barker, 407 U.S. at 529, 92 S. Ct. at 2191, and the reasons for any acquiescence by the accused in pretrial delays, see Barker, 407 U.S. at 534-36, 92 S. Ct. at 2194-95.
¶77 For instance, the Supreme Court observed that Barker initially acquiesced for tactical reasons in most of the prosecution’s motions to continue; but once it became clear to Barker that he had lost his tactical gamble, he began to object to further continuances. See Barker, 407 U.S. at 534-36, 92 S. Ct. at 2194-95. On these facts, the Supreme Court concluded that Barker had not been deprived of his right to a speedy trial:
We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.
Barker, 407 U.S. at 536, 92 S. Ct. at 2195; see also Barker, 407 U.S. at 536-37, 92 S. Ct. at 2195 (White, J., concurring) (“Although the Court rejects [Barker’s] speedy trial claim..., it is apparent that had Barker not so clearly acquiesced in the major delays involved in this case, the result would have been otherwise.”).
¶78 The accused’s various responses to delays, aside from providing some insight into whether he or she actually wanted to be brought to trial promptly, also serve as a useful gauge of the weights the court should assign to the other three factors in the balancing:
Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.
Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93.
¶79 Thus, Factor Three serves an important role in the balancing test by providing insight into whether the accused actually wanted a speedy trial and what weights the court should assign to the other three factors in the analysis. For this reason, we are departing from the non-weighted, “either you asserted the right or you did not” approach of Bruce. We hold that under Factor Three, the court must evaluate the accused’s responses to the delay-i.e., his or her acquiescence in and objections to pretrial delays. (An objection to delay could take the form of a motion to dismiss on speedy trial grounds, an objection to a motion by the prosecution for a continuance, a motion to compel requested discovery, etc.) The sum of this evaluation-i.e., the totality of the accused’s various responses to the delays in bringing him or her to trial-should then be considered together with the other three factors of the balancing test.
¶80 We caution, however, that we are not suggesting that the accused should complain early and often. The timing and number of instances in which the accused objects to pretrial delay are not talismanic. Indeed, a pro forma motion to dismiss on speedy trial grounds is itself only marginal evidence of a desire to be brought to trial. At the same time, however, acquiescence in delay requested by the prosecutor is not conclusive evidence of a desire not to be brought to trial. Rather, the accused’s various responses to the delays must be evaluated based on the surrounding circumstances-such as the timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, the accused’s pretrial conduct (as that conduct bears on the speedy trial right), and so forth. See United States v. Loud Hawk, 474 U.S. 302, 314, 106 S. Ct. 648, 655-56 (1986) (noting that the accused’s assertion(s) of the speedy trial right “must be viewed in the light of [his or her] other conduct”).
¶81 Thus, a situation in which the accused’s pretrial conduct has been consistent with a sincere desire to be brought to trial promptly would be weighed differently than a situation in which the accused has objected repeatedly to pretrial delays but, at the same time, has filed indisputably frivolous pretrial motions that necessitated postponements of the trial date. See e.g. Loud Hawk, 474 U.S. at 314-15, 106 S. Ct. at 656 (observing that while the defendants were making a record of their speedy trial claims in the district court, they also filled that court’s docket with repetitive and unsuccessful motions). Likewise, a situation in which the accused has acquiesced in a well-founded request by the prosecution to continue the trial would be weighed differently than a situation in which the circumstances demonstrate that the accused acquiesced in long delay in order to gain a tactical advantage. See e.g. Barker, 407 U.S. at 535, 92 S. Ct. at 2194 (“[T]he record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, [Barker] definitely did not want to be tried.”). Finally, a situation in which the accused knowingly failed to object to delay would be weighed differently than a situation in which the accused was unaware that he had been charged with a crime. See e.g. Doggett, 505 U.S. at 653, 112 S. Ct. at 2691 (noting that Factor Three would have weighed heavily against Doggett had he known of the indictment); Barker, 407 U.S. at 529, 92 S. Ct. at 2191 (observing that a court may attach a different weight to a situation in which the accused knowingly failed to object as opposed to a situation in which his attorney acquiesced in long delay without adequately informing his client).
¶82 We note here that the court may not infer that the accused did not want a speedy trial solely because he or she did not object to pretrial delay often or at all. For one thing, Barker does not stand for such an inference. In concluding that Barker did not want a speedy trial, the Supreme Court relied on corroborating facts: counsel’s concessions to this effect dining oral argument, see Barker, 407 U.S. at 535, 92 S. Ct. at 2194, and Barker’s apparent goal of gaining a tactical advantage, see Barker, 407 U.S. at 535-36, 92 S. Ct. at 2194-95. Furthermore, such an inference would conflict with the fact that while the accused has “some responsibility” to object to pretrial delay, see Barker, 407 U.S. at 529, 92 S. Ct. at 2191, he has “no duty to bring himself to trial,” Barker, 407 U.S. at 527, 92 S. Ct. at 2190. Thus, failure to object to pretrial delay does not, by itself, establish that the accused did not want a speedy trial or that the speedy trial right has not been violated. See Barker, 407 U.S. at 536, 92 S. Ct. at 2195 (“We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances.”). At the same time, however, an absence in the record of any objections to delay will make it difficult for the accused to prove that he or she was denied a speedy trial. Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
¶83 In a similar vein, the court may not infer waiver of the speedy trial right based on silence or inaction on the part of the accused. In Barker, the Supreme Court explicitly rejected the rule, followed by a number of courts at the time, under which “a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial.” Barker, 407 U.S. at 525, 528, 92 S. Ct. at 2189, 2191. Among other things, the Court pointed out that “waiver” is “an intentional relinquishment or abandonment of a known right or privilege” and that courts “should not presume acquiescence in the loss of fundamental rights.” Barker, 407 U.S. at 525-26, 92 S. Ct. at 2189 (emphasis added, internal quotation marks omitted).
¶84 In smn, Factor Three is no longer a procedural formality. Rather, this factor serves as an indicator of whether the accused actually wanted a speedy trial, which in turn informs the inquiry into whether there has been a deprivation of the right to a speedy trial. Factor Three also serves as a useful gauge of the weights the court should assign to the other three factors in the balancing.
¶85 Under Factor Three, therefore, the court must evaluate, based on the surrounding circumstances, the accused’s various responses to the delays in bringing him or her to trial. The sum of this evaluation — i.e., the totality of the accused’s responses-should then be considered together with the other three factors of the balancing test. For instance, conduct evidencing a sincere desire to be brought to trial promptly weighs in favor of the accused in the overall balancing, whereas conduct demonstrating a desire to avoid trial weighs against the accused in the overall balancing. Furthermore, in the analysis of prejudice under Factor Four, the court may take account of the timeliness and persistence of the accused’s objections to pretrial delay-though, as explained above, the number of such objections does not equate with the degree of actual prejudice suffered. Finally, because the pertinent focus here is on the totality of the accused’s various responses to pretrial delays, and not simply whether and when he or she filed a motion to dismiss on speedy trial grounds, we are abandoning the “Assertion of the Right” label and henceforth will refer to Factor Three as “The Accused’s Responses to the Delay.”
4. Factor Four: Prejudice to the Accused
¶86 Lastly, under Factor Four, the court inquires into whether the accused has been prejudiced by the delay. Because the speedy trial guarantee “does not purport to protect a defendant from all effects flowing from a delay before trial,” Loud Hawk, 474 U.S. at 311, 106 S. Ct. at 654 (emphasis added), prejudice should be assessed “in the light of the interests of defendants which the speedy trial right was designed to protect,” Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
¶87 Two such interests are minimizing impairment of liberty and shortening disruption of life:
The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982). A third interest is “ ‘limiting] the possibilities that long delay will impair the ability of an accused to defend himself.’ ” Smith v. Hooey, 393 U.S. 374, 377-78, 89 S. Ct. 575, 577 (1969) (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966)).
¶88 The Supreme Court has expressed these interests as follows: (i) to prevent oppressive pretrial incarceration, (ii) to minimize anxiety and concern of the accused, and (iii) to limit the possibility that the defense will be impaired by dimming memories and loss of exculpatory evidence. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. We recognized these same three considerations in Bruce, see Bruce, ¶¶ 19, 56, 58, and we now reaffirm them as the pertinent considerations when evaluating whether the accused has been prejudiced by the delay. We also reaffirm that prejudice may be established based on “any or all” of these considerations. State v. Johnson, 2000 MT 180, ¶ 23, 300 Mont. 367, ¶ 23, 4 P.3d 654, ¶ 23.
i. Prevent Oppressive Pretrial Incarceration
¶89 The first interest-preventing oppressive pretrial incarceration-reflects the “core concern” of the speedy trial guarantee: “impairment of liberty.” Loud Hawk, 474 U.S. at 312, 106 S. Ct. at 654. In Barker, the Supreme Court observed:
The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.
Barker, 407 U.S. at 532-33, 92 S. Ct. at 2193 (footnotes omitted).
¶90 In assessing whether the pretrial incarceration in a given case is “oppressive,” the court must consider all of the circumstances of the incarceration. Foremost among these is duration, given that one of the purposes of the speedy trial guarantee is to ensure that the prosecution “ ‘will move with the dispatch that is appropriate to assure [the accused] an early and proper disposition of the charges against him,’ ” MacDonald, 456 U.S. at 7, 102 S. Ct. at 1501 (quoting United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459 (1971)), and thereby “minimize the possibility of lengthy incarceration prior to trial,” MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. See also State v. Blair, 2004 MT 356, ¶ 28, 324 Mont. 444, ¶ 28, 103 P.3d 538, ¶ 28 (concluding that “the fact of 342 days of pretrial incarceration suffices to establish this element in this case”). Thus, the longer the pretrial incarceration, the more likely it has been oppressive and the more likely the accused has been prejudiced by the delay.
¶91 At the same time, however, while justice should be administered with dispatch, “ ‘the essential ingredient is orderly expedition and not mere speed.’ ” Marion, 404 U.S. at 313, 92 S. Ct. at 459 (alteration omitted) (quoting Smith v. United States, 360 U.S. 1, 10, 79 S. Ct. 991, 997 (1959)). Thus, the complexity of the charged offense(s) is also relevant here. As noted above, the Supreme Court observed in Barker that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Likewise, the length of the pretrial incarceration that is “oppressive” is less for a relatively simple offense than it is for a complex charge.
¶92 Another pertinent consideration is any misconduct on the part of the accused directly related to the pretrial incarceration. For instance, if the accused has demonstrated a likelihood to flee the jurisdiction of the court, see e.g. State v. Keyes, 2000 MT 337, ¶ 18, 303 Mont. 147, ¶ 18, 15 P.3d 443, ¶ 18 (“As to any prejudicial effects of Keyes’ lengthy pretrial incarceration, there can be no doubt in this case that a high bail and resulting incarceration were necessary in light of . . . his demonstrated ability and willingness to abscond from justice.”), or if the accused has engaged in misconduct while incarcerated awaiting trial, see e.g. State v. Ellenburg, 2000 MT 232, ¶ 37, 301 Mont. 289, ¶ 37, 8 P.3d 801, ¶ 37 (“Ellenburg’s incarceration was the result of... [his] misconduct while incarcerated.”), thus necessitating confinement, then it is less likely that the incarceration was oppressive. In a similar vein, the fact that the accused was incarcerated on a separate charge while awaiting trial on the instant charge informs the issue of oppressiveness. See State v. Highpine, 2000 MT 368, ¶ 26, 303 Mont. 422, ¶ 26, 15 P.3d 938, ¶ 26, and cases cited therein; State v. LaGree, 2007 MT 65, ¶¶ 24-26, 336 Mont. 375, ¶¶ 24-26, 154 P.3d 615, ¶¶ 24-26, and cases cited therein. We note, however, that while the fact of incarceration on a separate charge is relevant, it is not dispositive. See Smith v. Hooey, 393 U.S. 374, 378, 89 S. Ct. 575, 577 (1969).
¶93 Lastly, the conditions of the incarceration are relevant in assessing oppressiveness. See Wells v. Petsock, 941 F.2d 253, 257 (3rd Cir. 1991) (observing that “[a]ll pretrial detention is not equally oppressive” and that “the seriousness of a deprivation of liberty due to pretrial incarceration will vary with the conditions of the defendant’s confinement”); see also State v. Johnson, 2000 MT 180, ¶¶ 27-29, 300 Mont. 367, ¶¶ 27-29, 4 P.3d 654, ¶¶ 27-29 (assessing Johnson’s claim that he was prejudiced by the inadequate medical treatment he allegedly received while incarcerated, and concluding that “[n]either the length nor the conditions of incarceration indicate that Johnson’s pre-trial incarceration was oppressive”). In particular, incarceration in facilities that are overcrowded or lacking in recreational opportunities, adequate food, climate control, proper medical care, cleanliness, or legal research capabilities may be considered in assessing whether the incarceration was oppressive. Where such conditions have been present, it is more likely that the pretrial incarceration has been oppressive. We emphasize, however, that any evidence presented concerning the conditions of the incarceration must be tied to the speedy trial inquiry; a speedy trial motion is not an avenue for pursuing grievances that are properly pursued through administrative channels or for attacking the inner workings of the prison system generally. Furthermore, it is insufficient for speedy trial purposes that the conditions of the incarceration have at times been disagreeable. The question here is one of oppressiveness, not merely occasional unpleasantness.
¶94 In sum, there is no bright-line date on which the pretrial incarceration becomes “oppressive.” Rather, this determination will vary from case to case based on the specific circumstances of the incarceration.
ii. Minimize the Accused’s Anxiety and Concern
¶95 The second interest-minimizing anxiety and concern caused by the presence of unresolved criminal charges-is more subjective, not to mention difficult to demonstrate. Nonetheless, it is an interest protected by the right to a speedy trial. United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463 (1971) (noting that one purpose of the speedy trial guarantee is “ ‘to minimize anxiety and concern accompanying public accusation’ ” (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966))). As such, it is a pertinent consideration under Factor Four.
¶96 The Supreme Court has described the interest in minimizing anxiety and concern in relatively broad terms. For instance, in Barker, the Court pointed out that “a defendant awaiting trial on bond might be subjected to public scorn, deprived of employment, and chilled in the exercise of his right to speak for, associate with, and participate in unpopular political causes.” Barker, 407 U.S. at 532 n. 33, 92 S. Ct. at 2193 n. 33 (citing Klopfer v. North Carolina, 386 U.S. 213, 221-22, 87 S. Ct. 988, 992-93 (1967)). Similarly, in Marion the Court observed that “[a]rrest is a public act that . . . may disrupt [the accused’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” Marion, 404 U.S. at 320, 92 S. Ct. at 463. We too have recognized economic hardship and damage to the accused’s reputation in the community as types of prejudice that can flow from the presence of unresolved criminal charges. See e.g. State v. Bailey, 201 Mont. 473, 480-81, 655 P.2d 494, 498-99 (1982); State v. Haskins, 220 Mont. 199, 203, 714 P.2d 119, 121-22 (1986). “ ‘These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.’ ” Moore v. Arizona, 414 U.S. 25, 27, 94 S. Ct. 188, 190 (1973) (per curiam) (quoting Barker, 407 U.S. at 537, 92 S. Ct. at 2195 (White, J., concurring)); see also Hooey, 393 U.S. at 379, 89 S. Ct. at 577 (“[A]n outstanding untried charge . . . can have fully as depressive an effect upon a prisoner as upon a person who is at large.”); Barker, 407 U.S. at 533, 92 S. Ct. at 2193 (“[E]ven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.”).
¶97 In evaluating the interest in minimizing anxiety and concern, therefore, the focus is on the ways in which the presence of unresolved criminal charges has disrupted the accused’s life. The court may infer from evidence of such disruption that the accused has suffered anxiety and concern, which in turn suggests that he or she has been prejudiced. However, a certain amount of anxiety and concern is inherent in being accused of a crime. State v. Chavez, 213 Mont. 434, 444, 691 P.2d 1365, 1371 (1984); State v. Van Voast, 247 Mont. 194, 201, 805 P.2d 1380, 1385 (1991); State v. Spang, 2007 MT 54, ¶ 22, 336 Mont. 184, ¶ 22, 153 P.3d 646, ¶ 22. Furthermore, the speedy trial guarantee is designed “to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges,” United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982) (emphasis added), not to eliminate the disruption altogether. Accordingly, the extent to which the disruption of life and the associated anxiety and concern will support a finding of prejudice will depend on their duration and intensity. In other words, the crucial question here is whether the delay in bringing the accused to trial has unduly prolonged the disruption of his or her life or aggravated the anxiety and concern that are inherent in being accused of a crime. MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502; City of Billings v. Peterson, 2004 MT 232, ¶ 36, 322 Mont. 444, ¶ 36, 97 P.3d 532, ¶ 36; see also State v. Haser, 2001 MT 6, ¶ 34, 304 Mont. 63, ¶ 34, 20 P.3d 100, ¶ 34 (concluding that Haser’s anxieties were attributable more to the nature of the crimes with which he had been charged than to the delay in commencing the trial).
iii. Limit the Possibility that the Defense Will Be Impaired
¶98 Finally, the third interest concerns itself with issues of evidence, witness reliability, and the accused’s ability to present an effective defense. State v. Jefferson, 2003 MT 90, ¶ 36, 315 Mont. 146, ¶ 36, 69 P.3d 641, ¶ 36; Haser, ¶¶ 35, 38; Doggett, 505 U.S. at 654-55, 112 S. Ct. at 2692. In Barker, the Supreme Court characterized this interest as “the most serious” of the interests that the speedy trial right was designed to protect, “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193. In this regard, the Supreme Court observed that “[i]f witnesses die or disappear during a delay, the prejudice is obvious” and that “[t]here is also prejudice if defense witnesses are unable to recall accurately events of the distant past.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Likewise, we recognized in Jefferson that “time may erode the accuracy of witness testimony and exculpatory evidence.” Jefferson, ¶ 36; see also State v. Kipp, 1999 MT 197, ¶ 23, 295 Mont. 399, ¶ 23, 984 P.2d 733, ¶ 23 (“The loss of a ‘main witness’ as a result of delay attributable to the State is prejudicial to the defense.”). Thus, we stated that “this factor often carries more weight than the other bases for concluding a defendant has been prejudiced by a pretrial delay.” Jefferson, ¶ 36; see also State v. Good, 2002 MT 59, ¶ 29, 309 Mont. 113, ¶ 29, 43 P.3d 948, ¶ 29 (“Impairment of defense is arguably the most important of the three factors to consider because a defendant’s inability to adequately prepare his case undermines the fairness of the entire trial system.”); State v. Price, 2001 MT 212, ¶ 28, 306 Mont. 381, ¶ 28, 34 P.3d 112, ¶ 28 (same).
¶99 Impairment of one’s defense, however, “is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93 (internal quotation marks omitted); see also Barker, 407 U.S. at 532, 92 S. Ct. at 2193 (“Loss of memory... is not always reflected in the record because what has been forgotten can rarely be shown.”). For this reason, the accused’s failure to make an affirmative showing that the delay weakened his or her ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence does not preclude a finding that the defense has been impaired. Indeed, “consideration of prejudice is not limited to the specifically demonstrable,” since “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692, 2693. Thus, “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692.
¶100 Accordingly, in the absence of affirmative proof that the delay has impaired the accused’s ability to present an effective defense, impairment must be assessed based on other factors in the analysis-e.g., the length of the delay (the greater the delay, the greater the erosion of exculpatory evidence and testimony), the accused’s responses to the delay (the more imperiled the accused’s ability to present an effective defense becomes, the more likely he or she is to complain about the delay), and the duration of the pretrial incarceration (an accused who is locked up is hindered in his or her ability to gather evidence, contact witnesses, or otherwise prepare his or her defense).
5. Balancing
¶101 With respect to balancing, the Supreme Court explained in Barker:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
Barker, 407 U.S. at 533, 92 S. Ct. at 2193 (footnote omitted).
¶102 We have made similar observations, see e.g. State v. Johnson, 2000 MT 180, ¶ 14, 300 Mont. 367, ¶ 14, 4 P.3d 654, ¶ 14 (“No single factor of the Barker test is indispensable or dispositive.” (internal quotation marks omitted)); State v. Highpine, 2000 MT 368, ¶ 14, 303 Mont. 422, ¶ 14, 15 P.3d 938, ¶ 14 (“Because no single factor is by itself decisive, courts must still engage in a difficult and sensitive balancing process.” (internal quotation marks omitted)), and we now reaffirm that none of the foregoing four factors is either a necessary or a sufficient condition to the legal conclusion that the accused has been deprived of the right to a speedy trial. Rather, the factors must be considered together with such other circumstances as may be relevant.
¶103 As for each factor’s relative importance in the overall balancing, we indicated in Bruce that we were adopting a method of analysis that includes features of both the “straight balancing test” and the “motive test.” See Bruce, ¶ 54. The former “considers each of the four factors equally, and no single factor is decisive,” Bruce, ¶ 51 (citing Brian P. Brooks, A New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes, 61 U. Chi. L. Rev. 587, 592-93 (1994)), whereas the latter “gives greatest consideration to the second Barker factor, the reason for delay,” Bruce, ¶ 53 (citing Brooks, 61 U. Chi. L. Rev. at 610).
¶104 The right to a speedy trial, however, is “necessarily relative” and “depends upon circumstances.” United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966) (internal quotation marks omitted). As such, speedy trial analysis is necessarily case-specific. A defendant whose trial has been delayed twelve months due to stonewalling by the State, but who has not objected to the delay and has not been prejudiced to any significant degree by the delay, presents a markedly different claim than does a defendant whose trial also has been delayed twelve months due to stonewalling by the State, but who has repeatedly demanded a speedy trial during this period and has been prejudiced to a significant degree by the delay.
¶105 For this reason, we decline to state, as a general rule, that Factor Two (the reason for the delay)-or any other factor, for that matter-deserves the “greatest consideration” in the balancing. Rather, each factor’s significance will vary from case to case, and a court assessing a speedy trial claim must weigh the four factors accordingly-i.e., based on the facts and circumstances of the particular case. For example, if the length of the delay is great enough, or if the State is sufficiently culpable in causing delay, a lesser showing of prejudice is necessary. On the other hand, if prejudice is extreme, the length of the delay required to establish a violation of the right is less. This approach, which is consistent with the “straight balancing test” (see Bruce, ¶ 51), best reflects the inherently case-specific nature of speedy trial claims and the reality that a given factor may outweigh all of the others in one case but be of little consequence in another.
D. Summary of the Revised Speedy Trial Test
¶106 In sum, we are revising our framework for analyzing speedy trial claims so that it more closely tracks the balancing approach envisioned by the Supreme Court in Barker, Doggett, and other post-Barker cases. A court presented with a speedy trial claim is to analyze and then balance the following four factors.
¶107 Factor One: The Length of the Delay. Under Factor One, the court first ascertains whether the interval between accusation and trial is at least 200 days (irrespective of fault for the delay). If it is not, then further analysis is unnecessary, and the claim should be denied; but if the interval is at least 200 days, then the four-factor balancing test is triggered and the court must proceed with a full analysis. Second, the court considers the extent to which the delay (again, irrespective of fault for the delay) stretches beyond the 200-day trigger date. The significance of this latter determination is twofold. First, the presumption that pretrial delay has prejudiced the accused intensifies over time. Thus, the further the delay stretches beyond the trigger date, the stronger is the presumption under Factor Four that the accused has been prejudiced by the delay. Second, the State’s burden under Factor Two to justify the delay likewise increases with the length of the delay. Thus, the further the delay stretches beyond the 200-day trigger date, the more compelling the State’s justifications for the delay must be under Factor Two.
¶108 Factor Two: The Reasons for the Delay. Under Factor Two, the court first identifies each period of delay in bringing the accused to trial. The court then attributes each period of delay to the appropriate party, with any delay not demonstrated to have been caused by the accused or affirmatively waived by the accused being attributed to the State by default. Finally, the court assigns weight to each period of delay based on the specific cause and motive for the delay. Reasons for the delay may include institutional circumstances, such as overcrowded court dockets, and “valid” reasons, such as a missing witness. Both of these types of delay weigh less heavily against the State than do lack of diligence in bringing the accused to trial, which occupies a middle ground on the culpability scale, and bad-faith delay, such as a deliberate attempt to hamper the defense, which is weighed most heavily against the State. Weight is similarly assigned to acceptable and unacceptable reasons for delay caused by the accused.
¶109 The significance of Factor Two in the balancing process, therefore, is in the specific cause and culpability for each period of delay. The more delay caused by the State for “unacceptable” reasons (e.g., lack of diligence or bad-faith delay), the more likely the accused’s speedy trial right has been violated. Likewise, the more delay caused by the accused for such reasons (e.g., to avoid being brought to trial), the less likely the right has been violated.
¶110 Factor Three: The Accused’s Responses to the Delay. Under Factor Three, the court evaluates the accused’s responses to the delay-i.e., his or her acquiescence in and objections to pretrial delays. The number of instances in which the accused acquiesces in or objects to pretrial delay is not talismanic. Rather, the court’s evaluation must be based on the surrounding circumstances, such as the timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, the accused’s pretrial conduct (as that conduct bears on the speedy trial right), and so forth. The sum of this evaluation-i.e., the totality of the accused’s various responses to the delays in bringing him or her to trial-is indicative of whether he or she actually wanted a speedy trial, which in turn informs the inquiry into whether there has been a deprivation of the right. The evaluation also serves as a gauge of the weights the court should assign to the other three factors in the balancing.
¶111 Factor Four: Prejudice to the Accused. Under Factor Four, the court assesses whether the accused has been prejudiced by the delay in light of the interests that the speedy trial right was designed to protect-namely, (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern caused by the presence of unresolved criminal charges, and (iii) limiting the possibility that the accused’s ability to present an effective defense will be impaired. With respect to the first interest, the court considers whether the pretrial incarceration is “oppressive” in light of all of the circumstances of the incarceration. With respect to the second interest, the issue is whether the delay in bringing the accused to trial has unduly prolonged the disruption of his or her life or aggravated the anxiety and concern that are inherent in being accused of a crime. And with respect to the third interest, the court considers whether the delay has weakened the accused’s ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence. However, because affirmative proof of particularized prejudice is not essential to every speedy trial claim, impairment of the defense may be evaluated based on other factors in the analysis, such as the length of the delay (the greater the delay, the greater the erosion of exculpatory evidence and testimony), the accused’s responses to the delay (the more imperiled the accused’s ability to present an effective defense becomes, the more likely he or she is to complain about the delay), and the duration of the pretrial incarceration (an accused who is locked up is hindered in his or her ability to gather evidence, contact witnesses, or otherwise prepare his or her defense).
¶112 Balancing. Lastly, the court determines whether the accused has been deprived of the right to a speedy trial by balancing each of the foregoing four factors. No one factor is dispositive by itself; rather, the factors are related and must be considered together with such other circumstances as may be relevant.
¶113 For the convenience of the bench and bar, we are providing the following outline of our revised speedy trial test.
I. Factor One: The Length of the Delay
A. Is the delay long enough to trigger the four-factor balancing test?
1. When did the defendant become an accused?
2. When is the defendant’s trial date?
3. Is the interval between accusation and trial at least 200 days?
B. To what extent does the delay stretch beyond the trigger date?
1. The presumption that pretrial delay has prejudiced the accused intensifies over time; thus, as the delay gets longer, the quantum of proof that may be expected of the accused under Factor Four decreases, while the quantum of proof that may be expected of the State under Factor Four simultaneously increases.
2. The State’s burden under Factor Two to justify the delay likewise increases with the length of the delay; thus, the further the delay stretches beyond the 200-day trigger date, the more compelling the State’s justifications under Factor Two must be.
II. Factor Two: The Reasons for the Delay
A. Identify each period of delay in bringing the accused to trial.
B. Attribute each period of delay to the appropriate party.
1. The prosecution bears the burden of explaining the pretrial delays.
2. Any delay not demonstrated to have been caused by the accused or affirmatively waived by the accused is attributed to the State by default.
C. Assign weight to each period of delay based on the specific cause and culpability for the delay.
1. Bad-faith delay, such as a deliberate attempt to gain a tactical advantage or to avoid trial, weighs heavily against the party that caused it.
2. Negligence or lack of diligence in bringing the accused to trial occupies the middle ground on the culpability scale. It is weighed more lightly against the State than a deliberate attempt to hamper the defense, but it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.
3. Delay inherent in the criminal justice system and caused by circumstances largely beyond the control of the prosecutor and the accused is “institutional delay,” which is attributed to the State but weighs less heavily against the State than bad-faith delay and lack of diligence.
4. Delay for “valid” reasons, such as a missing witness or a particularly complex charged offense, is weighed least heavily of all the types of delay.
III. Factor Three: The Accused’s Responses to the Delay
A. Evaluate the accused’s responses to the delay-i.e., his or her acquiescence in and objections to pretrial delays-in light of the surrounding circumstances. Some considerations:
1. The timeliness, persistence, and sincerity of the objections
2. The reasons for the acquiescence
3. Whether the accused was represented by counsel
4. The accused’s pretrial conduct (as that conduct bears on the speedy trial right)
B. The totality of the accused’s various responses to the delays in bringing him or her to trial is indicative of whether he or she actually wanted a speedy trial, which in turn informs the inquiry into whether there has been a deprivation of the right.
C. The totality of the accused’s various responses to the delays also serves as a gauge of the weights the court should assign to the other three factors in the balancing.
IV. Factor Four: Prejudice to the Accused
A. Was the pretrial incarceration oppressive, given the circumstances of that incarceration? Some considerations:
1. Duration of the incarceration
2. The complexity of the charged offense(s)
3. Any misconduct on the part of the accused directly related to the pretrial incarceration
4. The conditions of the incarceration
B. Has the delay in bringing the accused to trial unduly prolonged the disruption of his or her life caused by the presence of unresolved criminal charges or aggravated the anxiety and concern that are inherent in being accused of a crime? Some considerations:
1. Public scorn or obloquy; damage to reputation in the community
2. Deprivation of employment
3. Drain of financial resources or economic hardship
4. Curtailment of associations
C. Has the accused’s ability to present an effective defense been impaired by the delay? Some considerations:
1. The availability of witnesses and their ability to recall accurately events related to the charged offense(s)
2. The accused’s ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence
3. The length of the delay (excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify)
4. The accused’s responses to the delay (the more imperiled the accused’s ability to present an effective defense becomes, the more likely he or she is to complain about the delay)
5. The duration of the pretrial incarceration (an accused who is locked up is hindered in his or her ability to gather evidence, contact witnesses, or otherwise prepare his or her defense)
V. Balancing
A. Given the length of the delay, the cause and culpability for each period of delay, the totality of the accused’s responses to the delay, the strength of the presumption of prejudice in the case, and the strength of the parties’ respective showings on the issue of prejudice, has the accused been deprived of his or her right to a speedy trial?
B. None of the four factors is either a necessary or a sufficient condition to the legal conclusion that the accused has been deprived of the right. Rather, the four factors must be considered together with such other circumstances as may be relevant.
E. Timing of the Motion and Ruling by the Court
¶114 We noted in Bruce, “as a practical matter, that unless a motion to dismiss for speedy trial has been made at least ten days prior to the commencement of trial, it may be difficult for the State to adequately brief the issue, and for the court to adequately consider the issue, without postponing the existing trial date.” Bruce, ¶ 57. Thus, we stated that “any delay directly attributable to a motion to dismiss based on denial of speedy trial which is filed less than ten days prior to the commencement of trial will be assigned to the defendant.” Bruce, ¶ 57; see also State v. Kipp, 1999 MT 197, ¶ 12, 295 Mont. 399, ¶ 12, 984 P.2d 733, ¶ 12 (“When a defendant files an ‘eve of trial’ motion, which raises a complex legal issue or requires an evidentiary hearing which thereby makes the original trial date impracticable, the reasonable period of delay caused thereby is attributable to the defendant.”).
¶115 The negative implication of this ten-day rule is that any delay directly attributable to a speedy trial motion that is filed ten or more days prior to the commencement of trial will be assigned to the State. This time frame, in our view, is too short and places on the State an unwarranted amount of responsibility for a trial postponement. To be sure, it is not the accused’s duty to ensure that the briefing and argument schedule proceeds in a manner that will insure that he or she is prosecuted in a timely fashion. Kipp, ¶ 14. However, due consideration of a speedy trial motion generally requires time for an evidentiary hearing and a careful analysis of the facts pursuant to the four-factor balancing test set forth above (not to mention the time required for the parties to brief the issues fully), which cannot realistically be accomplished in less than thirty days without postponing the existing trial date.
¶116 Accordingly, we are modifying Bruce’s ten-day rule such that any delay directly attributable to the filing of a speedy trial motion less than thirty days prior to the scheduled trial date should be charged to the accused. Conversely, any delay directly attributable to the filing of such a motion thirty or more days prior to the scheduled trial date should be charged to the State (as institutional delay). We believe that this rule equitably balances responsibility for any such delay and affords the court and the parties a reasonable time frame in which to address the speedy trial motion fully.
¶117 We also stated in Bruce that “once a motion to dismiss for denial of speedy trial has been made,... it [must] be ruled upon by the district court before commencement of trial.” Bruce, ¶ 57. We reaffirm this requirement and add that the court must, of necessity, enter findings of fact and conclusions of law with respect to each of the four factors and how the four factors were balanced against each other. Without these findings of fact and conclusions of law, appellate review of the court’s final disposition of the claim is, as a practical matter, impossible, and we will be forced to remand the case to the trial court in such situations.
¶118 With that, we now turn to Ariegwe’s speedy trial claim.
II. Standard of Review
¶119 A court presented with a speedy trial claim must first make factual findings and then determine whether the factual circumstances amount to a speedy trial violation. We, in turn, review the factual findings underlying the court’s speedy trial ruling to determine whether those findings are clearly erroneous. State v. Spang, 2007 MT 54, ¶ 7, 336 Mont. 184, ¶ 7, 153 P.3d 646, ¶ 7. The court’s findings of fact are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Ray v. Nansel, 2002 MT 191, ¶ 19, 311 Mont. 135, ¶ 19, 53 P.3d 870, ¶ 19. However, whether the defendant has been denied a speedy trial-i.e., whether the factual circumstances, when evaluated pursuant to the four-factor balancing test, amount to a speedy trial violation-is a question of constitutional law. Bruce, ¶ 18; Spang, ¶ 7. We review a trial court’s conclusions of law de novo to determine whether the court’s interpretation and application of the law are correct. Bruce, ¶ 18; Spang, ¶¶ 7, 32.
III. Application of the Balancing Test to Ariegwe’s Speedy Trial Claim
¶120 Although the District Court and the parties analyzed Ariegwe’s speedy trial motion in accordance with the approach articulated in Bruce, which we have now clarified and modified in several significant respects, we find it unnecessary to vacate the court’s ruling and remand this case for reconsideration in light of the clarifications and modifications set forth above. See e.g. State v. Hardaway, 1998 MT 224, ¶ 13, 290 Mont. 516, ¶ 13, 966 P.2d 125, ¶ 13 (remanding for reconsideration in light of Bruce). The factual record before us, which includes a complete transcript of the parties’ arguments at the hearing on Ariegwe’s motion, is well-developed, thus enabling us to evaluate his speedy trial claim pursuant to the revised speedy trial test. Moreover, because the process by which the four factors are to be analyzed and balanced under our revised speedy trial test is substantially different from our approach under the Bruce test, we believe that it would be helpful and appropriate to illustrate that process for the benefit of the courts and the litigants who will be applying the test in future cases. Cf. Bruce, ¶¶ 59-75 (applying the approach articulated therein to the facts of that case). Accordingly, we will proceed with an analysis of Ariegwe’s speedy trial claim.
A. Analysis of the Four Factors
1. Factor One: The Length of the Delay
¶121 The threshold question is whether the interval between accusation and Ariegwe’s scheduled trial date (March 1, 2004) is at least 200 days, thereby triggering further speedy trial analysis. The District Court found the interval to be 388 days; however, this finding was based on an incorrect determination of when the speedy trial clock began to run. Although the court’s error does not change the outcome under this threshold question (the court ultimately concluded, correctly, that further speedy trial analysis was required), it is still necessary, for purposes of the analysis below, to ascertain the correct length of the delay.
¶122 Relying on Bruce, ¶ 55 (‘We will first consider the length of delay from the time charges are filed . . . until the defendant’s trial date.” (emphasis added)), the District Court measured from the date the State filed the original Information (February 7, 2003). However, as clarified above:
[T]he protection afforded by the [speedy trial] guarantee is activated when a criminal prosecution has begun and extends to those persons who have been formally accused or charged in the course of that prosecution whether that accusation be by arrest, the filing of a complaint, or by indictment or information.
State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957-58 (1981) (emphasis added). Here, Ariegwe became an “accused” for speedy trial purposes on January 18,2003, when he was arrested in relation to the charges subsequently filed on February 7. Thus, the interval between accusation and trial was 408 days.
¶123 The second inquiry under Factor One is the extent to which the delay stretches beyond the 200-day trigger date. Here, the delay in bringing Ariegwe to trial stretched 208 days beyond the trigger date-more than twice the amount of delay that is considered sufficiently prejudicial to trigger the speedy trial test. As a result, the State must provide particularly compelling justifications for the delay under Factor Two; and under Factor Four, the State must make a highly persuasive showing that Ariegwe was not prejudiced by the delay, while the quantum of proof that may be expected of Ariegwe under this factor is correspondingly lower.
2. Factor Two: The Reasons for the Delay
¶124 The issue under Factor Two is whether the justifications proffered by the State for the various periods of delay weigh for or against the conclusion that Ariegwe was deprived of his right to a speedy trial. To make this determination, it is necessary to identify each period of delay in bringing Ariegwe to trial, to attribute each period of delay to the State or Ariegwe, and to assign appropriate weight to each period of delay based on the specific cause and culpability.
¶125 First Trial Setting: The first trial date set in this case was May 13, 2003, which the District Court selected at Ariegwe’s February 20, 2003 arraignment. This constitutes a 115-dav delay (measured from January 18,2003, the date on which Ariegwe became an accused). The District Court attributed one of these days to Ariegwe because he had filed a request for substitution of judge on February 18, 2003. However, the question here is one of “delay,” and Ariegwe’s request did not result in a later trial date. Thus, all 115 days are attributable to the State. This delay, however, is of the type inherent in the criminal justice system due to the court’s docket and built-in requirements such as reciprocal discovery, the omnibus and status hearings, and pretrial motions. As such, the 115 days constitute institutional delay.
¶126 Second Trial Setting: The second trial date was September 15, 2003, which added an additional 125 days of delay. The District Court charged 20 days of this delay to Ariegwe “as a result of the Court’s scheduling accommodation of defense counsel’s summer vacation.” The remaining 105 days were charged to the State “because it was caused by the State’s failure to timely provide discovery to the defendant”-a finding that is supported by substantial credible evidence in the record. Specifically, the prosecution was twice ordered to comply with § 46-15-322, MCA (requiring the prosecutor, upon request, to make enumerated items within his or her control available to the defendant for examination and reproduction)-first in the District Court’s February 20,2003 Order Setting Trial Date, Requiring Discovery, and Setting Omnibus Hearing, and second in the court’s March 19, 2003 Omnibus Hearing Memorandum and Order. However, the prosecution did not fully comply with these discovery orders. Thus, in his Pretrial Motions filed April 15,2003, Ariegwe stated that he had been unable “to carry out [his] pretrial factual and legal investigation and otherwise prepare for trial.” Of particular concern was the hard drive of his computer, which he believed might contain exculpatory evidence. In response, the prosecutor explained that while the computer had been seized at the time of the initial search of Ariegwe’s living quarters (on January 18, 2003), a detective had not been assigned to this case. “And so rather than sending the computer over to Helena to the Department of Justice, it was sitting in Evidence.”
¶127 This justification does not suggest a deliberate attempt to delay the trial in order to hamper Ariegwe’s defense; rather, it suggests a combination of understaffing and lack of diligence on the part of the State. Such delay occupies the middle ground on the culpability scale, though the lack of diligence is clearly “on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun,” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693.
¶128 Accordingly, of the 125 days of delay resulting from the second trial setting, 105 days are attributable to the State as a result of understaffing and lack of diligence and 20 days are attributable to Ariegwe as a result of the District Court’s scheduling accommodation of defense counsel’s summer vacation.
¶129 Third Trial Setting: The third trial date was October 27,2003, which added an additional 42 days of delay. This postponement was the result of the prosecutor’s September 9, 2003 motion to continue and, thus, was attributed by the District Court to the State. As for categorizing this delay (e.g., as bad-faith, lack of diligence, institutional, or for valid reasons), the motion does not disclose the particular reason for the prosecutor’s request. A postponement brought about by a motion that does not reveal the basis therefor is presumed to be unjustified and is weighed heavily against the proponent, unless evidence elsewhere in the record establishes otherwise. See Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir. 1975) (assuming on a record that did not reveal the reason for the delay that there was no justifiable reason and, accordingly, weighing that delay heavily against the state). Here, the record reveals that the motion was necessitated by the State’s delay in delivering evidence for testing at the crime lab. Thus, the 42 days are attributable to the State as the result of lack of diligence.
¶130 Fourth Trial Setting: The fourth trial date was November 24, 2003, which added an additional 28 davs of delay. This postponement was the result of the prosecutor’s October 10,2003 motion to continue, which she filed on the ground that “the evidence in this matter is currently being tested at the Montana State Crime Laboratory, and... the testing will not be completed in time for the current trial setting.” This delay, which the District Court charged to the State, is institutional in nature.
¶131 Fifth Trial Setting: The fifth trial date was December 8, 2003, which added an additional 14 davs of delay. This postponement was the result of a sua sponte order by the District Court due to a conflict in the court’s calendar. As such, it is institutional.
¶132 Sixth Trial Setting: The sixth trial date was January 5, 2004, which added an additional 28 davs of delay. This postponement was the result of Ariegwe’s November 25, 2003 motion to continue, which he filed on the ground that the parties were still waiting for test results from the crime lab. The delay, which the District Court correctly charged to the State, is institutional.
¶133 Seventh Trial Setting: The seventh, and final, trial date was March 1, 2004, which added an additional 56 davs of delay. This postponement was the result of Ariegwe’s December 22, 2003 motion to continue, which he filed on the grounds that he had not yet received the trace evidence report and that he needed time to review the serology and DNA report, which he had received four days earlier. The District Court vacated the January 5,2004 trial date and scheduled a status hearing for January 22,2004. At that hearing, defense counsel stated that he had received all crime lab reports, and the court and the parties then agreed on the March 1 trial date. In attributing this period of delay, the District Court determined that the State’s failure to produce the crime lab reports in a timely manner had necessitated Ariegwe’s motion to continue. Thus, the court attributed the 56 days to the State as institutional delay.
¶134 Summary: In sum, the interval between accusation and trial in this case was 408 days. Of that, 241 days are attributable to the State as institutional delay, 42 days are attributable to the State due to lack of diligence, and 105 days are attributable to the State as delay caused in part by understaffing and in part by lack of diligence, for a total of 388 days. Ariegwe is responsible for the remaining 20 days, which were the result of the District Court’s scheduling accommodation of defense counsel’s summer vacation.
¶135 As discussed under Factor One, the State was required to provide particularly compelling justifications for the delay in this case, given the extent to which the delay stretched beyond the 200-day trigger date. The foregoing analysis establishes, however, that 95% of the delay in this case is attributable to the State. Significantly, more than half of the State’s delay was institutional in nature (i.e., due to circumstances largely beyond the prosecutor’s control), but that fact takes the State only so far, given that the primary burden to assure that cases are promptly brought to trial is “on the courts and the prosecutors,” Barker, 407 U.S. at 529, 92 S. Ct. at 2191. In this regard, a significant portion of the delay here was necessitated, according to the District Court, by “the State’s failure to timely provide discovery to the defendant” and “the State’s failure to timely produce the [crime lab] reports.” The fact that evidence seized from Ariegwe’s living quarters was left “sitting in Evidence” for several months, rather than being promptly sent to the crime lab for analysis, is inconsistent with a diligent prosecution of this case. For these reasons, we conclude that Factor Two weighs in favor of the conclusion that Ariegwe was deprived of his right to a speedy trial.
3. Factor Three: The Accused’s Responses to the Delay
¶136 The focus under Factor Three is on the accused’s responses to the delay, which are evaluated based on the surrounding circumstances. The totality of the accused’s responses-which is indicative of whether he or she actually wanted a speedy trial-is then balanced with the other three factors in the overall balancing.
¶137 During the time period at issue here, however, Ariegwe was operating under our Bruce test, which required only that the right to a speedy trial be “invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy trial.” Bruce, ¶ 57. There is no suggestion in Bruce’s articulation of Factor Three that a court may infer, based on the timing of the accused’s assertion of the right and the accused’s other responses to pretrial delays, that he did or did not want a speedy trial. Indeed, we stated that
there is no magical time for assertion of the right to a speedy trial which should be weighed more favorably to the defendant than some other time. So long as the defendant asserts his or her right to a speedy trial by a motion to dismiss on speedy trial grounds filed prior to the time of trial, we conclude that the defendant has satisfied the third-prong of the Barker test and that further analysis of that prong is not only unnecessary, but inappropriate.
Bruce, ¶ 48.
¶138 For these reasons, any inference that Ariegwe did or did not want a speedy trial, given the timing of his motion to dismiss on speedy trial grounds and his other responses to pretrial delays, would be of questionable accuracy. On the other hand, as explained above, we are applying the revised speedy trial test to the facts of this case to illustrate the process for the benefit of the courts and the litigants who will be applying the test in future cases, and omitting an analysis of revised Factor Three would undermine that goal. Under these circumstances, therefore, we will proceed with a full analysis of Factor Three in this case; however, we will accord little weight to this factor in the overall balancing, given that Ariegwe was operating under the mandates of Bruce.
¶139 We begin by noting that Ariegwe filed his motion to dismiss on January 26,2004 (35 days before trial). However, as a general rule the mere fact that the accused filed a motion to dismiss on speedy trial grounds sometime prior to the commencement of trial is itself of little probative value on the question of whether the right has been violated. Rather, we must view the assertion of the right in the context of the case as a whole.
¶140 In this regard, we observe that Ariegwe’s motion was filed on the 373rd day of the delay in this case. (Actually, he first asserted his speedy trial right four days earlier at the January 22, 2004 status hearing and indicated that a written motion would be forthcoming.) If not for the fact that he was operating under the mandates of Bruce, Ariegwe’s waiting this long past the 200-day trigger date to assert the right would suggest that he was not particularly interested in being brought to trial sooner.
¶141 Other facts in the record, however, support a contrary conclusion. For instance, during the period immediately following his arraignment, Ariegwe requested a number of discoverable items from the State (e.g., his computer hard drive, certain physical evidence, photographs taken by the police, medical records concerning the examination and treatment of K.M., the tape-recording of the conversation between K.M. and R.K., and telephone records); and when the State did not respond to these requests, which Ariegwe had made “on an informal basis,” he filed his April 15, 2003 Pretrial Motions asking the court to order the State to provide the items. Such persistence in the early stages of this case appears elsewhere in the record, suggesting that Ariegwe sought to move the case along, not to delay it. Indeed, as noted under Factor Two, he was responsible for only 20 days of the 408-day delay in this case, which indicates no stonewalling on his part. Furthermore, although Ariegwe appears to have acquiesced in some of that delay, he explained in his affidavit attached to his motion to dismiss as follows:
I do understand that my attorneys have on three occasions requested trial be delayed. To the extent that I was consulted at all, I only consented to these delays because my attorneys convinced me delay, no matter how painful to me personally, was necessary to obtain and have the opportunity to review what might be essential evidence.
Given these circumstances, it appears that Ariegwe wanted to be brought to trial sooner rather than later.
¶142 In Barker, the Supreme Court observed:
The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.
Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93. Here, Ariegwe did “complain” about the State’s delay in providing discovery (which necessitated the first postponement), but no additional complaints appear in the record until the January 22, 2004 status hearing-the 369th day of the delay-when defense counsel indicated that he would be filing a motion to dismiss on speedy trial grounds. While these facts would be entitled to significant weight in a case where the accused was operating under the revised speedy trial test, we accord them little weight here since Ariegwe was operating under the Bruce test. We simply observe that the totality of Ariegwe’s various responses to the pretrial delays in this case, including his apparent reluctance to acquiesce in delay notwithstanding the advice of counsel, is consistent with a desire to be brought to trial. Thus, we conclude that Factor Three weighs slightly in favor of the conclusion that Ariegwe was deprived of his right to a speedy trial, though we will accord this factor little weight in the overall balancing.
4. Factor Four: Prejudice to the Accused
¶143 Lastly, the issue under Factor Four is whether Ariegwe was prejudiced as a result of the delay in bringing him to trial. As explained above, a presumption that the accused has been prejudiced by the delay arises on the 200-day trigger date for speedy trial analysis (at which point it is minimal) and intensifies over time. Thus, while both parties should come forward with evidence on the question of prejudice, the court must weigh each party’s evidence (or lack thereof) in light of this intensifying presumption. Specifically, as the delay gets longer, the necessary showing by the accused of particularized prejudice decreases while the necessary showing by the State of no prejudice simultaneously increases. For purposes of this case, we concluded under Factor One that the presumption had intensified to the point at which the State must make a highly persuasive showing that Ariegwe was not prejudiced by the delay, while the quantum of proof that may be expected of Ariegwe under this factor is correspondingly lower.
¶144 Prejudice is assessed in light of the interests that the speedy trial right was designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern caused by the presence of unresolved criminal charges, and limiting the possibility that the accused’s ability to present an effective defense will be impaired. Here, the extent of Ariegwe’s pretrial incarceration was four days following his arrest, which he conceded in the District Court was not oppressive. Likewise, in response to the State’s argument that all of the potential evidence in the case had been preserved and that all of Ariegwe’s potential witnesses were available to testify at trial, he conceded that he could not point to any specific impairment of his ability to present an effective defense (though he did point out that a certain amount of impairment-e.g., dimming memories-must be presumed given the length of the delay).
¶145 Accordingly, Ariegwe emphasized the interest in minimizing anxiety and concern. In an affidavit attached to his motion to dismiss, he described numerous consequences that had flowed from the existence of the charges against him. Specifically, his being accused of sexual relations with a minor had caused tension between him and his ex-wife (with whom he shared a residence), and they had sought counseling as a result. Their oldest child had been taunted at school. Ariegwe had resigned his position as a counselor to troubled youth at A.W.A.R.E., Inc. because the charges were “so especially humiliating due to the nature of my work.” He stated that the pendency of the charges was precluding him from employment in his chosen field as a youth counselor and was making employment opportunities in other fields uncertain. Lastly, acknowledging that “all defendants suffer at least some distress,” he asserted that his “is particularly acute in that I live with not only the prospect of imprisonment and disqualification from my chosen employment, I also face deportation [to Nigeria]” and “loss of the society of my children.”
¶146 Ariegwe attached two supporting exhibits to his affidavit. One was a December 15, 2003 letter from a licensed clinical social worker and board certified psychotherapist, who stated that Ariegwe was experiencing “moderate to at times a severe level of anxiety.” The other was a November 22, 2003 letter from Ariegwe’s ex-wife, who stated that she had been having trouble sleeping at night, was fearful of what people were thinking about her and her family, and was worried about the effects the case was having on her children. She also testified to this effect at the speedy trial hearing.
¶147 Unquestionably, the experiences described by Ariegwe and his ex-wife constitute disruptions to his life, which in turn created anxiety and concern in him and his family. However, the speedy trial guarantee serves “to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges,” MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502 (emphasis added), not to eliminate the disruption altogether. Thus, the question here is whether the delay in bringing Ariegwe to trial unduly prolonged the disruption or aggravated the anxiety and concern that are inherent in being accused of a crime. Furthermore, as the prosecutor correctly pointed out during the speedy trial hearing, the focus is on the anxiety and concern experienced by Ariegwe, to whom the speedy trial right applies; the anxiety and concern experienced by his family are relevant only to the extent that they affected the anxiety and concern experienced by Ariegwe.
¶148 In response to Ariegwe’s motion and affidavit, the State took the position that the anxiety and concern cited by Ariegwe were not caused by the delay in bringing him to trial. For instance, the prosecutor argued that Ariegwe’s decision to resign his position as a youth counselor was due to the nature of the charges against him, which he had characterized as “especially humiliating.” Likewise, she contended that his concern about a future devoid of contact with his children was due to the possibility that he would be deported upon conviction, not the delay in bringing him to trial. She acknowledged that the delay may have contributed to the strain on his relationship with his ex-wife, but she opined that this strain was due more to the nature of the charged offenses than to the length of the delay.
¶149 In response to the prosecutor’s argument, Ariegwe pointed out that although some of the anxiety and concern articulated in his affidavit was either inherent in being charged with a crime or due to the nature of the charged offenses, “there’s a difference between being subject to these kinds of stressors in one’s life for a period of 90 days or 180 days ... and being subjected to those stresses for a period of 380 days.” The District Court, however, ultimately agreed with the State, finding that “the primary source” of Ariegwe’s anxiety and concern was the nature of the charged offenses and that while the delay in bringing him to trial had “contributed somewhat” to Ariegwe’s anxiety and concern, “it did not substantially, aggravate it ... to the extent warranting dismissal on that factor alone.”
¶150 Ariegwe assigns error to the District Court’s analysis on two grounds. First, he claims that the court erroneously required him “to apportion his anxiety and concern between the nature of the offense charged, and the delay.” Such apportionment, however, is necessary, given that the speedy trial guarantee serves to shorten the disruption of life caused by the presence of unresolved criminal charges, not to make the criminal charges themselves less “humiliating” or unsettling. On the other hand, Ariegwe is correct that anxiety and concern caused by the nature of the charged offenses may be unduly prolonged in a given case. But he has not demonstrated that his anxiety and concern were unduly prolonged in this case. Accordingly, we conclude that the District Court’s apportionment of Ariegwe’s anxiety and concern is not clearly erroneous.
¶151 Second, Ariegwe claims that the District Court erroneously required him to show “a demonstrable, direct effect” that the delay had on his anxiety and concern and his ability to present an effective defense. Relying on Doggett, he argues that “a requirement that the accused demonstrate actual, provable prejudice is inappropriate.” This interpretation of Doggett, however, is too broad. It is true that “consideration of prejudice is not limited to the specifically demonstrable,” that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify,” and that “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692, 2693. However, as explained above, the extent to which an accused may rely on presumptive prejudice depends on the extent to which the delay extends beyond the 200-day trigger date. In the case at hand, while the presumption of prejudice did operate in Ariegwe’s favor by requiring the State to make a highly persuasive showing that he had not been prejudiced by the delay, the presumption was not so strong that Ariegwe was relieved entirely of making a showing of some particularized prejudice. Accordingly, we conclude that the District Court did not err in requiring a showing by Ariegwe of some demonstrable prejudice.
¶152 Proceeding, then, with an evaluation of Factor Four, we conclude that the State made the required highly persuasive showing that Ariegwe was not prejudiced by the delay in bringing him to trial. First, the State demonstrated, and Ariegwe conceded, a complete absence of oppressive pretrial incarceration. Second, the State demonstrated that Ariegwe’s ability to present an effective defense had not been demonstrably impaired. Third, the delay in this case somewhat aggravated the anxiety and concern that are inherent in being accused of a crime; however, the State demonstrated, and the District Court found, that “the primary source” of Ariegwe’s anxiety and concern was the nature of the charged offenses. Taking these three considerations together, we conclude that the State’s showing outweighs the presumption of prejudice established under Factor One and that Factor Four, therefore, weighs against the conclusion that Ariegwe was deprived of his right to a speedy trial.
B. Balancing
¶153 A court assessing a speedy trial claim must balance the four factors based on the facts of the particular case and the weights assigned to each factor. None of the factors is dispositive by itself; rather, the factors are related and must be considered together with such other circumstances as may be relevant. But because the right to a speedy trial is a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
¶154 Here, Factor One weighs in Ariegwe’s favor. It establishes that a significant delay of 408 days occurred in this case. Likewise, Factor Two weighs in Ariegwe’s favor, given that 95% of the 408-day delay was attributable to the State and that the record reflects a significant lack of diligence on the part of the State in providing discovery and sending evidence to the crime lab in a timely manner. Factor Three weighs slightly in Ariegwe’s favor; however, we are according this factor relatively little weight in the overall balancing, given that Ariegwe was operating under the Bruce test during the time period at issue here and, thus, the inferences we have drawn based on his responses to the pretrial delays in this case are of questionable accuracy. We simply observe that the totality of Ariegwe’s various responses is consistent with a desire to be brought to trial. Finally, Factor Four weighs in the State’s favor. Although the delay in this case somewhat aggravated the anxiety and concern that are inherent in being accused of a crime, the State made a highly persuasive showing that Ariegwe’s anxiety and concern were due primarily to the nature of the charged offenses rather than to the delay in bringing him to trial.
¶155 We conclude that the State’s highly persuasive showing of no prejudice (Factor Four) outweighs the extent of the delay (Factor One) and the State’s culpability in causing the delay (Factor Two). We further conclude that although the totality of Ariegwe’s responses to the pretrial delays in this case is consistent with a desire to be brought to trial (Factor Three), the relatively little weight we have assigned to this factor is not enough to tip the scale in Ariegwe’s favor. We therefore affirm the District Court’s conclusion that Ariegwe was not deprived of his right to a speedy trial.
¶156 Issue Two. Did the District Court abuse its discretion in denying Ariegwe’s motion for a new trial?
I. Background
¶157 Ariegwe contends that the District Court abused its discretion in not granting his motion for a new trial. The basis of that motion was that (1) defense counsel’s failure to object to allegedly improper hair comparison testimony by one of the State’s experts during trial and (2) the prosecutor’s inaccurate representations of certain scientific evidence during closing arguments had denied Ariegwe a fair and impartial trial. Although the motion was specifically “premise[d]... on the conduct of both defense counsel and the prosecutor,” Ariegwe has not renewed his claim based on defense counsel’s failure to object to the hair comparison testimony. Accordingly, we will focus only on the prosecutor’s closing arguments.
¶158 During trial, the State called Michelle Griffin, a forensic scientist specializing in serology and DNA analysis at the State Crime Lab. Griffin had examined a blanket seized from Ariegwe’s bed and found eight stains on the blanket. One of these stains tested positive for amylase (an enzyme found in saliva), and a subsequent DNA analysis revealed the presence of multiple contributors to the stain, two of whom could have been K.M. and Ariegwe. More specifically, Griffin testified that K.M. and Ariegwe “cannot be excluded as contributors to that mixture” and that “there is data there present [in the stain] not associated with [K.M. and Ariegwe].”
¶159 Paraphrasing Griffin’s testimony during closing argument, the prosecutor stated that the mixture of DNA found in the saliva stain, from which Ariegwe and K.M. could not be excluded,
is consistent with the Defendant performing oral sex with [K.M.] on that bed, and body fluids mixing and running onto that blanket. And that’s what they found. Their genetic material was found on that bed, mixed together. Right in the area where [K.M.] says this took place. [Emphasis added.]
Defense counsel did not object at this point to the prosecutor’s misstatement. Rather, he pointed out during his closing argument that Griffin had testified only that K.M. and Ariegwe “cannot be excluded” as contributors to the mixture of DNA found in the saliva stain.
¶160 During her rebuttal, however, the prosecutor again suggested that KM.’s and Ariegwe’s DNA had, in fact, been found mixed together on the blanket. Specifically, she argued that in order to buy Ariegwe’s story, the jury would have to believe that 15-year-old K.M. was “so savvy and so smart” that she knew to plant forensic evidence to support a claim of rape. “It’s ludicrous. She . .. knew that she needed to plant some of the Defendant’s saliva with some of her vaginal fluid on that blanket in the very spot-” At this point, defense counsel did object: “That is not supported by testimony, by any evidence, as to the source of the DNA that they found. There’s no evidence. There was no testimony as to any vaginal fluid.” The court sustained the objection. Notwithstanding, the prosecutor then continued: “[K.M.] knew that she had to place some form of DNA substance of hers mixed in with some DNA substance of his on the blanket, at the very place where saliva is found, and she claims oral sex occurred.”
¶161 Following the prosecutor’s rebuttal, the judge called counsel to the bench for a sidebar conference regarding his ruling on defense counsel’s objection. The judge stated that the jury had probably not heard him sustain the objection, because he had done so “under [his] breath.” Since he wanted to make sure that there were no errors in the case, the judge indicated that he would instruct the jury that there was no evidence that Ariegwe’s DNA had been found in any of K.M.’s vaginal fluid. The prosecutor and defense counsel agreed, and the judge then instructed the jury as follows:
Before we proceed with deliberations, jurors, Mr. Sehestedt made an objection during Miss Weber’s rebuttal argument that I sustained. I did that almost under my breath. I’m not sure that that was audible to you.
And so that there’s no confusion in this case, I’m telling you for the record right now that there is no evidence in this case that the Defendant’s DNA was found in any vaginal fluid of the alleged victim in this case.
Immediately thereafter, the jurors began their deliberations.
¶162 In his motion for a new trial, Ariegwe argued that “[w]hile prosecutors have the right to suggest inferences-identified as such-which they wish the jury to draw from the evidence, they have no right to go beyond the record or make greater the weight of the evidence presented.” He asserted that the prosecutor had done so in this case by making “inaccurate and untrue representations about the evidence.”
¶163 The District Court agreed. In its order on Ariegwe’s motion, the court observed that “the State’s counsel did in fact improperly and inaccurately represent to the jury that ‘[t]heir genetic material was found on that bed, mixed together’ ” (alteration in original). The court further observed that “[t]he State’s counsel then compounded the problem during rebuttal argument” when she suggested that K.M.’s vaginal fluid and Ariegwe’s saliva had been found mixed together on the blanket. However, the court noted that it had, sua sponte, given a curative instruction and that Ariegwe had not requested any further clarification or curative instruction. Accordingly, the court concluded that “to the extent that State’s counsel improperly or erroneously characterized the evidence to the jury during closing arguments, the error was contemporaneously cured by the Court’s curative instruction.”
II. Standard of Review
¶164 Section 46-16-702(1), MCA, provides that “[following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.” Our standard of review of a trial court’s ruling on a motion for a new trial depends on the basis of the motion. See Giambra v. Kelsey, 2007 MT 158, ¶¶ 24-27, 338 Mont. 19, ¶¶ 24-27, 162 P.3d 134, ¶¶ 24-27 (clarifying that our standard of review of a trial court’s ruling on a motion for a new trial based on insufficiency of the evidence is de novo, not manifest abuse of discretion, given that the trial court’s conclusion as to whether sufficient evidence exists to convict is ultimately an analysis and application of the law to the facts, not a matter of discretion). Here, the basis of the new trial motion is that the prosecutor’s inaccurate representations of certain evidence during closing arguments denied Ariegwe a fair and impartial trial. The analysis of this claim entails an evaluation of the prejudicial effect of the inaccurate representations and the remedial value of the court’s curative instruction. The trial judge, having been present throughout the course of the trial and having observed the jurors firsthand, is in a better position than are we to conduct such an evaluation. We thus will review the District Court’s ultimate determinations that Ariegwe was not denied a fair and impartial trial and that a new trial, therefore, was not required in the interests of justice for abuse of discretion. See State v. Goettle, 253 Mont. 111, 113, 831 P.2d 595, 596-97 (1992); State v. Staat, 251 Mont. 1, 9-10, 822 P.2d 643, 648-49 (1991); cf. State v. Dubois, 2006 MT 89, ¶¶ 57-61, 332 Mont. 44, ¶¶ 57-61, 134 P.3d 82, ¶¶ 57-61. In order to establish that the court abused its discretion, Ariegwe must demonstrate that the court acted arbitrarily without conscientious judgment or exceeded the bounds of reason and, further, that the court’s abuse of discretion was prejudicial. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, ¶ 17, 134 P.3d 45, ¶ 17; § 46-20-701(1), MCA.
III. Discussion
¶165 In light of the District Court’s finding that the prosecutor had “improperly and inaccurately” represented to the jury that KM.’s and Ariegwe’s DNA had been found “mixed together” on the blanket, Ariegwe focuses on the issue of whether he was prejudiced by the inaccurate representations. In this regard, he argues that KM.’s testimony alone could not have carried the State’s case. For one thing, the jury acquitted him of sexual intercourse without consent, which in his view indicates that the jurors did not fully credit KM.’s testimony. In addition, he points to the following argument by the prosecutor during her rebuttal argument:
[L]adies and gentlemen, this is not a he said, she said case. You don’t need to rely only on [KM.’s] testimony in this case. You have photographic evidence that supports what she told the police. You have hair evidence. You have fiber evidence. You have DNA saliva evidence. You have physical evidence of injury and you have psychological evidence of injury, all of which support [K.M.’s] version of what happened on that day.
Given this argument and his acquittal on the charge of sexual intercourse without consent, Ariegwe contends that the forensic expert’s testimony “played a crucial part in the state’s case” and that the prosecutor’s inaccurate representations about “mixed” DNA, therefore, prejudiced his right to a fair and impartial trial.
¶166 The prosecutor’s inaccurate representations, however, were addressed by the District Court in its curative instruction to the jury, and we have said that “[t]he potential prejudicial effect of improper arguments may be cured when the jury has been admonished not to regard those statements as evidence,” State v. Gladue, 1999 MT 1, ¶ 31, 293 Mont. 1, ¶ 31, 972 P.2d 827, ¶ 31. Thus, the specific issue here is whether the court’s instruction was not sufficient to cure any prejudice that resulted from the misstatements about “mixed” DNA.
¶167 In this regard, Ariegwe contends that “[i]n light of the repeated representations in the state’s closing, one curative instruction, following a ruling on an objection which the judge himself was unsure the jury even heard, cannot be said, with confidence, to have remedied the problem.” In response, the State contends that by instructing the jury that “there is no evidence in this case that the Defendant’s DNA was found in any vaginal fluid of the alleged victim in this case,” the court’s instruction actually “aided” Ariegwe’s defense, given that he was acquitted of the charge of sexual intercourse without consent. At the very least, the State argues, the court did not abuse its discretion in denying Ariegwe’s motion on the ground that the instruction cured the prosecutor’s error.
¶168 We agree with the State’s latter point. As noted above, the District Court reasoned in its order denying Ariegwe’s motion that “to the extent that State’s counsel improperly or erroneously characterized the evidence to the jury during closing arguments, the error was contemporaneously cured by the Court’s curative instruction.” The record supports this conclusion, as does the fact that the jury is presumed to have followed the court’s instruction. See State v. Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993) (“It is a well recognized principle of law that juries are presumed to follow the law as given them.”); State v. Long, 2005 MT 130, ¶ 25, 327 Mont. 238, ¶ 25, 113 P.3d 290, ¶ 25 (“[T]he jury cannot be presumed to ignore their duties to respect the instructions of the court.”). Accordingly, applying our standard of review to the court’s ruling on Ariegwe’s motion for a new trial, we hold that he has not demonstrated that the court acted arbitrarily without conscientious judgment or exceeded the bounds of reason in denying that motion.
¶169 Before concluding this discussion, we note Ariegwe’s brief argument that he was also prejudiced by the prosecutor’s misstatement of testimony regarding blanket fibers found in K.M.’s underwear. Alice Ammen, an expert in trace hair and fiber examination, testified on direct examination that it was “highly probable” that KM.’s underwear had come in contact with the blanket recovered from Ariegwe’s bed. However, Ammen acknowledged on cross-examination that it was “entirely possible” that blanket fibers on K.M.’s outer garments-her socks, jeans, sweater, and blouse-had transferred to KM.’s underwear when all of these items were placed together in a pile at KM.’s house following the incident. Furthermore, on redirect examination, Ammen would only say that the number of blanket fibers found on KM.’s underwear was “more indicative” of direct transfer than indirect transfer. During her rebuttal argument, however, the prosecutor stated: “The cross-contamination issue was ruled out by Alice Ammen. She told you that the fiber transfer in [K.M.’s] underwear was direct.” Ariegwe objected that these statements were not supported by the evidence, but the court overruled the objection.
¶170 Ariegwe now argues that he was prejudiced by the prosecutor’s incorrect statements concerning fiber cross-contamination and by the District Court’s failure to sustain his objection. Yet, Ariegwe did not make this argument in his motion for a new trial. (He did mention Ammen’s testimony regarding the fibers, but he did not fist the prosecutor’s misstatements of that testimony as a basis for a new trial, and the District Court, therefore, did not address it.) Accordingly, the prosecutor’s statements concerning fiber cross-contamination are not relevant in determining whether the District Court abused its discretion in denying Ariegwe’s motion.
¶171 In sum, we conclude that the District Court did not abuse its discretion when it denied Ariegwe’s motion for a new trial.
¶172 Issue Three. Is the District Court’s restitution order illegal?
I. Background
¶173 The District Court found that as a result of Ariegwe’s offenses, K.M. and her family had sustained a pecuniary loss of $3,332.68 due to uninsured medical, counseling, and related travel expenses; that the Montana State Crime Victims Compensation Unit had incurred costs in the amount of $38.40 as partial compensation to K.M. and her family; and that K.M. and her family had incurred medical and counseling expenses that were covered by EBMS Insurance Co. in the amount of $10,863.58. The court, therefore, ordered Ariegwe to pay restitution to these victims in the specified amounts. In so doing, however, the court acknowledged that it had no information regarding Ariegwe’s financial resources and future ability to pay restitution. For this reason, Ariegwe contends that the restitution requirement is illegal.
II. Standard of Review
¶174 We review criminal sentences that include at least one year of actual incarceration for legality only. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017, ¶ 22. The term “legality” in this context signifies that “we will not review a sentence for mere inequity or disparity.” State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d 521, ¶ 8. Rather, our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41; State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, ¶ 12, 112 P.3d 1001, ¶ 12, whether the sentence falls within the parameters set by the applicable sentencing statutes, State v. Seals, 2007 MT 71, ¶ 7, 336 Mont. 416, ¶ 7, 156 P.3d 15, ¶ 7; State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes, see State v. Pence, 273 Mont. 223, 231, 902 P.2d 41, 46 (1995); State v. Pritchett, 2000 MT 261, ¶ 7, 302 Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7; State v. Shults, 2006 MT 100, ¶ 34, 332 Mont. 130, ¶ 34, 136 P.3d 507, ¶ 34.
¶175 We have characterized this “legality” standard more generally as reviewing for correctness. See State v. Megard, 2006 MT 84, ¶ 16, 332 Mont. 27, ¶ 16, 134 P.3d 90, ¶ 16 (“This Court reviews a district court’s imposition of sentence for legality only. The question is one of law and the determination is whether the district court interpreted the law correctly.” (citation omitted)); State v. Sprinkle, 2000 MT 188, ¶ 6, 300 Mont. 405, ¶ 6, 4 P.3d 1204, ¶ 6 (‘We review the district court’s application of the sentencing statutes to determine whether the district court was correct.”). This determination is a question of law and, as such, our review is de novo. Seals, ¶ 7.
III. Discussion
¶176 Asa preliminary matter, we will address the State’s argument that Ariegwe should not be allowed to challenge the District Court’s restitution order on appeal. The State claims that Ariegwe “refused to cooperate [with the probation and parole officer who prepared the presentence investigation report] and therefore he cannot now benefit from his own wrong.” The State cites no support for this argument in the pertinent statutes, but instead relies on Sikora v. Sikora, 160 Mont. 27, 30-33, 499 P.2d 808, 810-11 (1972), where we held that a surviving widow, who had pleaded guilty to the voluntary manslaughter of her husband, could not benefit from her wrongful act and share in his estate.
¶177 As Ariegwe points out, however, the State’s argument is factually incorrect. When the probation and parole officer arrived at the jail to interview Ariegwe, he simply stated that he would like to consult with his attorney before meeting with the officer. He was aware that his motion for a new trial was pending at the time, and he explained that he had been trying to get a hold of his attorney for four weeks but had been unable to do so. On this record, we cannot agree with the State’s assertion that Ariegwe “refused to cooperate” with the officer. Furthermore, we have been presented with no authority for the proposition that an offender is not entitled to consult with his or her attorney before meeting with the probation and parole officer. We therefore reject the State’s contention that Ariegwe should be precluded from challenging the District Court’s restitution order.
¶178 The sentencing statutes in effect at the time of the commission of the offense control as to the possible sentence. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, ¶ 16, 113 P.3d 297, ¶ 16. Ariegwe committed the crimes of attempted sexual intercourse without consent and unlawful transactions with children on January 17, 2003. Thus, the 2001 sentencing statutes apply.
¶179 Section 46-18-201(5), MCA (2001) provides that “if the sentencing judge finds that the victim of the offense has sustained a pecuniary loss, the sentencing judge shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.” Section 46-18-242(l)(a), MCA, in turn, requires the probation officer, restitution officer, or other designated person to include “documentation of the offender’s financial resources and future ability to pay restitution” in the presentence investigation report (“PSI”).
¶180 In State v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d 539, we held that the “general mandate” of § 46-18-201(5), MCA, “is subject to the detailed procedures and qualifications found in §§ 46-18-241 to 249, MCA,” and that district courts “are not authorized to impose a sentence of restitution until all these additional statutory requirements are satisfied.” Pritchett, ¶ 7. Thus, given that the PSI in that case failed to document Pritchett’s financial resources and his future ability to pay restitution, we held that the district court’s restitution order was illegal. Pritchett, ¶ 13. We reached the same conclusion in State v. Hilgers, 1999 MT 284, 297 Mont. 23, 989 P.2d 866, and State v. Muhammad, 2002 MT 47, 309 Mont. 1, 43 P.3d 318. See Hilgers, ¶¶ 13-14; Muhammad, ¶ 47; accord State v. Dunkerson, 2003 MT 234, ¶ 18, 317 Mont. 228, ¶ 18, 76 P.3d 1085, ¶ 18 (“Failure of a PSI report to contain documentation of... an offender’s financial resources and future ability to pay renders a district court’s sentencing of restitution illegal.”); but see § 46-18-242(2), MCA (‘When a presentence report is not authorized or requested, the court may receive evidence of the offender’s ability to pay ... at the time of sentencing.”).
¶181 Likewise, in the case at hand, the PSI did not contain documentation of Ariegwe’s financial resources and future ability to pay restitution. Nor was such evidence presented at the sentencing hearing pursuant to § 46-18-242(2), MCA. Accordingly, we hold that the District Court was “not authorized to impose [the] sentence of restitution,” Pritchett, ¶ 7, and that the restitution order is illegal.
CONCLUSION
¶182 We affirm the District Court’s denial of Ariegwe’s motion to dismiss for lack of a speedy trial. We also affirm the District Court’s denial of Ariegwe’s motion for a new trial. However, we reverse the portion of Ariegwe’s sentence requiring him to pay restitution under § 46-18-201(5), MCA (2001) and remand this case to the District Court for a restitution hearing followed by resentencing pursuant to a correct and complete application of §§ 46-18-241 through -249, MCA (2001).
¶183 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
CHIEF JUSTICE GRAY, JUSTICES RICE, COTTER, LEAPHART, MORRIS and WARNER concur.
For a basic description of Internet chat rooms, see United States v. Johnson, 376 F.3d 689, 690 n. 1 (7th Cir. 2004), and Slattery v. United States, 2005 WL 2416339 at *1 (N.D. Miss. Sept. 30, 2005).
This rule does not apply to misdemeanor cases. See § 46-13-401(2), MCA.
This rule must be extended logically to situations not involving “arrest, the filing of a complaint, or . .. indictment or information.” See e.g. Bruce, ¶ 55 (where Bruce’s right to a speedy trial was allegedly violated on his appeal from city court for a trial de novo in district court, the speedy trial clock began on the date when the notice of appeal from city court was filed); State v. Ray, 2003 MT 171, ¶ 22, 316 Mont. 354, ¶ 22, 71 P.3d 1247, ¶ 22 (discussing this aspect of Bruce); State v. Stanko, 1998 MT 323, ¶ 28, 292 Mont. 214, ¶ 28, 974 P.2d 1139, ¶ 28 (the speedy trial clock began on the date the notice of appeal from justice court was filed); State v. Price, 2001 MT 212, ¶ 13, 306 Mont. 381, ¶ 13, 34 P.3d 112, ¶ 13 (“When the case involves a trial after an appeal from this Court, the length of delay is measured from the time remittitur is filed in the District Court until the trial date.”); State v. Olmsted, 1998 MT 301, ¶ 61, 292 Mont. 66, ¶ 61, 968 P.2d 1154, ¶ 61 (“[W]hen a mistrial is declared, the speedy trial clock is reset and begins to run from the date of the mistrial.”); State v. Daniels, 248 Mont. 343, 348-49, 811 P.2d 1286, 1289 (1991) (affirming the district court’s determination that the speedy trial clock started when the defendant became an “accused” in the civil youth court proceeding, not when he became a “criminal defendant” subject to the jurisdiction of the district court after the charge was transferred there).
See e.g. State v. Steward, 168 Mont. 385, 389, 543 P.2d 178, 181 (1975); State v. Keller, 170 Mont. 372, 377, 553 P.2d 1013, 1017 (1976); State v. Cassidy, 176 Mont. 385, 389-90, 578 P.2d 735, 738 (1978); State v. Tiedemann, 178 Mont. 394, 399, 584 P.2d 1284, 1288 (1978); State v. Puzio, 182 Mont. 163, 166, 595 P.2d 1163, 1165 (1979); State v. Harvey, 184 Mont. 423, 433-34, 603 P.2d 661, 667 (1979); State v. Worden, 188 Mont. 94, 96-97, 611 P.2d 185, 186 (1980); State v. Fife, 193 Mont. 486, 489-90, 632 P.2d 712, 714-15 (1981); State v. Ackley, 201 Mont. 252, 255-56, 653 P.2d 851, 853 (1982); State v. Bailey, 201 Mont. 473, 479, 481, 655 P.2d 494, 497-98, 499 (1982); State v. Kelly, 203 Mont. 159, 160, 661 P.2d 26, 27 (1983); State v. Chavez, 213 Mont. 434, 441-42, 443, 691 P.2d 1365, 1370 (1984); State v. Cutner, 214 Mont. 189, 192, 692 P.2d 466, 467-68 (1984); State v. Haskins, 220 Mont. 199, 202, 714 P.2d 119, 121 (1986); State v. Tilly, 227 Mont. 138, 140-41, 737 P.2d 484, 486 (1987); State v. Wombolt, 231 Mont. 400, 402-03, 753 P.2d 330, 331 (1988); State v. Bartnes, 234 Mont. 522, 527, 764 P.2d 1271, 1275 (1988); State v. Curtis, 241 Mont. 288, 299, 787 P.2d 306, 313 (1990); State v. Sunford, 244 Mont. 411, 416, 796 P.2d 1084, 1087 (1990); State v. Hall, 244 Mont. 161, 165, 797 P.2d 183, 186 (1990); State v. Heffernan, 248 Mont. 67, 70-71, 809 P.2d 566, 568 (1991); State v. Eklund, 264 Mont. 420, 424, 872 P.2d 323, 326 (1994); State v. Matthews, 271 Mont. 24, 28, 894 P.2d 285, 287 (1995); State v. Collier, 277 Mont. 46, 54-55, 919 P.2d 376, 382 (1996); State v. Tweedy, 277 Mont. 313, 320, 922 P.2d 1134, 1138 (1996); State v. Williams-Rusch, 279 Mont. 437, 449-50, 928 P.2d 169, 176-77 (1996); State v. Keating, 285 Mont. 463, 471, 949 P.2d 251, 256 (1997); cf. Fitzpatrick v. Crist, 165 Mont. 382, 388, 528 P.2d 1322, 1326 (1974); State ex rel. Sanford v. District Court, 170 Mont. 196, 199-200, 551 P.2d 1005, 1007 (1976); State v. Carden, 173 Mont. 77, 85, 566 P.2d 780, 784 (1977); State v. Freeman, 183 Mont. 334, 338, 599 P.2d 368, 371 (1979); State v. Britton, 213 Mont. 155, 162, 689 P.2d 1256, 1261 (1984); State v. Palmer, 223 Mont. 25, 27-28, 723 P.2d 956, 958 (1986); State v. Waters, 228 Mont. 490, 493, 743 P.2d 617, 619 (1987); State v. Thompson, 263 Mont. 17, 32, 865 P.2d 1125, 1134-35 (1993); State v. Stewart, 266 Mont. 525, 529-30, 881 P.2d 629, 632 (1994); State v. Weeks, 270 Mont. 63, 72, 891 P.2d 477, 482 (1995).
We have stated that “[s]peedy trial delay will not be charged to the State when a material witness with ‘valid reason’ is not available.” Diaz, ¶ 32 (citing State v. Tilly, 227 Mont. 138, 142, 737 P.2d 484, 487 (1987)). Yet, if the “valid reason” has nothing to do with the accused, then the delay is, in fact, charged to the State. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Johnson, ¶ 20. Thus, to clarify our holdings in Diaz and Tilly, when the State requests a postponement of the trial because a material witness with “valid reason” is not available, the resulting delay is charged to the State unless that delay was brought about by the accused’s unlawful acts, as was the situation in both Diaz and Tilly.
In Hooey, the Supreme Court explained:
At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from undue and oppressive incarceration prior to trial. But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.
Hooey, 393 U.S. at 378, 89 S. Ct. at 577 (footnote and internal quotation marks omitted).
Subsequent to Barker, the Supreme Court stated that “ ‘[i]nordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. . . .’ The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time.” MacDonald, 456 U.S. at 7-8, 102 S. Ct. at 1502 (citation and paragraph break omitted) (quoting Marion, 404 U.S. at 320, 92 S. Ct. at 463). In Doggett, however, the Supreme Court again stated that “[o]f these forms of prejudice, ‘the most serious is [the possibility that the accused’s defense will be impaired], because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692 (quoting Barker, 407 U.S. at 532, 92 S. Ct. at 2193).
As explained above in the context of Factor One’s second inquiry, both the accused and the State should address the issue of prejudice. In this regard, we clarified in State v. Hardaway, 1998 MT 224, 290 Mont. 516, 966 P.2d 125, that “if the State can only show lack of prejudice on one of the three traditional bases of prejudice, it must, at a minimum, address the question of whether there has been impairment of the defense.” Hardaway, ¶ 22. We reaffirm this holding as a requirement of the State’s proof under Factor Four.
For this reason, we overrule our statements to the contrary in State v. Olmsted, 1998 MT 301, ¶ 55, 292 Mont. 66, ¶ 55, 968 P.2d 1154, ¶ 55 (“The fourth factor of the Barker test, prejudice to the defendant, must be demonstrated by the defendant before there is a speedy trial violation.”), State v. Foshee, 282 Mont. 326, 333, 938 P.2d 601, 605 (1997) (“A criminal defendant must somehow show that he or she has been prejudiced by the delay before this Court will hold that the State has violated his or her right to a speedy trial.”), and State v. Mooney, 2006 MT 121, ¶ 17, 332 Mont. 249, ¶ 17, 137 P.3d 532, ¶ 17 (“Because we conclude that Mooney has not satisfied the prejudice prong of the Barker test, we decline to address the first and second prongs.”).
For this reason, we overrule our statements to the contrary in State v. Olmsted, 1998 MT 301, ¶ 55, 292 Mont. 66, ¶ 55, 968 P.2d 1154, ¶ 55 (“The fourth factor of the Barker test, prejudice to the defendant, must be demonstrated by the defendant before there is a speedy trial violation.”), State v. Foshee, 282 Mont. 326, 333, 938 P.2d 601, 605 (1997) (“A criminal defendant must somehow show that he or she has been prejudiced by the delay before this Court will hold that the State has violated his or her right to a speedy trial.”), and State v. Mooney, 2006 MT 121, ¶ 17, 332 Mont. 249, ¶ 17, 137 P.3d 532, ¶ 17 (“Because we conclude that Mooney has not satisfied the prejudice prong of the Barker test, we decline to address the first and second prongs.”).
We do not mean by this that an accused must assert the speedy trial right on Day 201 or that an accused should object to every continuance requested by the prosecutor. Cooperation is essential to completing discovery matters in a timely manner. Rather, we note the timing of the motion merely as one consideration among many; it is certainly not entitled to dispositive weight.
|
[
18,
-11,
-67,
34,
-11,
-28,
-48,
-9,
-26,
4,
-42,
0,
11,
13,
3,
-43,
-42,
-35,
26,
-34,
79,
-10,
51,
0,
-13,
-24,
-13,
6,
-6,
16,
36,
38,
-3,
-51,
29,
59,
-2,
43,
-23,
9,
-16,
-53,
-26,
16,
-52,
25,
-21,
-26,
-42,
3,
47,
-57,
3,
29,
51,
0,
-7,
5,
-40,
28,
-12,
46,
-12,
-12,
14,
-42,
-18,
20,
-19,
48,
17,
-27,
-60,
17,
22,
-23,
-31,
-22,
37,
70,
4,
-40,
-1,
4,
24,
-51,
55,
16,
-29,
37,
48,
-52,
0,
-45,
20,
48,
15,
-78,
-8,
-22,
6,
-59,
-23,
61,
6,
-4,
-28,
-32,
55,
44,
2,
-13,
-6,
20,
10,
21,
-7,
-17,
54,
-32,
-33,
64,
6,
69,
29,
-5,
5,
-12,
-19,
-5,
-77,
33,
3,
-32,
-28,
3,
-18,
-4,
-13,
5,
2,
-48,
85,
56,
16,
-1,
8,
-4,
1,
-14,
9,
-61,
-13,
44,
82,
-31,
-15,
-60,
-33,
-15,
2,
-12,
-64,
53,
-3,
-25,
22,
32,
18,
26,
12,
10,
-46,
22,
33,
46,
-91,
-27,
37,
-32,
-8,
76,
-12,
-41,
3,
43,
53,
-40,
-25,
-28,
-54,
8,
-8,
-33,
55,
38,
20,
1,
-16,
-59,
-11,
-14,
53,
99,
55,
-26,
1,
-34,
50,
20,
-20,
32,
4,
10,
0,
7,
-18,
-64,
-42,
51,
25,
-5,
5,
4,
-37,
-20,
-9,
47,
-16,
23,
2,
56,
8,
-13,
-24,
2,
9,
15,
6,
-22,
-8,
-20,
-1,
-1,
-14,
22,
-31,
-48,
-11,
4,
-12,
-32,
33,
31,
-39,
-11,
45,
-45,
-46,
-51,
-4,
-15,
9,
-33,
-18,
39,
-15,
30,
-50,
-3,
-1,
27,
17,
13,
-18,
-10,
30,
71,
-9,
24,
24,
-23,
11,
21,
-3,
-7,
-42,
24,
54,
9,
17,
-14,
30,
-77,
34,
-3,
-31,
30,
0,
60,
20,
-10,
-23,
-28,
13,
-20,
60,
6,
3,
-48,
14,
-22,
-57,
57,
7,
-14,
9,
20,
46,
0,
-16,
0,
6,
-57,
4,
-12,
-14,
-49,
-56,
23,
-65,
16,
-30,
-8,
34,
-37,
-11,
8,
-5,
-76,
9,
-27,
31,
-12,
-54,
10,
8,
14,
-35,
17,
0,
6,
49,
-14,
-60,
25,
-19,
-30,
60,
-14,
26,
19,
-18,
-93,
31,
13,
22,
14,
38,
6,
-29,
-67,
11,
4,
31,
-9,
17,
0,
-14,
12,
-27,
45,
32,
19,
34,
50,
-20,
-12,
6,
-9,
37,
20,
0,
-10,
7,
-3,
31,
-60,
72,
-89,
-5,
32,
70,
-22,
-6,
2,
-15,
-16,
-26,
-52,
-12,
-16,
27,
19,
8,
-52,
-54,
-10,
-37,
0,
-13,
-12,
20,
-20,
15,
69,
-21,
-4,
3,
7,
9,
54,
-53,
-25,
-9,
-22,
-25,
3,
-14,
-7,
-39,
8,
-11,
16,
-17,
-52,
3,
36,
34,
5,
-27,
19,
-35,
-32,
11,
18,
-13,
8,
-17,
-2,
-13,
-14,
19,
0,
28,
-28,
-2,
-42,
-26,
3,
-20,
31,
-15,
42,
46,
69,
20,
41,
8,
0,
-21,
1,
-14,
29,
10,
58,
-7,
-46,
-21,
26,
-49,
-16,
-27,
16,
-12,
8,
4,
31,
30,
-27,
-5,
-19,
-5,
3,
26,
-53,
22,
35,
-27,
-13,
42,
17,
28,
-42,
-16,
11,
33,
-15,
5,
40,
65,
47,
75,
37,
-44,
21,
-34,
-48,
-24,
-41,
17,
-36,
-25,
-19,
26,
-16,
-5,
-17,
62,
-2,
-41,
19,
-17,
7,
-11,
62,
-5,
29,
14,
27,
8,
30,
27,
-6,
59,
-16,
-9,
-19,
15,
-22,
8,
24,
42,
-18,
-18,
-10,
-44,
-36,
-15,
-12,
27,
-10,
-39,
24,
-14,
-54,
18,
-38,
36,
16,
12,
51,
-28,
27,
-67,
-10,
-7,
26,
27,
14,
0,
28,
27,
34,
-36,
-45,
-6,
-9,
-18,
-13,
0,
24,
0,
1,
59,
-41,
-17,
-26,
-10,
13,
16,
24,
31,
55,
-10,
-8,
13,
-12,
-7,
-13,
-14,
12,
-11,
1,
0,
-49,
-60,
-58,
-17,
12,
-43,
-10,
44,
30,
-10,
-13,
48,
16,
-45,
22,
85,
36,
36,
-7,
23,
27,
42,
47,
-28,
-26,
4,
-18,
-5,
-32,
49,
17,
-21,
4,
46,
38,
-9,
6,
-46,
28,
10,
17,
-2,
30,
33,
-8,
-21,
-31,
-20,
9,
-16,
-17,
-13,
-59,
26,
-22,
9,
-23,
0,
1,
-37,
14,
-14,
0,
-10,
18,
31,
25,
20,
44,
25,
27,
50,
21,
-37,
57,
-30,
-17,
21,
-13,
2,
9,
-16,
24,
-30,
3,
-23,
56,
-22,
0,
-68,
-68,
-57,
-45,
-30,
-9,
-69,
-22,
-19,
10,
23,
-19,
-7,
11,
-29,
10,
1,
10,
-8,
36,
-29,
-6,
-45,
14,
5,
63,
-44,
-13,
4,
-9,
-31,
59,
60,
-35,
-4,
0,
62,
51,
0,
7,
-32,
6,
34,
3,
-86,
-9,
22,
5,
7,
-17,
-3,
-4,
20,
-4,
38,
-19,
24,
-23,
5,
19,
-17,
-6,
12,
38,
37,
-44,
46,
11,
-85,
12,
-24,
30,
25,
36,
44,
17,
-25,
14,
50,
26,
4,
57,
0,
-35,
-21,
17,
0,
-25,
9,
-15,
-38,
17,
-24,
-25,
-11,
43,
-20,
69,
19,
13,
3,
-48,
-14,
-51,
43,
-40,
48,
-39,
-22,
2,
20,
31,
3,
-29,
1,
-13,
-6,
22,
-2,
0,
-41,
3,
19,
-1,
-12,
9,
-9,
-5,
-30,
-27,
56,
-12,
59,
6,
22,
-3,
69,
1,
28,
-20,
-13,
16,
-34,
1,
10,
18,
-16,
32,
-26,
-10,
-6,
-18,
75,
-9,
7,
-25,
2,
-17,
13,
11,
-76,
12,
33,
-28,
-16,
-23,
-30,
-46,
12,
-3,
-25,
-27,
-16,
-37,
-23,
-41,
-83,
-37,
9,
-70,
-25,
17,
-52,
-33,
13,
-28,
80,
72,
-18,
-44,
-32,
-13,
37,
-19,
-10,
4,
-1,
9,
24,
-7,
-25,
-22,
-22,
-9,
25,
7,
-14,
-11,
10,
98,
37,
25,
-9,
-39,
-74,
48,
-12,
37,
-18,
-41,
-24,
21,
18,
20,
-42,
0,
44,
28,
-29,
-19,
52,
57,
-15,
-42,
9,
12,
-25,
30,
26,
74,
42,
43,
0,
-14,
-5,
38,
-38,
14,
-8,
-1,
-35,
19,
-17,
-8,
-22,
-10,
-10,
-13,
-49,
6,
-11,
-20,
10,
13,
32,
-55,
-1,
-25,
14,
-14,
-1,
40,
1,
46,
-65,
7,
-9,
-14,
-20,
17,
42,
12,
73,
-70,
4,
-54,
-16,
12,
-33,
-23,
-4,
-4,
16,
28,
0,
3,
32,
15,
20,
-7,
-6,
-24,
3,
-1,
70,
45,
-63,
-6,
59,
40
] |
JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 Keal Gordon Reavely (Reavely) appeals from the Ravalli County District Court’s denial of his attempt to introduce evidence of his preliminary alcohol screening test (PAST) during his trial for driving under the influence of alcohol (DUI).
¶2 We review whether the District Court abused its discretion when it decided to exclude the result from Reavely’s preliminary alcohol screening test?
FACTUAL AND PROCEDURAL HISTORY
¶3 Reavely’s car struck another car while he was attempting to leave the Eagle’s Club in Hamilton on the evening of November 22, 2004. A witness to the incident notified the authorities. The Hamilton City Police dispatched Officer Nic Painter (Officer Painter) to the scene. Officer Painter observed that Reavely’s eyes were red and that he smelled like alcohol. Officer Painter asked Reavely for his consent to perform a PAST and Reavely agreed. Reavely’s PAST result indicated that he had a blood alcohol content (BAC) of 0.136. Officer Painter placed Reavely under arrest for DUI and transported him to the Ravalli County detention center. Officers performed a second breathalyzer test on Reavely at the detention center approximately 21 minutes after Officer Painter had performed the PAST procedure. The results of the second breath test using an Intoxilyzer 5000 indicated that Reavely had a BAC of 0.187.
¶4 The State charged Reavely with felony DUI based on the fact that he had been convicted of DUI on three previous occasions. Reavely entered a plea of not guilty, and the case proceeded to trial on July 26, 2005. Reavely’s counsel argued in his opening statement that he would present evidence that the police had administered two breath tests on Reavely. The State requested a meeting with the court out of the presence of the jury to discuss Reavely’s opening statement.
¶5 The State raised the concern that it suspected that Reavely intended to compare his PAST result with his Intoxilyzer 5000 result in order to show that his BAC might have been below 0.08 at the time of the accident. The State argued that the court should exclude Reavely’s PAST result from evidence as PAST results had been held inadmissible in State v. Snell, 2004 MT 334, 324 Mont. 173, 103 P.3d 503.
¶6 Reavely’s counsel admitted that Snell precluded the State from using the PAST result as evidence of intoxication. Reavely’s counsel distinguished Reavely’s facts, however, from the facts in Snell. He argued that Reavely did not seek to use the PAST result to prove evidence of intoxication. Reavely’s counsel wanted to compare the PAST result with the Intoxilyzer 5000 result in order to establish that Reavely’s BAC had been rising at the time of the accident.
¶7 The court determined that Reavely’s argument assumed the accuracy of the PAST result. The court ruled that it would exclude the PAST result unless Reavely first established a foundation on which to admit the PAST result. Reavely objected for the record. Reavely made no attempt during trial to establish a foundation for admitting the PAST result. The jury found Reavely guilty of DUI and the court sentenced Reavely on October 20, 2005. This appeal followed.
STANDARD OF REVIEW
¶8 We review a district court’s evidentiary ruling for an abuse of discretion. Snell, ¶ 17.
DISCUSSION
¶9 Did the District Court abuse its discretion when it decided to exclude the result from Reavely’s preliminary alcohol screening test?
¶10 Reavely argues that the court should have admitted his PAST result for the sole purpose of establishing that his BAC was rising at the time of the accident. He points out that the Intoxilyzer 5000 indicated that his BAC was 0.187 approximately 21 minutes after his PAST result had indicated that his BAC was 0.136. Reavely argues that the jury could have inferred from these results that his BAC was rising after the accident and, thus, that his BAC might have been below 0.08 at the time he was driving.
¶11 We have held that a party must establish that a defendant’s PAST result is accurate and reliable before the PAST may be admitted as evidence of a defendant’s BAC. State v. Damon, 2005 MT 218, ¶ 25, 328 Mont. 276, ¶ 25, 119 P.3d 1194, ¶ 25. The party seeking to admit the PAST must establish this foundation of accuracy and reliability with expert testimony as governed by M. R. Evid. 702. Damon, ¶ 25. ¶12 Reavely concedes that the State must establish a foundation of accuracy and reliability before it can admit a PAST result as evidence of a defendant’s BAC. He “wholeheartedly agrees,” in fact, that a PAST result represents an unreliable and inaccurate method of measuring a defendant’s BAC. Reavely insists, however, that the accuracy of his PAST result is “not the core issue” because he does not seek to prove that his BAC is accurate “to a degree that it can be relied upon to establish the BAC level of a Montana citizen for purposes of proof of intoxication ....” Reavely points out that he wants only to “establish reasonable doubt that Reavely had a BAC greater than 0.08 at the time he was driving.”
¶13 The reliability and accuracy of the PAST test is critical, however, to Reavely’s theory. Reavely’s BAC, in reality, may have been much less than or much greater than his PAST result indicated. Reavely’s actual BAC at the time when Officer Painter administered the PAST might have shown, for example, that his BAC was rising if it had been less than 0.187, holding steady if it had been close to 0.187, or falling if it had been greater than 0.187.
¶14 The PAST result is thus irrelevant to the fact that Reavely seeks to prove-that his BAC had been trending upward-as his admittedly “unreliable” PAST result does not tend to establish that any one of these trends was more probable than the other. M. R. Evid. 401. Reavely needed to provide a foundation that his PAST had been a sufficiently accurate representation of his BAC so that it was relevant to his theory. Reavely has not done so here.
¶15 Reavely argues next that he sought to offer his PAST result only to raise a reasonable doubt that his BAC had been greater than 0.08 at the time that he had been driving. He contends that it is unfair to require him to demonstrate the accuracy of his PAST result to establish reasonable doubt when courts permit the State to use a PAST result “without relating the actual numbers to show probable cause to arrest....” Reavely’s analogy to probable cause hearings lacks merit. The rules of evidence do not govern probable cause determinations by a judge or the police. See e.g., Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006); State v. Beaupre, 2004 MT 300, ¶ 48, 323 Mont. 413, ¶ 48, 102 P.3d 504, ¶ 48 (holding that hearsay may be used to establish probable cause). Moreover, by his own admission, Reavely does intend to relate the “actual numbers.”
¶16 Reavely also mischaracterizes the purpose for which he sought to admit the PAST result. Reavely did not merely propose to admit the number that Officer Painter observed on the PAST screen to help establish reasonable doubt. Reavely also would have asked the jury to assume that the number Officer Painter observed actually represented Reavely’s BAC within some degree of accuracy. Officer Painter had no personal knowledge, however, of Reavely’s BAC. Officer Painter only knew what he saw on the PAST screen. Reavely needed to offer expert testimony in order to establish that the number that Officer Painter saw on the screen actually represented Reavely’s BAC within some degree of accuracy and reliability. M. R. Evid. 602, 701, 703; Damon, ¶ 25. Reavely did not present any experts at trial and does not argue on appeal that he would have presented an expert at trial if he had been given the opportunity.
¶17 Reavely sought to use his PAST result to prove that his BAC was within a certain range of values, yet he made no attempt to establish a foundation at trial showing that his PAST result had been an accurate representation of his BAC within any degree of accuracy. We have never held that a court or jury may assume, as a matter of law, that a PAST result is a reliable representation of a defendant’s BAC within any particular degree of accuracy. Damon, ¶¶ 25-29. The District Court did not abuse its discretion in excluding Reavely’s PAST result under these circumstances.
¶18 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES WARNER, LEAPHART and RICE concur.
|
[
4,
24,
0,
8,
-26,
-58,
-8,
-18,
-69,
34,
17,
-36,
20,
-29,
73,
-3,
12,
35,
4,
-60,
-1,
-12,
25,
14,
-22,
-14,
-25,
9,
-31,
-11,
11,
-27,
-3,
-53,
61,
16,
-20,
33,
-8,
23,
41,
27,
-77,
26,
-30,
-15,
-52,
-14,
-12,
-1,
11,
-4,
-17,
9,
24,
26,
4,
24,
-18,
45,
-21,
4,
-45,
18,
13,
9,
12,
23,
-10,
1,
-18,
-35,
-27,
21,
-16,
-37,
5,
8,
16,
28,
0,
78,
34,
44,
56,
7,
-20,
-38,
16,
-4,
4,
11,
-17,
-44,
-19,
-30,
6,
-47,
20,
24,
3,
17,
-21,
24,
-49,
76,
-9,
7,
27,
-23,
-17,
10,
-7,
-3,
-23,
8,
11,
20,
-8,
34,
-4,
6,
74,
11,
-79,
-32,
29,
7,
-38,
-15,
-26,
60,
26,
-20,
-31,
-7,
-24,
67,
-14,
57,
-20,
33,
26,
0,
32,
29,
71,
16,
1,
45,
-14,
-9,
-1,
11,
-41,
-41,
37,
-56,
-18,
-27,
-28,
1,
26,
18,
17,
59,
-22,
-21,
6,
-48,
39,
-28,
14,
21,
41,
-49,
-4,
-26,
-31,
18,
-21,
35,
19,
-26,
0,
12,
-2,
-2,
-1,
2,
-23,
5,
-50,
-3,
5,
-3,
21,
42,
36,
-69,
-31,
15,
8,
-25,
-10,
32,
-34,
15,
30,
-1,
8,
-16,
-12,
-46,
2,
-24,
-7,
-38,
27,
6,
-32,
-33,
18,
-2,
-13,
19,
-21,
50,
2,
-18,
-2,
76,
-16,
17,
-58,
-21,
-16,
-26,
5,
40,
31,
1,
-37,
-17,
22,
13,
-21,
-47,
-11,
23,
54,
-3,
38,
-1,
-45,
-38,
63,
-66,
64,
2,
37,
74,
-4,
29,
-44,
1,
-9,
-19,
29,
-5,
-24,
-35,
-37,
14,
5,
32,
21,
1,
7,
76,
-43,
-19,
39,
81,
9,
42,
-9,
55,
44,
-13,
6,
-60,
-64,
15,
47,
-66,
39,
46,
-69,
-21,
64,
11,
-2,
54,
-28,
-27,
49,
61,
-28,
12,
32,
4,
-4,
67,
21,
-18,
-23,
-53,
65,
-40,
-36,
-24,
-70,
-39,
4,
-18,
-13,
-6,
-20,
-38,
-35,
-6,
-2,
49,
-36,
-29,
-31,
73,
47,
68,
-34,
-62,
24,
28,
14,
23,
-7,
31,
-31,
7,
-17,
16,
34,
-7,
-48,
3,
14,
-51,
58,
-19,
-45,
-24,
-3,
52,
-4,
-16,
6,
2,
-37,
-17,
5,
-49,
-40,
-37,
57,
0,
-27,
-11,
44,
-31,
-19,
-21,
5,
-50,
-25,
37,
30,
-12,
-58,
0,
15,
91,
-20,
-20,
-22,
-23,
12,
6,
43,
-9,
-28,
-24,
16,
-45,
-59,
-31,
44,
25,
-4,
-82,
-70,
4,
15,
9,
8,
6,
-85,
21,
-72,
-5,
4,
-4,
-16,
-53,
-1,
8,
-44,
74,
27,
17,
3,
-22,
-9,
-49,
7,
-19,
30,
-46,
22,
38,
-67,
-10,
-15,
3,
39,
17,
36,
3,
28,
-12,
25,
-17,
21,
7,
-49,
70,
55,
28,
-18,
25,
-31,
26,
-49,
-42,
38,
-1,
-20,
6,
-10,
-5,
28,
17,
10,
-40,
-28,
41,
-76,
-12,
-23,
-32,
-9,
4,
27,
-35,
-4,
19,
-27,
-70,
10,
27,
18,
-18,
-23,
25,
-49,
-20,
30,
-11,
-34,
-31,
-12,
28,
-87,
28,
2,
-30,
-3,
14,
-55,
-59,
16,
92,
-12,
-27,
-2,
-32,
-20,
-35,
-10,
4,
19,
18,
-7,
-24,
-25,
-28,
-30,
-14,
-23,
-62,
52,
-11,
68,
-40,
21,
19,
37,
23,
19,
-4,
43,
4,
-7,
-3,
-26,
7,
30,
-6,
27,
43,
6,
48,
-18,
25,
-6,
-42,
29,
-32,
-34,
15,
10,
-30,
-11,
71,
56,
40,
-39,
5,
66,
-31,
-20,
45,
-21,
-6,
23,
34,
11,
18,
-75,
57,
42,
66,
-13,
32,
-34,
12,
23,
-6,
0,
-72,
6,
23,
15,
38,
2,
-32,
-27,
-41,
-45,
-4,
34,
44,
23,
70,
15,
-31,
50,
-33,
11,
49,
-14,
59,
11,
-13,
8,
-10,
-22,
23,
12,
8,
-34,
35,
-20,
-14,
6,
27,
-14,
13,
14,
-33,
-15,
-65,
-44,
-33,
-23,
-22,
-24,
49,
-29,
-58,
40,
19,
13,
9,
39,
-13,
20,
1,
-63,
-66,
-17,
12,
-11,
-31,
-23,
13,
11,
-25,
9,
64,
62,
2,
-22,
38,
-76,
-56,
-41,
9,
-12,
16,
0,
-28,
-15,
-10,
49,
-4,
56,
-37,
-6,
36,
-33,
-55,
12,
-28,
-13,
7,
-36,
6,
64,
-23,
-16,
64,
-1,
25,
0,
45,
26,
-32,
-38,
-42,
-12,
-22,
12,
37,
-37,
7,
-5,
-42,
2,
24,
18,
16,
-18,
0,
30,
-42,
-61,
65,
-23,
21,
-41,
-19,
6,
21,
43,
36,
-12,
39,
24,
-38,
14,
-23,
-5,
-12,
48,
-13,
28,
-1,
41,
54,
-31,
11,
42,
-8,
9,
-23,
44,
25,
9,
-26,
-12,
-30,
31,
27,
-43,
61,
46,
26,
-51,
-27,
43,
7,
39,
45,
-4,
-15,
22,
10,
51,
47,
-22,
-63,
-8,
-48,
-46,
52,
-57,
-9,
6,
-32,
5,
49,
-37,
-29,
-24,
3,
-57,
28,
-46,
24,
-73,
5,
31,
66,
23,
-34,
2,
-23,
29,
25,
38,
-13,
55,
-11,
30,
27,
48,
23,
81,
-48,
0,
36,
32,
0,
33,
-67,
1,
-29,
3,
-52,
26,
-21,
-16,
-14,
-27,
8,
-6,
3,
26,
-30,
-61,
19,
24,
30,
-29,
8,
-3,
-6,
20,
45,
37,
64,
-7,
57,
7,
6,
-21,
41,
0,
80,
-6,
16,
-32,
23,
-38,
2,
4,
10,
3,
18,
16,
-9,
6,
-7,
-21,
-6,
39,
35,
-47,
3,
16,
-35,
70,
29,
-43,
7,
11,
15,
-39,
49,
54,
-57,
2,
-28,
29,
-20,
-51,
-18,
7,
12,
-18,
37,
53,
-47,
-65,
-8,
-3,
45,
-21,
-54,
22,
-18,
14,
10,
40,
-94,
17,
34,
-15,
15,
-29,
7,
-8,
-35,
8,
-59,
-71,
-44,
13,
-6,
27,
40,
21,
29,
14,
12,
-51,
-6,
-47,
39,
3,
46,
0,
-8,
-23,
18,
37,
16,
-3,
-66,
-20,
15,
28,
50,
-36,
-35,
-1,
-19,
-54,
5,
-17,
1,
-27,
57,
17,
7,
1,
38,
17,
35,
5,
45,
2,
66,
-49,
20,
-19,
-1,
6,
18,
-27,
-8,
27,
4,
-66,
5,
11,
-23,
-19,
4,
-60,
18,
7,
-31,
-35,
-52,
-8,
10,
-11,
43,
-39,
-36,
5,
39,
-3,
13,
-19,
-56,
29,
-2,
15,
37,
-47,
-19,
46,
-44,
20,
-14,
-17,
38,
21,
12,
-39,
-50,
-57,
25,
27,
-19,
-60,
2,
-41,
39,
-13,
-48
] |
Wade, C. J.
This is an action in equity to quiet title. The respondents claim the ground in question under the name of the Pay Streak quartz lode mining claim, by virtue of a location thereof according to law, on the 23d day of April, 1878, under the act of congress of May 10, 1872. The appellant having, on the 23d day of July, 1880, procured a patent from the government for a certain placer mining claim, under the same act of congress, by virtue of his application of December 14,1878, which includes within its boundaries the ground claimed by respondents as a quai’tz lode location, claims title and right of possession to the ground in dispute by virtue of his patent afox’esaid.
The cause was submitted to a jury on special issues, who returned into court, in substance, the following findings of fact: That on and prior to December 14, 1878, a vein of quartz or other rock in place, bearing gold and silver, was known to exist within the limits of the ground in controversy; that the existence of said vein or lode could have been ascertained on and prior to December 14, 1878, by any person examining the ground with an honest endeavor to ascertain if it contained any such vein or lode. That Finn and McEwen, predecessors and grantors of plaintiffs, in the month of April, 1878, discovered within the limits of the ground in controversy a vein or lode of quartz, with at least one well-defined wall, bearing gold and gil ver; that said Finn and McEwen, at the time of making said discovery, posted a notice upon the ground in controversy, claiming said ground, and the lode or vein which it included, as a lode mining claim, and at the same time distinctly marked on the grounds fyy stakes, so that its boundaries could be readily traced, the said mining claim and location, which was named by them in said notice and location the Pay Streak lode; that said Finn and McEwen posted said notice and marked their location upon the ground claimed by them as the Pay Streak lode, which ground included within its limits the vein or lode which they had discovered; that said Finn and McEwen, in the month of April, 1878, and within twenty days after they claimed to have discovered a vein or lode, made and filed in the proper county, notice and claim of location of the Pay Streak lode such as was commonly employed in claiming and recording lode claim’s in that mining district; that said Finn and McEwen, about the 12th day of July, 1881, conveyed to plaintiffs their interest in the ground claimed as the Pay Streak lode claim, in controversy in this action, and that the plaintiffs, on or about the 2d day of August, 1881, and before the commencement of this action, caused a survey to be made of the ground claimed by them as the Pay Streak lode claim, and marked the location claimed by them distinctly on the ground, so that its boundaries could be readily traced; that the plaintiffs, at about the same time, posted a notice on the ground so surveyed, claiming the same as the Pay Streak lode claim, a duplicate of which notice was in evidence as the recorded notice and claim of relocation of the Pay Streak lode claim, which notice, within twenty days after such relocation, was made and filed in the recorder’s office of the proper county; that the ground in controversy in this action is the same ground claimed to have been surveyed and relocated by plaintiffs, in August, 1881, and is the same ground, or part of the same, that Finn and McEwen claimed to have located as the Pay Streak in April, 1878; that the ground claimed to have been surveyed and relocated by plaintiffs in August, 1881, included within its limits the place where Finn and McEwen claim to have discovered a vein or lode in April, 1878; that plaintiffs had possession of the ground in controversy, working the same, at the date of the commencement of this action; that the appellant, on the 14th day of April, 1878, applied for, and on the 28th day of July, 1880, obtained a patent from the United States, which included within its limits the ground in controversy. And as to the question whether there was any vein or lode known to the appellant to exist within and upon the premises in controversy when he applied for a patent, the jury answered and said that they could not agree.
Upon these facts, judgment was rendered for respondent for the ground in question, from which the appellant appeals to this court. There does not seem to have been any question at the trial, or claim on the part of appellant, that the Pay Streak mining claim and location of April 23, 1878, had ever been, in any manner, abandoned or forfeited, or that the relocation of respondents of August 2, 1881, was not of the same ground originally located as the Pay Streak' mining claim. As to whether this claim was known to the appellant to exist within and upon the premises in controversy, when he applied for and obtained a patent for said ground as a placer claim, the jury could not agree, and this disagreement suggests the questions upon which appellant asks a reversal of the judgment: •
1. Was it within the authority and jurisdiction of the court to have rendered a judgment for the plaintiff for the ground in question, the jury not having found upon all the interrogatories submitted to them by the court?
2. Did the placer patent necessarily include the lode mining claim location, unless such lode claim was known to appellant to exist at the time or before he applied for his patent? and is this question determinable in this action, or was it conclusively adjudicated in the land office?
1. As to the first question: This is a suit in equity to quiet title. The decree emanates from the judge sitting as a chancellor, and he is responsible for the decree. In actions of this character the judge may try the case without a jury, or he may submit special issues to the jury, but their finding of fact is not binding upon the chancellor. He may adopt or disregard the findings of the jury, or make findings of fact of his own, and render his decree thereon. In the case of Gallagher v. Basey, 1 Mont. 461, 462, this court held: “That, under and by virtue of the act organizing this territory, the supreme court, and the distinct courts, are clothed with chancery as well as common law jurisdiction, and, in the exercise of the authority thus conferred, the forms of proceedings must conform to the well-known and recognized distinctions pertaining to said jurisdictions as limited by law; that is to say, causes in equity wherein equitable relief is demanded, or where an equitable defense is made to. a claim at law, must be tried as in a court of chancery, and that the decree must proceed from the judge sitting as a chancellor, and it would be error in the class of cases described to try them as at law to a jury; that it is competent to limit and control, by statute, the forms of proceedings in actions at law and suits in equity, but that no statute and no law of our legislature can, in any manner, destroy or blend together these separate and distinct jurisdictions; that our organic act recognizes a distinction between suits in equity and actions at law, and that the substance of this distinction must be preserved, although the forms of proceedings may be prescribed and limited by law, and that the Civil Code may be followed in equity cases, so far as the same is applicable, but that care must be taken to preserve the distinguishing features of a suit in chancery. . . . The suit under consideration was a bill in chancery wherein the equitable jurisdiction of the court was properly invoked, and the record herein clearly shows that it was tried to the court sitting as a chancellor, and that the decree emanates from the chancellor; and that the questions submitted to the jury were to aid the conscience of the court, but not to control it, as fully appears from the fact that, while the jury answered that, as against the plaintiffs, the defendants had not diverted or appropriated the waters of the stream to the injury or damage of the plaintiffs, the court found precisely to the contrary, that the defendants had diverted and appropriated said waters, to the damage and injury of the plaintiffs, and based a decree for a perpetual injunction upon this fact.”
All this applies strongly to the case we are considering; for here, as in the case cited, the court, in rendering its decree, disregarded some of the findings of the jury, and adopted others of their findings as its own; and, as to .some questions of fact, made independent findings upon the proofs and admissions in the pleadings, treating the findings of fact by the jury as merely advisory, but not binding upon the court. This, finder the authority cited, was clearly within the authority and jurisdiction of the court, and the decision in the case of Gallagher v. Basey is approved.
The force of this is not invalidated by the act of congress of April, 1874, which declares that it shall not be necessary, in the courts of the several territories of the United States, to exercise separately the common law and chancery jurisdictions vested in said courts, and that the several codes and rules of practice adopted in said territories respectively, in so far as they authorize a mingling of said jurisdictions, or a uniform course of proceeding in all cases, whether legal or equitable, be validated and confirmed. Sup. R. S. U. S. 12.
Subsequent to the enactment of that statute (October, 1874), the supreme court of the United States, in the case of Gallagher v. Basey, 20 Wall. 679, appealed from the supreme court of this territory to that court, says: “By the organic act of the territory,, the district courts are invested with chancery and common law jurisdiction. The two jurisdictions are exercised by the same court, and under the legislation of the territory the modes of procedure, up to the trial or hearing, are the same, whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state, ‘in ordinary and concise language,’ the facts of his case upon which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings when the case is called for trial or hearing, whether it will submit them to a jury or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential, unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. . . . The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived; the relief which equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters’ reports or findings of a jury, is merely advisory. Ordinarily, where there has been an examination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must depend upon the question whether it is satisfied with the verdict. This discretion to disregard the findings of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana regulating proceedings in civil cases which affects this discretion. That statute is substantially a copy of the statute of California, as it existed in 1851, and it was frequently held by the supreme court of that state that the provision in that act requiring issues of fact to be tried by a jury, unless a jury was waived by the parties, did not require the court below to regard as conclusive the findings of a jury in an equity case, even though no application to vacate the findings was made by the parties, if, in its judgment, they were not supported by the evidence.” Still v. Saunders, 8 Cal. 287; Goode v. Smith, 18 id. 81; Duff v. Fisher, 15 id. 376; Weber v. Marshall, 19 id. 447.
The provision of our Code of Civil Procedure is the same as that of California, and provides that, in all cases, issues of fact must be tried by a jury (E. S. 83, sec. 251); but the decision of the supreme court of the United States, since the act of congress of 1874, validating and confirming the codes and rules of practice in the territories which presci'ibe a uniform course of proceeding in all cases, whether legal or equitable, and the decision of our own supreme court before that act, under a code containing the same provision as to the trial of questions of fact, ought to be conclusive upon the question that an equity case should be tried by the court, and that it is discretionary with the court whether special issues be submitted to a jury to aid the court in arriving at the facts, and that such special issues' and findings may be adopted or rejected by the court, as the evidence may require.
2. Was it necessary for the court to have found that the defendant knew of the existence of the Pay Streak location and claim at or before the date of his application for a patent to placer ground, in order to have rendered a judgment in favor of respondents?
The statute of the United States providing the manner and mode of proceeding to obtain a placer patent to ground that does or does not contain within its boundaries a lode mining claim is as follows (E. S. U. S. sec. 2333): “Whenthe same person, association or corporation is in possession of a placer claim, and also a vein or lode, included within the boundaries thereof, application •shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such •case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of $5 per acre for such lode ■claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer not embracing any vein °or lode claim, shall be paid for at the rate of $2.50 per acre, together with all •costs and proceedings; and where a vein or lode such as is described in section 2320 is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed -as a ■conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein of lode in a placer claim is not known, a patent for the placer claim shall convey all valuable minerals or other deposits within the boundaries thereof.”
Section 2320 defines the extent of a lode mining claim, and provides that, unless controlled by the customs and regulations of the miners, or the local laws, such lode claim may extend one thousand five hundred feet in length along the vein or lode, and three hundred feet on each side of the middle of the vein at the surface. This is the kind of a lode mining claim referred to in the section above quoted, and which, if known to exist within the boundaries of a placer claim for which application is being made for a patent, and which does not include an application for such vein or lode claim, shall be construed as a conclusive declaration that the placer claimant has no right to the possession of the vein or lode claim.
There is a vast difference between a vein or lode and a vein or lode mining claim. A vein or lode may be entirely concealed beneath the earth’s surface, and unknown to exist, while a lode mining claim is on the surface, exposed to view, designated by stakes and monuments, so that its boundaries may be readily traced, besides a notice posted on the claim and a record of the location in the proper county. By the terms of the statute, it is a vein or lode in a placer claim, the existence of which is not known, that the placer- patent carries with it. There is no provision in the statute which authorizes the placer claimant to acquire title to a lode mining claim by virtue of his placer patent. If the lode mining claim is known to exist, the placer applicant must also apply for a patent for such lode mining claim. He acquires no title to the lode claim by virtue of his placer patent; and if he makes no application for the lode claim, he is conclusively presumed to have no right to or interest in it. The theory of the statute is, that a vein or lode of quartz may exist in placer ground that is unknown, because it may be concealed beneath -the surface, and afterwards uncovered by working the placer claim; but no such presumptions can arise as to a lode mining claim, which must exist on the surface, and be distinctly marked and bounded, so that the same may be designated and distinguished from all other property. A lode mining claim is a definite, distinct and certain tract or parcel of land, the same as is a farm or a town lot; and a location according to law, and the record thereof, is the title by which it is held and owned. The location of a quartz lode mining claim, perfected according to law, creates an existing outstanding grant of the exclusive right to the possession and enjoyment of all the surface ground included within the boundaries of the claim; and such a location is just as much a withdrawal from the public domain, of the right to the possession of the property located, as is the fee withdrawn by a valid grant' from the United States under the authority of law, or the possession by a valid and subsisting homestead or pre-emption entry. Such a location when perfected has the effect of a grant by the United States of the right of present and exclusive possession. Belk v. Meagher, 104 U. S. 279.
In the case of The Silver Bow Mining Co. v. William A. Clarke et al. 5 Mont. infra, decided at the present term, this court used the following language: “Having discovered a vein or lode and made a location thereon according to law, the locator then becomes entitled to the exclusive right to the possession and enjoyment of all the surface ground included within the lines of his location. This is the express provision of the statute, section 2322, and is in harmony with section 2319, which declares that the ground in which the mineral deposit may be found shall be open to ■'occupation and purchase. The right to acquire the full title which attaches to and accompanies every valid location of a mining claim, ought to be, and is, followed by the right to the exclusive possession and enjoyment of the soil of such claim. . . . This statute is a pre-emption law, and by the location of a mining claim under it, the grounds included within the boundaries of the location are just as much withdrawn from the public domain as the fee is by a valid grant from the United States under the authority of law, or the possession under a valid and subsisting homestead or pre-emption entry. This statute is an offer to sell the public mineral lands by the owner thereof, and the locator, by making a location thereon, accepts the offer, thereby closing the contract of purchase, and the purchaser becomes entitled to a conveyance when he has complied with the terms of the contract. ... If the location of a mining claim has the effect of a grant by the United States to the locator, of the right to the present and exclusive possession of the ground located, it follows that there could not be a like grant of the same property to any other person.”
The land included within the boundaries of the Pay Streak mining claim having been thus sold and withdrawn from the public mineral lands, by what law or authority is it included in a placer patent and sold again to some other person? If the government issues a patent for lands that have been previously sold or reserved for sale, the patent is so far void. Steel v. Smelting Co. 106 U. S. 450; Patterson v. Winn, 11 Wheat. 380; New Orleans v. United States, 10 Pet. 662; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112; Morton v. Nebraska, 21 Wall. 660; Stoddard v. Chambers, 2 How. 284; Polk's Lessee v. Wendell, 9 Cranch, 99; Polk's Lessee v. Wendell, 5 Wheat. 293; United States v. Tichner, 12 Fed. Rep. 415; Smelting Co. v. Kemp, 104 U. S. 664; Copp’s Mineral Land Laws, 282.
And whether the elder title or grant is “known” to the subsequent claimant is wholly immaterial. A lode claim location being perfected according to law and recorded in the proper county as the law directs, and not abandoned or forfeited in any way, is a title that the locator, or his grantees in good faith, may hold and defend against every other person or claimant by a subsequent acquired title. His right to the ground located is property which he may dispose of at pleasure. He holds it by virtue of his location, which becomes a con- ' tract of sale and purchase between the locator and his grantees and the government. This is his title, the means by which he holds possession and the right of possession to his ground; and, when thus held, the ground cannot be relocated, claimed or taken from him in any way, so long as he complies with the law. A mining claim thus located, owned and held, is “known” to exist, within the meaning of the statute. It is “known” as any other title is, by the record,.and better, for the location is so distinctly marked and designated on the ground that its boundaries may be readily traced. The law presumes that such a title is “known” to exist, and whether it is known or not, no other person can acquire any title or interest in the property so located, granted and sold. The government cannot sell to a placer claimant property that it has already sold to a quartz locator as a lode mining claim. And whether the placer claimant “knows” that the government has sold the property to another, is immaterial. The title of the purchaser cannot depend on his knowledge. The purchaser holds by virtue of a grant from the government, and if this grant is evidenced by a perfected location, any other person attempting to obtain title to the same ground is presumed to “know ” of the prior grant. A patent to one person for a portion of the mineral lands of the United States already sold by the government to another person is void; and the knowledge of the patentee does not affect the matter one way or another. And so, whether the appellant knew of the existence of the Pay Streak mining claim or not, he could not acquire any title to such mining claim by virtue of his placer patent. The government could not convey to him what it had already sold to the respondents and their grantors.
It is claimed that the reservations in the placer patent of all quartz leads known to exist therein are void. This patent is not before us; but if it contains these reservations, it shows that the land department did not inquire and adjudicate upon the question as to the existence of lode mining claims within the boundaries of the placer patent. If it had, it would have excepted them from the grant by specific boundaries and by name. But whether the patent makes such exception or not is immaterial. The grant of the placer patent only attaches to such of the public mineral lands as the government had the right to sell, and had not sold or withdrawn from sale before. Lode mining claims are excepted from the placer patent by the statute, and it is impossible for the land department to grant the title to such claims in a placer patent. It is held by all the authorities that the action of the land department in issuing a patent for the public, lands, subject to sale by pre-emption or otherwise, when acting within the scope of its authority, is conclusive upon the legal title; but whether the land so conveyed was public land and subject to sale, or, in other words, what is conveyed by the patent, under the statute by which it was issued, may be inquired into even in an action at law. Iron Silver Mining Co. v. Sullivan et al. 16 Fed. Rep. 829; 108 U. S. 550. “These presumptions as to the conclusiveness of a patent and the title it conveys are confined to matters over which the land department has jurisdiction. It must act within the scope of its authority, and as authorized by law. If it goes beyond its jurisdiction the patent would be so far void; and this may be shown in an action at law.” Silver Bow Mining and M. Co. v. Clarke, infra. “ Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previouly been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law.” Steele v. Smelting Co. supra; Polk’s Lessee v. Wendell, 9 Cranch, 99; Patterson v. Winn, 11 Wheat. 380; Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Lessee of Reed, 6 Pet. 328; Bagnell v. Broderick, 13 Pet. 436; Moore v. Robbins, 96 U. S. 530. These authorities are conclusive upon the proposition that, if the land department undertakes to convey by patent a title to the public lands which have previously been sold by the government, the patent is void, and that this matter may be inquired into even in an action at law; and in- a court of equity the inquiry, under proper averments, may take a much wider scope.
This action is not an attack on the placer patent, but is an inquiry as to what was conveyed by the patent under the statute by virtue of which it was issued. Appellant’s patent is good so far as it was authorized by law, and respondents do not impeach it or question it to that extent. They seek to show what, under the statute by virtue of which the patent was-issued, was conveyed by it. A patent issued in pursuance of law is conclusive upon the legal title, but if issued for lands previously sold or reserved from sale, it has no effect upon the legal title, for the reason that it is not issued in pursuance of law, and is, therefore, void. It was not necessary that the owners of the Pay Streak mining claim should have filed any protest or adverse claim to the placer application of appellant. They did not own or claim any interest in the placer ground, and the appellant could acquire no interest in their ground by virtue of his placer patent.
It was found by the jury as a fact, and adopted and approved by the court, that the grantors of respondents, in April, 1818, and six months before appellant’s application for a patent on the public mineral lands of the United States, discovered a vein or lode of quartz or other rock in place, bearing silver, gold and other valuable deposits, within the boundaries of the ground mentioned in appellant’s application, and thereupon made a location of the Pay Streak mining claim, by virtue of, and including, such discovery, by staking the same so that its boundaries could be readily traced, and posting a notice on the claim within the boundaries thereof, and having the same recorded in the proper county, in pursuance of law. It was a perfected lode claim location, and so continued in full force and effect at the time when the appellant applied for and obtained a placer patent for the same ground. The placer patent is void as to the ground included within the boundaries of the lode claim location.
The judgment is affirmed.
Judgment affirmed.
|
[
-14,
24,
-10,
-50,
71,
22,
10,
-41,
58,
28,
-36,
19,
43,
-9,
26,
59,
-46,
-69,
-7,
-22,
-13,
-11,
34,
-102,
0,
43,
10,
-2,
-35,
-3,
-18,
-19,
-57,
-20,
16,
-10,
20,
-17,
-53,
-39,
24,
55,
7,
15,
38,
-14,
-64,
-55,
-22,
-5,
34,
-11,
-5,
1,
-15,
21,
-34,
-30,
-13,
-5,
-17,
-7,
72,
-31,
32,
23,
58,
-70,
19,
-55,
-31,
41,
11,
-14,
-36,
-73,
-14,
-41,
-42,
-30,
-25,
-19,
1,
18,
1,
9,
-32,
63,
-2,
8,
36,
-7,
23,
38,
-15,
18,
46,
14,
-25,
105,
44,
-20,
-60,
-12,
61,
7,
17,
4,
10,
-21,
12,
18,
-10,
0,
-23,
35,
57,
-33,
15,
0,
-1,
-57,
34,
85,
-64,
-29,
-30,
-15,
-28,
5,
5,
-32,
-17,
22,
60,
4,
32,
-16,
1,
52,
-20,
-45,
-13,
-14,
8,
-41,
-5,
19,
42,
-19,
-36,
0,
29,
9,
15,
-57,
2,
52,
77,
3,
35,
15,
38,
-15,
-41,
27,
-30,
-63,
12,
78,
49,
-10,
-29,
-14,
-19,
33,
72,
3,
8,
-25,
1,
0,
-16,
8,
-44,
-10,
-45,
16,
21,
63,
18,
-34,
5,
-3,
11,
-16,
16,
-86,
7,
-10,
9,
-110,
12,
-26,
-51,
60,
38,
40,
38,
65,
-18,
29,
-15,
34,
-24,
36,
29,
-22,
42,
-64,
26,
5,
3,
6,
45,
-5,
19,
16,
-8,
2,
-29,
-22,
58,
-51,
-26,
-4,
-49,
-6,
0,
13,
-15,
-61,
-53,
-15,
-16,
1,
-19,
19,
16,
46,
-14,
19,
-3,
-4,
-21,
22,
30,
0,
-45,
-59,
0,
52,
-8,
14,
3,
-66,
-54,
-1,
14,
16,
-30,
-72,
56,
26,
-17,
-6,
52,
-30,
-22,
1,
-28,
14,
10,
45,
-4,
1,
-1,
-34,
-38,
55,
-47,
11,
5,
-61,
-9,
5,
-20,
37,
58,
45,
-18,
-11,
-28,
-21,
-27,
28,
-9,
8,
13,
-35,
-12,
20,
34,
42,
21,
23,
30,
12,
38,
-27,
4,
-21,
-36,
-39,
3,
43,
68,
-6,
-9,
0,
11,
-14,
80,
46,
-60,
5,
-9,
9,
58,
-10,
7,
17,
15,
34,
28,
9,
14,
-62,
38,
7,
-32,
-46,
-19,
-24,
13,
55,
3,
-7,
25,
13,
-20,
25,
56,
-18,
-42,
-53,
-79,
-36,
56,
-29,
-48,
38,
-5,
-15,
15,
-22,
62,
-18,
-22,
11,
-6,
52,
70,
-10,
63,
44,
16,
-3,
-45,
-41,
0,
30,
11,
61,
19,
26,
30,
-57,
-20,
27,
37,
14,
-2,
-76,
21,
-24,
27,
-22,
0,
4,
15,
35,
-83,
-56,
49,
-19,
28,
8,
0,
67,
-7,
10,
-25,
-27,
-6,
-13,
3,
13,
-57,
9,
-9,
49,
39,
50,
-37,
-19,
-2,
15,
-36,
14,
-9,
30,
54,
49,
-19,
27,
4,
-23,
6,
-17,
-14,
-4,
-10,
21,
-38,
16,
76,
11,
-6,
48,
-5,
31,
94,
51,
-25,
11,
30,
-1,
-49,
73,
33,
49,
32,
-65,
-17,
1,
26,
-13,
26,
-63,
24,
28,
-11,
16,
-41,
-57,
-38,
12,
-41,
57,
26,
-69,
-15,
-4,
-18,
-46,
-62,
-64,
29,
31,
-35,
-7,
23,
-8,
-16,
38,
18,
-22,
-18,
41,
19,
6,
33,
-33,
101,
19,
-41,
16,
-28,
8,
-26,
-32,
-55,
15,
-5,
-16,
-41,
-7,
11,
-4,
-63,
-22,
17,
-27,
1,
-14,
28,
44,
-79,
-36,
-4,
-42,
37,
57,
-60,
39,
14,
-17,
16,
-21,
-16,
8,
65,
29,
-42,
19,
18,
-36,
9,
-54,
-68,
24,
-71,
-55,
-8,
13,
25,
9,
18,
25,
-87,
78,
50,
-35,
-5,
-12,
-25,
0,
-7,
18,
3,
-23,
39,
-74,
-18,
-9,
14,
20,
42,
28,
-35,
-55,
9,
21,
8,
10,
-4,
49,
16,
10,
-9,
-27,
-26,
12,
-28,
-9,
-8,
-35,
47,
-16,
1,
18,
2,
12,
11,
-2,
0,
-1,
48,
0,
34,
0,
-3,
18,
9,
37,
-31,
68,
-50,
-14,
2,
-45,
12,
12,
-33,
-7,
-37,
0,
11,
-10,
47,
-54,
-4,
27,
-58,
-5,
5,
-41,
23,
-41,
22,
2,
57,
49,
-26,
20,
21,
-53,
-3,
5,
27,
-13,
-24,
-17,
18,
-55,
-49,
0,
22,
-6,
-6,
-15,
-15,
-1,
-32,
-9,
4,
57,
0,
-12,
-20,
-6,
58,
17,
31,
-13,
8,
8,
-30,
-13,
17,
-17,
-15,
0,
-24,
22,
51,
-84,
6,
-57,
-14,
-25,
12,
55,
40,
-1,
6,
-30,
-45,
-16,
56,
-15,
20,
-9,
-11,
2,
12,
42,
-5,
-41,
24,
-37,
50,
3,
-25,
34,
14,
14,
-66,
29,
25,
9,
9,
0,
0,
-2,
-1,
-2,
-87,
-38,
46,
-20,
-2,
3,
25,
13,
17,
-28,
-18,
51,
-14,
3,
-9,
26,
27,
-56,
-55,
-16,
0,
23,
28,
28,
3,
-69,
-39,
-14,
-38,
-39,
42,
-10,
-25,
0,
-17,
25,
10,
46,
0,
33,
20,
0,
44,
42,
17,
-8,
14,
-36,
-8,
-10,
52,
-10,
-44,
-45,
-21,
-25,
-96,
-55,
-60,
-12,
-42,
-30,
-37,
-36,
17,
53,
43,
27,
26,
-36,
-9,
-28,
-38,
-98,
9,
-25,
-48,
49,
-26,
29,
12,
-80,
-19,
-1,
-12,
0,
63,
20,
-10,
5,
-53,
-11,
18,
22,
34,
50,
73,
-84,
36,
-43,
-3,
-1,
-25,
10,
-48,
-7,
-6,
-21,
-67,
52,
-9,
-24,
-57,
57,
24,
31,
-56,
-55,
-2,
-110,
15,
11,
78,
-14,
-35,
25,
8,
-1,
17,
58,
9,
7,
5,
49,
-84,
28,
2,
65,
5,
-77,
25,
65,
-18,
-11,
5,
22,
-28,
40,
82,
-26,
18,
38,
-76,
-86,
-11,
-30,
4,
-58,
43,
-42,
4,
-36,
44,
32,
0,
70,
-11,
18,
20,
17,
17,
45,
-17,
4,
-48,
-20,
-42,
48,
-2,
51,
-54,
31,
79,
-21,
-9,
9,
-34,
-38,
21,
52,
-12,
76,
-29,
47,
10,
-59,
-61,
40,
-20,
-53,
-58,
-11,
-4,
6,
38,
24,
-28,
-26,
5,
-25,
44,
21,
13,
12,
13,
63,
-54,
-27,
-1,
-19,
105,
1,
-1,
61,
-8,
-9,
9,
8,
17,
3,
18,
-60,
0,
-23,
52,
-35,
59,
17,
-5,
-27,
-39,
-3,
9,
34,
0,
-35,
38,
20,
-12,
-31,
77,
108,
16,
-1,
-66,
7,
51,
-36,
11,
40,
-19,
-35,
20,
-25,
-42,
47,
-22,
20,
15,
-15,
24,
-22,
-68,
-33,
35,
60,
-16,
35,
-38,
-21,
1,
-33,
45,
-2,
-87,
53
] |
Galbraith, J.
This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the complaint. The action is to compel the specific performance of an alleged contract. The allegations of the complaint are in substance as follows, viz.:
“That on the 3d day of May, 1819, the defendant, Thomas Cruse, was the owner of, and, as such, in the actual possession and occupation of a certain quartz mining claim, situate in Ottowa mining district, in the county of Lewis and Clarke, Montana territory, known as the Pine Tree or Bon Mation lode; a description of the property is given. That the said lode was, by the locator thereof and his successors in interest, deeded to the said defendant, Thomas Cruse, who, on the 3d day of May, 1879, held the legal and equitable title to the same. That on the above 3d day of May, 1879, the defendant Cruse entered into'a certain contract with this plaintiff, whereby, in consideration that this plaintiff would render services to said defendant in and about compromising and settling a certain conflicting claim and matter of controversy then existing between one Larry Walsh and Lamartine C. Trent, and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this plaintiff, by a good and sufficient deed, one undivided one-third of the said property so acquired and secured by said settlement or compromise; the said property at that time being undeveloped and of little value, and the said services being a fair and reasonable compensation for the interest so to he acquired. That, in pursuance of said contract, this plaintiff did proceed and compromise and settle the said dispute and controversy, as the agent for said defendant, and did procure and obtain from said parties a perfect and complete title, including the right, title and claim of said parties to all of the said lode claim, save and except a portion thereof described in the complaint, and being three hundred and fifteen linear feet on said Pine Tree lode. That, in pursuance of said settlement and compromise, the said Walsh and Trent executed to said defendant a good and sufficient deed for all the balance of said mining claim embraced in the said Pine Tree and Bon Mation lode claim, by reason whereof he became seized and possessed of the same and the legal title thereto, and let this plaintiff into the occupancy and possession of his said one-third interest thereof, in accordance with the terms of said contract, and still holds, occupies and possesses the same. That since the performance of said coutract by this plaintiff and the acquirement of possession of said property by him, he has, as co-tenant with said defendant, expended in money and labor upon said property and other property held and owned in common by them the sum of $515 upon the faith and strength of his said contract. That, by reason of the said premises, the said plaintiff became and is entitled to a specific performance of said contract, in the conveyance to him of his said one-third interest in said property. That the respondent, Thomas Cruse, although often requested and demanded so to do, has refused, and still continues to refuse, to convey to the appellant the undivided one-third of the said property.”
There are, also, allegations in the complaint, which is an amended and supplemental one, that, long after the said contract was made, and after the plaintiff had entered into the possession of, and while he occupied and possessed his alleged interest in said property, and during "the pendency of this action, the defendants, Thomas Cruse, Duffy and Roberts, with a full knowledge of the rights and equities of the plaintiff, became the purchasers •of, and claim an interest in, the said lode claim of which the plaintiff is entitled to a one-third interest, and that all of said defendants have conspired together to procure a United States patent for said property in their names, so as to defeat any decree rendered in this cause against the said Thomas Cruse.
The complaint is silent as to whether or not the alleged contract was verbal or in' writing; but where, in such a case, there is no objection made by demurrer upon the .ground of ambiguity or uncertainty, the contract will be presumed to he in writing. Sweetland v. Barrett, 4 Mont. 217.
It appears by tbe record that the demurrer was sus^ tained upon the sole ground of the insufficiency of the allegations of consideration, and overruled as to all other matters. The record does not show that the court had obtained jurisdiction over the defendants, Thomas Cruse, Duffy and Eoberts, and however the allegations of facts which occurred pendente lite may affect Thomas Cruse, yet it is apparent that the relief predicated upon them is dependent upon the determination of the main question presented in this case, which relates solely to the sufficiency of the consideration alleged to support a decree for the specific performance of the alleged contract. It appears from the complaint that, at the time of the making of the alleged contract, whereby the appellant agreed to settle the conflicting claim and matter of controversy concerning the property, that the respondent, Thomas Cruse, was the owner of, and, as such, in the actual occupation and possession thereof; and that he, at that time, had the legal and equitable title thereto. This language indicates that the respondent, Thomas Cruse, at that time held the complete title to the property in question. There could, therefore, have been no valid claim or title to this property existing or outstanding in any one else. The character of the claim of Walsh and Trent is in no manner designated. In regard to this the complaint is silent, and whatever it was it must have been without merit and sham and frivolous. It cannot be said that, .by the settlement of such a claim or matter of controversy, that the respondent acquired or secured the said property, or that he thereby procured or obtained from Trent and Walsh, a perfect and complete title to the premises, save and except three hundred and fifteen linear feet thereof; or that by the deed executed by them, he became seized and possessed of the same and the title thereto; for upon the showing of appellant himself, the respondent held the complete and absolute title to the property. It does not, therefore, appear that the settlement of this dispute was in any way beneficial to the respondent. It did not add to the strength of the title which he already held. The appellant will be presumed to have stated the contract as strongly in his own behalf as possible ; especially will this be presumed when it appears that this is an amended and supplemental complaint. The character of the dispute or matter of controversy nowhere appears in the complaint. The court should be fully apprised of this. The contract should not admit of doubt or suspicion; for example, as to its mutuality, as to its being one not opposed to public policy, or one illegal in its nature. The contract should not be ambiguous, or vague or uncertain. The consideration should appear upon its face to be fair, just and reasonable. Can this be said of this consideration, when the appellant fails and refuses; for such refusal will be presumed when, after the sustaining of a demurrer, the party refuses to amend, to set forth fully the nature and character of the consideration. The court, in such a case as this, when called upon to exercise the high power of compelling the execution of a contract in specie, should be informed of the entire nature and character of the contract, so as to determine for itself whether or not it is one which good conscience should enforce, free from objection and fair, just and reasonable, and equal in all its parts. The statement that “the services were a fair and reasonable compensation for the interest so to be acquired ” is the statement of a conclusion of law. The facts showing the character of the consideration should be before the court in this case, before it should be called upon to say that such a contract is fair, just and reasonable in all its parts. We cannot, therefore, say that this consideration is shown to be free from objection, or that it is fair, just and reasonable, and equal in .all its parts. And we are of opinion that, in refusing to grant specific performance of the contract upon this ground, the court exercised a sound judicial discretion. As authorities sustaining this view, reference may be had to Henderson v. Hays, 2 Watts, 148; Graham v. Pencoast, 30 Pa. St. 89; Seymour v. Delancy, 15 Am. Decs. 270; Pomeroy on Specific Performance of Contracts, sec. 35, n. 1; Moak’s Van Sant. Pl. vol. 1, 898; Joseph v. Holt, 37 Cal. 250; Colson v. Thompson, 2 Wheat. 336; People’s Bank v. Adams, 43 Vt. 195; Morrison v. Rossignol, 5 Cal. 65; Johnston v. Glancy, 28 Am. Decs. 45.
But, if we had any doubt as to the correctness of the view as above stated, the record discloses another, and we think an insuperable objection to the grant of the relief demanded. It does not appear that the appellant has performed his portion of the contract set forth in the complaint; nor is there any averment of an offer to do, or of a readiness and willingness to do, all the material acts required of him by the contract. The contract was, that, in consideration that the appellant “would render services to said defendant in and about compromising and settling a certain conflicting claim and matter •of 'controversy then existing between one Larry Walsh and Lamartine 0. Trent and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this ■plaintiff, by a good and sufficient deed, an undivided one-third of said property so acquired and secured by said settlement or compromise.” The .consideration, therefore, proceeding from the respondent was, that this dispute and controversy in relation to the whole of the property should be settled and compromised before he •should be entitled to a deed for a one-third interest therein; whereas, it appears that such settlement was had only as to about two-thirds thereof. The language, “so acquired and secured by said settlement and compromise,” in the above connection, will not be so construed as to mean that, if a part only was so acquired, ■that there should be a deed given for the appellant’s alleged interest, pro tanto. If such a construction was intended by the appellant to be placed upon it, so important an allegation should have been pleaded by direct averment, and not by recital. Therefore, even if the title of the respondent had been jeopardized by the claim of Walsh and Trent, nevertheless, the consideration being an entire one, the appellant must have fully complied with the terms of the contract upon his part before a court of equity would decree a specific performance. In this case, such performance was a condition precedent to his remedial right. Pomeroy on Specific Performance of Contracts, sec. 323; Agard v. Valencia, 39 Cal. 292; Denniston v. Coquillard, 5 McLean, 253; Adams’ Equity, 82; Vincent v. Lessee of Huff, 4 Serg. & R. 297; Ryan v. Dunphy, 4 Mont. 342. From what has been already said, it is plain that it does not appear from the complaint whether or not the consideration is one which a court of equity ought to enforce, or whether it is one which it could enforce against the appellant. The remedial rights to specific performance of the contract should be mutual, ah initio.
“ It is a familiar doctrine that if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement.” Pom. on Specific Performance of Contracts, sec. 164. “The right to a specific execution of a contract, so far as the question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either against the other, the court would coerce a specific performance. A party, not bound by the agreement itself, has no right to call upon the court to enforce performance against the other contracting party by expressing his willingness, in his bill, to perform his part of the agreement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its originally obligatory character.” Pom. Cont., supra, sec. 163, n. 1. Where there is a failure, as in the case before us, to indicate the nature and character of the consideration, how can the court determine whether or not the remedy and obligation under the contract are mutual?
It appears both from the record before us and the argument of the appellant that the only question raised, either here or in the court below, was in relation to the sufficiency of the consideration to' sustain the decree for specific performance. The averments in relation to the appellant being let into possession, and outlay of money upon the faith of the contract, are not relied upon. For the foregoing reasons, the ruling of the court upon the demurrer in relation to the sufficiency of the consideration was, in our opinion, correct. In such a case as this the court does not necessarily declare the contract void, but will leave the party to his remedy at law.
The judgment is affirmed, with costs.
|
[
-20,
-27,
14,
-14,
73,
7,
43,
-59,
18,
40,
-5,
-21,
32,
-36,
1,
-7,
-51,
-77,
16,
15,
34,
-30,
-3,
-20,
14,
-31,
-51,
-22,
-8,
9,
-14,
-7,
-63,
33,
39,
21,
15,
-63,
-10,
-32,
41,
24,
-9,
26,
16,
18,
-41,
-46,
56,
-16,
53,
-29,
-5,
0,
-15,
-26,
16,
40,
-15,
38,
-8,
-32,
19,
1,
13,
13,
38,
-27,
-8,
-22,
-50,
59,
73,
-4,
21,
-52,
-35,
-51,
0,
1,
-12,
-6,
-2,
-11,
57,
46,
-1,
38,
-18,
74,
15,
0,
-15,
30,
-7,
23,
-16,
6,
-55,
76,
75,
8,
-16,
36,
6,
-33,
-28,
3,
2,
25,
-25,
13,
66,
-56,
-20,
6,
-4,
-28,
38,
-37,
8,
-20,
33,
13,
-21,
-17,
-17,
-13,
-12,
20,
-23,
-33,
-6,
9,
-33,
-36,
6,
2,
-43,
63,
43,
-77,
20,
-60,
-3,
-3,
4,
-25,
-3,
-31,
5,
20,
35,
34,
20,
-58,
24,
-1,
38,
-21,
53,
19,
49,
13,
-9,
-11,
-10,
-44,
-15,
13,
-19,
40,
-34,
-26,
17,
-25,
36,
-96,
0,
-25,
25,
-9,
26,
-42,
38,
-19,
3,
-4,
8,
34,
38,
0,
-7,
12,
-41,
26,
21,
-38,
14,
-31,
7,
-89,
-19,
13,
-96,
36,
67,
25,
11,
20,
-24,
-14,
-54,
78,
-11,
41,
31,
-45,
27,
-12,
-18,
31,
-14,
9,
23,
-9,
-1,
-4,
-7,
10,
-11,
-7,
41,
-58,
-56,
-15,
31,
-33,
29,
-2,
-33,
-46,
-27,
-62,
15,
10,
-10,
4,
-6,
47,
0,
4,
0,
4,
-11,
-31,
-12,
-7,
-62,
-48,
-21,
-22,
29,
48,
22,
-58,
-39,
1,
16,
13,
-17,
-26,
56,
27,
-27,
-20,
22,
2,
0,
2,
-3,
12,
-15,
6,
13,
-21,
-30,
17,
-39,
-8,
-37,
-9,
7,
-50,
17,
24,
-10,
17,
68,
18,
-21,
-46,
42,
-19,
22,
19,
-40,
37,
56,
-12,
-27,
-1,
-7,
0,
47,
5,
36,
-24,
5,
-25,
33,
3,
-41,
0,
15,
51,
-12,
14,
-40,
-13,
9,
-4,
15,
-25,
-21,
10,
32,
52,
22,
-77,
37,
35,
-21,
-9,
41,
47,
31,
-48,
18,
-6,
-13,
2,
-11,
12,
9,
13,
14,
-45,
16,
55,
30,
-1,
42,
-27,
0,
-5,
-77,
1,
32,
-17,
-76,
46,
30,
-88,
27,
-12,
-24,
-7,
-58,
24,
14,
8,
7,
-4,
60,
-19,
32,
17,
-21,
-22,
-42,
-7,
0,
52,
-27,
42,
19,
-68,
-39,
-43,
50,
42,
5,
-17,
-39,
-54,
30,
-48,
-19,
-27,
45,
-8,
-15,
-21,
56,
-51,
10,
21,
25,
58,
44,
37,
10,
-6,
32,
-8,
69,
-42,
-31,
5,
3,
17,
49,
-15,
-16,
8,
5,
-24,
-38,
20,
-25,
17,
49,
-13,
5,
-31,
-4,
28,
42,
29,
-31,
-2,
-18,
-3,
-18,
17,
44,
10,
28,
8,
100,
34,
35,
-11,
-12,
1,
57,
-10,
-14,
94,
-29,
12,
0,
-55,
3,
45,
40,
-21,
-18,
-31,
-1,
37,
6,
11,
-17,
-16,
-29,
1,
-8,
50,
-26,
-24,
-17,
-7,
-35,
-19,
-45,
-47,
48,
18,
-10,
-9,
8,
15,
22,
27,
34,
6,
-17,
93,
-1,
-11,
43,
-50,
0,
66,
34,
-23,
17,
-10,
27,
-27,
-2,
52,
28,
45,
-24,
-8,
94,
0,
-41,
-50,
-23,
-18,
6,
6,
6,
40,
-25,
-17,
-6,
-34,
24,
0,
-71,
22,
-27,
24,
46,
-23,
-4,
-20,
95,
-21,
-21,
38,
11,
-47,
33,
19,
8,
33,
-47,
-43,
7,
25,
49,
7,
-47,
15,
-56,
23,
32,
2,
-18,
-31,
-44,
26,
44,
1,
-57,
-53,
-2,
-31,
-12,
12,
11,
22,
22,
-3,
-33,
13,
61,
10,
-58,
17,
-14,
61,
25,
23,
12,
-23,
-19,
-17,
-26,
-6,
-29,
16,
19,
-8,
7,
28,
-3,
27,
24,
15,
31,
0,
52,
37,
12,
-39,
-16,
20,
12,
-26,
-26,
-21,
-84,
34,
-33,
-25,
-2,
63,
-25,
36,
-31,
71,
-28,
-9,
29,
-26,
-9,
22,
-36,
31,
-3,
9,
30,
-26,
-18,
36,
13,
-6,
-12,
26,
37,
22,
-38,
-9,
63,
-18,
0,
-23,
-3,
-28,
-1,
64,
32,
-6,
-9,
-33,
-6,
-15,
-40,
-23,
-20,
34,
4,
-61,
28,
-45,
50,
-3,
-1,
-26,
-42,
34,
-13,
-9,
7,
6,
-24,
13,
-17,
3,
22,
-51,
11,
-11,
-1,
-32,
32,
22,
-11,
-21,
-24,
-16,
5,
-34,
43,
3,
36,
-24,
4,
-23,
-20,
18,
-16,
-55,
-2,
-11,
38,
25,
28,
-26,
10,
-6,
-24,
20,
63,
46,
-18,
18,
-29,
-75,
27,
-5,
-67,
10,
-11,
-66,
-11,
59,
29,
0,
33,
-32,
-51,
-26,
44,
39,
-43,
71,
40,
-68,
-62,
13,
-53,
-43,
70,
16,
-13,
9,
-14,
-54,
-39,
-28,
23,
5,
9,
46,
-21,
21,
18,
-16,
46,
90,
23,
-3,
57,
-4,
-7,
34,
-45,
-1,
40,
-37,
23,
6,
-31,
-15,
1,
-38,
-56,
-59,
-50,
-37,
-57,
-14,
13,
0,
-7,
14,
6,
45,
41,
-1,
-16,
44,
-33,
-40,
10,
-21,
-10,
-13,
-16,
4,
10,
-16,
-22,
12,
6,
38,
17,
-8,
26,
-4,
-23,
14,
5,
-20,
-2,
3,
95,
-39,
-13,
-25,
-37,
-57,
25,
-52,
-17,
-32,
35,
-6,
-51,
35,
-12,
-14,
-42,
40,
-21,
-11,
-31,
-53,
28,
-65,
-24,
19,
18,
-16,
-71,
52,
1,
-7,
54,
14,
-41,
-23,
5,
16,
-35,
52,
15,
13,
40,
-38,
66,
20,
-49,
5,
-13,
34,
-43,
24,
27,
-12,
-11,
16,
-27,
-15,
-32,
-13,
-13,
-12,
1,
-97,
-4,
18,
-26,
28,
-16,
3,
-39,
34,
-10,
0,
7,
55,
-35,
-41,
-20,
-10,
-3,
70,
-11,
13,
41,
36,
52,
-24,
-7,
26,
-26,
8,
-12,
24,
9,
75,
-52,
22,
5,
-2,
-54,
-14,
22,
-7,
-50,
15,
22,
-1,
30,
-11,
16,
-41,
46,
-33,
19,
12,
3,
19,
21,
31,
-58,
-33,
-21,
-49,
6,
-84,
-10,
47,
-23,
-9,
-16,
36,
-14,
19,
34,
-39,
-3,
-21,
26,
-14,
-2,
-37,
-4,
-7,
43,
-2,
44,
22,
-82,
22,
9,
-9,
-41,
-14,
-6,
5,
1,
43,
-21,
18,
24,
-45,
-7,
-2,
-31,
14,
-39,
-21,
-16,
-4,
45,
-20,
18,
22,
27,
-20,
-30,
22,
18,
57,
-51,
0,
-1,
20,
51,
-15,
32,
6,
0,
-4
] |
Galbraith, J.
This was an action brought by the appellants to recover damages for the alleged wrongful attachment of a quantity of buffalo robes which were claimed to be the property of the appellants, but which they allege had been attached by the respondents as the property of J. J. Healy & Bro., at St. Louis, Mo., in August, 1876, in an action brought by the respondents against' J, J. Healy & Bro. in the circuit court of Saint Louis county, state of Missouri. It appears from the evidence contained in the record that the cause of action in which the attachment was issued was an indebtedness claimed to be due from J. J. Healy & Bro. to respondents. The evidence also indicates that the property in question was purchased by the appellants from J. J. Healy & Bro. before the attachment.
The introductory portion of the statement on motion for a new trial contains the following recital of facts which bear upon the question hereafter considered, and is as follows: “The buffalo robes were a lot consisting of thirty-four hundred and eighty robes, in two hundred and eighty-four bales, marked by having a tag or label on each bale, upon which was written, ‘ W. S. Wetzel, St. Louis, Missouri.’ They were consigned to George A. Baker, of St. Louis, Missouri, on account of advances by him, amounting to something over $20,000, made to plaintiffs, which were to be, and were, consigned to said George A. Baker, and shipped to him accordingly, he paying freight, and were attached before they reached the hands of the consignee and while they were in the hands of the common carrier, to whom they had been intrusted for delivery to said consignee.” The statement does not purport to contain all the evidence, but, as itself recites, “was all the testimony in said case bearing upon the propositions upon which the court instructed the jury.”
The above recital of facts appears to be a brief abstract of the evidence contained in the statement, and a careful examination of the evidence warrants us in concluding, that each fact is not only uncontradicted, but that there is no attempt at controversy in relation thereto. The statement also contained the following evidence bearing upon the question involved, and explaining the above recital of facts, of which there is no attempt at contradiction. George A. Baker was asked the following question:
“ Q. 4. You say in your former deposition that Wetzel & Co., the plaintiffs, were largely indebted to you; that the robes were to be consigned to you on account of it, and that they were soshipped and consigned to you. Do-you say that they were in fact so indebted to you at the time of the consignment mentioned? If so, in what sum? Give the exact amount as near as you can get at it. Do you mean, now, to say that said goods were so consigned and shipped on account of the arrangement above stated; and, if so, how much did you realize from the same? And how much did you place to the credit of said plaintiffs? ”
“ A'ns. I do; in the sum of $11,726.21, on account, besides a note of $5,000, with interest due at the date of the attachment, of $291.66, making a total of $20,018.17. The goods were consigned to me as stated. The net amount of sales was $15,383.91, which amount I placed to their credit.”
The same witness, who was the consignee, also testified that he was notified, both by letter and the bill of lading’, of the consignment and shipment of the goods to him. The bill of lading' showed the consignment of the goods to Baker, he paying freight. The goods were released from the attachment bjr the respondents and taken possession of by Baker, sold by him, and the proceeds appropriated to the payment of the indebtedness of W. S. Wetzel & Co. The highest market price of the goods, during the period of the attachment, was $5 per robe.
The objections of the appellants are to two instructions of the court, either of which was fatal to their case.
The first instruction was as follows: “ The evidence, without conflict, in this case shows that the goods in question were shipped to Geo. A. Baker, consignee, on account of past advances, and the bill of lading showing that such consignment was made to him, he paying freight, and it appearing without contradiction that the said goods at the time of the alleged trespass were so in possession of said consignee, the said plaintiffs have failed to show such ownership, possession, or right of possession, in said property, as will enable them to recover in this action, and you will find for the defendants.”
The question presented by the objection to this instruction is, which of the parties, viz., the appellants, being the consignors of the property in question, or Geo, A. Baker, the consignee thereof, should bring the action to recover damages sustained by reason of the attachment. As before observed, the facts that the goods in question were shipped to Geo. A. Baker; that the shipment was on account of past advances; and that he was the consignee thereof, paying freight, as shown by the bill of lading, are not contradicted. The language of the instruction: “ And it appearing without contradiction that the said goods were so in possession of said consignee,” is simply the statement of a conclusion of law from the facts before stated in the instruction, that said consignee was in the constractive possession of the goods in question. It must be borne in mind that this is not an action against the common carrier, but against one who has committed an alleged injury by procuring a writ of attachment to be issued against property when in the actual possession of the carrier. It is an action of trespass. In order to support this action, therefore, the party bringing the same should have the actual possession, or the right to the immediate possession, of the property. To maintain an action of trespass for the wrongful taking of goods, a person must have had, when the goods were taken, the actual or the constructive, or a general or a special property in them, and a right to the immediate possession. Wait’s Actions and Defenses, vol. 6, p. 101. The property in this instance being in the actual possession of the carrier, it must have been, under the circumstances, shown by the evidence, in the constructive possession of the party, being either the consignor or consignee, who had the right to its immediate possession; that is, the right to the possession thereof at the time of the trespass. The delivery to the common carrier prima facie vested the right to the immediate possession of the property in the consignee, Baker. “The law implies that, by delivery to the carrier, the goods become the property of the consignee and at his risk.” . . . “The delivery to the carrier presumptively vests the property in the goods in the consignee.” . . . “In general, the property vests in the consignee by the mere delivery to the carrier.” . . . “If goods by a bill of lading are consigned to ‘A,’ he is prima facie the owner.” 1 Chitty on Pleading, p. 6. “The effect of a consignment of gcods by a bill of lading is to vest the property in the consignee.” 2 Kent’s Com. (10th ed.) p. 698.
The right of property draws to it the right of possession. Putting out of view, therefore, for the j>resent, the fact that the goods were shipped and consigned to Geo. A. Baker on account of past advances, he paying freight therefor, the fact alone that he was the consignee thereof, prima facie entitled him to the immediate right of possession, and presumptively, as between him and the appellants, he was the proper party to bring the action for damages.
How does the -fact that the property was shipped and consigned to Geo. A. Baker on account of past advances, he paying freight therefor, affect this presumption? This question will be best solved by a careful analysis of the nature of the transaction as shown by the testimony. The facts recited in the statement, that the goods “were consigned to Geo. A. Baker ... on account of advances made by him, amounting to somewhat over $20,000, to plaintiffs, which were to be and were consigned to said Geo. A. Baker, and shipped to him accordingly, he paying freight,” taken in connection with the uncontradicted testimony of appellants’ witness, Baker, viz., that the appellants were indebted to him in more than the above amount; that the robes were to be consigned to him on account of this indebtedness; and that, “on account of the arrangement above stated,” they were so shipped and consigned to him by delivery on the steamboat; and that he placed the amount realized from the sale of the goods to the credit of respondents, and also that the value of the property would not reach the indebtedness, point distinctly to a previous agreement or understanding between respondents and Baker that this specific lot of robes was to be shipped to Baker, he paying freight, to be sold by him, and the proceeds appropriated to the payment of the indebtedness due from appellants to him. We think that the effect of such a transaction is to vest the title to the goods in the consignee upon delivery to the carrier, and consequently the right of action for damages for a trespass thereto is in him. “If . . . the assignee has made advances upon the goods with the agreement that they shall be shipped to him to be sold in order that he may retain the proceeds for his reimbursement, or if, being a creditor of the consignor, the goods are delivered to the carrier to be shipped to him in satisfaction of his debt according to a previous agreement to that effect, the title to the goods will vest in him upon delivery to the carrier. . . . The legal presumption is that when goods are sent to a consignee, the title to them vests in him as soon as the shipment is made.” Hutchinson on Carriers, sec. 135, and cases cited.
Halliday v. Hamilton, 11 Wall. 560, was a case in which the decision was rendered upon the following facts: “In 1867 Sherwood, Harris & Co., commission merchants of St. Louis, had a standing agreement with Hamilton & Duncan, of New Orleans, to ship produce to them and to draw drafts on the shipments, which they were to accept and pay. In case the proceeds of any shipment left a balance, they were to apply the proceeds of any other shipment in payment of it. At this time Cole Bros, were the correspondents in St. Louis of Hamilton & Duncan, and were advertised to make advances on shipments made to them, and often during the season of '1867 made advances upon shipments to this house by Sherwood, Harris & Co. In this condition of things the transaction occurred which was the subject of the controversy. On the 31st of August, 1867, Sherwood, Har ris & Co. purchased of Halliday Bros., of Cairo, Illinois, through their agent, one Booth, in St. Louis, one thousand two hundred and fifty sacks of corn lying at Price’s landing on the Mississippi river, a hundred and fifty miles, more or less, below St. Louis, and a short distance above Cairo, and obtained an order for the delivery of the corn. This order they handed over to the agent of the steamboat Bee, then at her wharf in St. Louis, who issued a regular bill of lading to deliver the corn to Hamilton & Duncan at New Orleans. On the same day Sherwood, Harris & Co. drew their bill of exchange for $2,500 on Hamilton & Duncan, and in it told them to charge the same to this specific shipment. At this time there was a large balance due Hamilton & Duncan on account of previous shipments of produce. This bill of exchange was taken to Cole Bros, for discount and sold, indorsed and delivered to them with the bill of lading attached by Sherwood, Harris & Co., to whom they paid the proceeds. Shortly after this Cole Bros, deposited the bill of exchange thus accompanied with the bill of lading with a banking house in St. Louis, which sent them forward, and Hamilton & Duncan accepted the bill of exchange without notice of any difficulty in the matter, and paid it at maturity. In a day or two after the bill of lading was issued and transferred to Cole Bros, the steamboat Bee proceeded on her voyage to New Orleans as far as Price’s landing, and having obtained the corn, stopped at Cairo, arriving there September 5th. On the day, however, before she got there, Booth, the agent of Halliday Bros., at St. Louis, telegraphing to them that Sherwood, Harris & Co. had failed, and had not paid for the corn, and had no effects in St. Louis, directed them to stop' the delivery of the corn. Thereupon Halliday Bros, got an attachment, and upon the arrival of the steamer at Cairo the corn was levied on, and taken from the possession of the boat by virtue of the same. Halliday Bros, stated to their agent, Booth, his impression was. that “they attached the corn.” These attachment proceedings resulted in the sale of the corn and the payment of the net proceeds by the marshal to Halliday Bros. Hamilton <& Duncan thereupon brought trespass against Halliday Bros. The jury found for the plaintiffs, and judgment accordingly. Under the foregoing state of facts, the right of H. & D. to bring the action must have arisen from the agreement, implied or presumed, from the standing agreement with S., H. & Co., as above stated, as well as the fact that a bill of exchange was drawn by S., H. & Co. on H. & D. against the specific shipment of corn, and paid by them, and also that the bill of lading attached to the bill of exchange was to deliver the corn to H. & D. and came into their possession.
This with the exception of the matter of the bill of exchange is substantially the condition of the case at bar. For in the case at bar there is an agreement to ship the goods to pay a previous indebtedness, a shipment thereof in accordance with the agreement, and a bill of lading consigning the property to Baker, which came into his possession before the attachment. “ Usage has made the possession of such document (a bill of lading) equivalent to the possession of the property itself.” Broadwell v. Fallon, 77 Ill. 305.
The question simply is, Do the facts show an agreement upon sufficient consideration to appropriate the specific property to the purpose indicated by the agreement? If so, the legal title thereto vests in the consignee on its delivery to the carrier, just as in the case of a shipment of goods upon an executed consideration by a vendor to a vendee. The distinction between the cases as to the draft can make no difference as to the principle involved, for a previous indebtedness is as much a sufficient and valuable consideration as a draft honored against a specific shipment. It is certainly just and reasonable that under such circumstances the right of action for damages should be in him for whose use and benefit the shipment and consignment of the goods are madq. In Halliday v. Hamilton, supra, the court, by Justice Davis, says: “ There is no difficulty on principle and authority in determining the rights of the parties to this controversy. On the conceded facts of the case there can be no question that the legal title to the one thousand two hundred and fifty sacks of corn passed to Hamilton & Duncan, before the levy of the attachment by Halliday Brothers; and if so, the judgment of the circuit court must be affirmed. ... If this were the case of a mere agreement to ship produce in satisfaction of antecedent advances, which will not in general give the factor or consignee a lien upon it for his general balance until he obtains actual possession of it, the attachment would hold the property. But the agreement in question is of a different character and rests upon a different legal principle. It appropriates specifically one thousand two hundred and fifty bags of com to Hamilton & Duncan, with an intention that they shall sell it to pay the draft drawn against it, and if there is any surplus remaining after this is done, to apply it in liquidation of the advances previously made for Sherwood, Harris & Co. And this appropriation did not rest in intention merely, for it was executed, as far the parties in St. Louis could execute it, by the transmission of the bill of lading to Hamilton & Duncan. As soon as the com was deposited with the common carrier, who was the bailee for the purpose, the title to it and the right of property in it was changed and vested in Hamilton & Duncan, to whom it was to be delivered. This is the effect of all the cases on the subject. A contrary rule would defeat the object which the parties to the agreement intended to accomplish by it, and would seriously embarrass commercial men in their dealings with each other; for it can be readily seen that the mode of transfer adopted in this case is necessary for the purposes of commerce. If Hamilton & Duncan had purchased the corn outright they could not have got a better legal title to it than they acquired under the admitted facts in this suit. The legal title to the property passed to them to carry out certain designated purposes, and they had the right to the undisturbed possession of it until these purposes were effected. It may be said that Sherwood, Harris & Co. had an equitable interest in any surplus that might remain of the proceeds of the corn after the claims of Hamilton & Duncan were satisfied, and that this equitable interest was liable to attachment by the laws of Illinois. 1 But this liability,’ says Chief Justice Barry in Gibson v. Stebbins, 8 How. 384, ‘ will not authorize the attaching creditor to take the property out of the hands of the legal owner before bis claims upon it are discharged.’ Besides, it is clear from the evidence that the proceeds from the corn fell far short of liquidating the indebtedness due Hamilton & Duncan from Sherwood, Harris & Co.”
So in the case at bar, the highest value of the property at any time during the attachment did not reach the amount of the indebtedness from the respondents to Baker.
In Gibson v. Stevens, supra, the facts as stated in the opinion of the court were as follows: The pork and flour were purchased by McQueen & McKay, at Fort Wayne, in the state of Indiana, on the 4th of April, 1844. The articles were in the warehouses of the respective vendors at the time of the sale, and the purchasers took from each of them a written memorandum of the sale, with a receipt for the money, and an engagement to deliver them on board of canal boats soon after the opening of canal navigation. There was also a written guaranty from the respective vendors that the articles sold should pass inspection. By the order of McQueen & McKay, they were to be sent by canal boat to Ludlow & Babcock, their agents at Toledo, in the state of Ohio, to be held by them until they received orders from McQueen & Me- Kay. The documents executed by the warehousemen, hereinbefore mentioned, transferred the property and the possession of the pork and flour to McQueen & McKay, and the vendors from that time held it for them, and as their bailee. Being thus in possession, McQueen & McKay afterwards, on the 17th of April, in the city of New York, in consideration of the advance of money mentioned in the statement of the case, delivered to Gibson, the plaintiff in error, the evidences of title which they had received from the vendors, indorsing thereon an order upon them to deliver the property to Gibson. They at the same time delivered a letter to Ludlow & Babcock, their agents at Toledo, stating that they had received an advance from Gibson upon this property, and directing them to deliver it to him and to comply with his order. Gibson was a commission merchant, residing in New York, and it is admitted that this transaction with McQueen & McKay was in the usual course of business. On the 27th of April, ten days after this transfer, the property was seized by the defendant in error as sheriff in an attachment issued on the same day at the suit of the bank, to obtain satisfaction for the draft due to it from McQueen & McKay. At the time of the attachment the pork and flour still remained in the warehouse at Port Wayne, and neither warehousemen nor the attaching creditor had notice of the transfer to Gibson. The agent dispatched by him arrived two days afterwards and claimed the property. The sheriff refused to deliver it up, and this action of replevin was thereupon brought to recover it. The state of facts upon which Gibson claimed to establish his interest in the property must, therefore, in brief, have been, that he, being a commission merchant in New York city, made advances in the usual course of business to the owners of the goods stored at Port Wayne, Indiana, receiving from them their evidences of title, and the letter to their agent at Toledo to deliver the property to him as above stated. In delivering the opinion, Chief Justice Taney says: “ Nor as respects the legal title can there be any distinction between the advances made by Gibson and an actual purchaser. To the extent of his advances he is a purchaser, and the legal title was conveyed to him to protect his advances. It is not like the lien of a factor who makes advances for his principal upon goods in his possession. But even in that case the property cannot be withdrawn from his hands until his advances are repaid. But in the case before us the title of Gibson is not a mere hen. The legal title, the right of property, passed to him, and McQueen & McKay retained nothing but an equitable interest in the surplus, if any remained after satisfying the claims of Gibson.” . . . “Neither is the equitable interest of McQueen & McKay in the surplus (if any remain) material to the decision. This equitable interest is, no doubt, liable to attachment by the laws of Indiana.” Then follows the language before given in the case of Holliday v. Hamilton.
According to this decision, Baker was a purchaser of the goods “ to the extent of his advances,” and the legal title was conveyed to him to protect his advances. As we have seen, the advances by Baker to the appellants were in excess of the value of the property. At no time, therefore, after the shipment of the goods in question, was there any interest therein belonging to the appellants, or possession thereof, which gave them the right of action for damages for a trespass thereto.
It is claimed that there was a conflict of testimony as to the facts assumed by the court, contained in the instruction, and that they should have been submitted to the jury. As we have before stated in relation to these facts, they were not contradicted, nor was there any attempt at controversy in relation thereto. They were entirely as to the question of the disability of the appellants to sue, which we have found to be the case both from the uncontradicted facts and the law applicable thereto. If the case had been submitted to the jury and a verdict rendered for the appellants, it would have been the obvious duty of the court to set it aside. There has been no claim that additional evidence bearing upon these facts is available, and the presumption is that all the evidence in'the case has been submitted.
Under the above state of facts the judgment must have been for the respondents, and a submission of them to the jury was vain and useless.
The appellants, having no right of action, the instruction to find for the respondents was correct. This being decisive of the case, it is not necessary to consider the objection to the second instruction.
The judgment is affirmed, with costs.
Judgment affirmed.
|
[
3,
-33,
64,
10,
36,
-36,
48,
-54,
38,
1,
-24,
-21,
17,
12,
-17,
80,
-31,
-73,
52,
-23,
72,
-25,
-15,
-37,
28,
17,
-20,
-1,
0,
2,
27,
67,
32,
-6,
28,
-2,
-11,
-65,
13,
-96,
44,
45,
-38,
-4,
42,
94,
26,
-60,
36,
-62,
7,
-91,
-10,
-13,
-7,
-5,
-1,
20,
-26,
12,
44,
-52,
11,
-48,
-36,
-76,
58,
11,
-86,
-7,
18,
16,
52,
-30,
-31,
-79,
-43,
-34,
-4,
2,
29,
-3,
20,
-3,
-27,
-9,
-9,
-4,
7,
107,
-39,
-20,
7,
49,
3,
14,
12,
45,
-52,
27,
8,
-18,
5,
26,
14,
8,
-13,
-29,
-28,
25,
8,
-13,
14,
-33,
-6,
-64,
31,
-80,
35,
15,
27,
-2,
18,
1,
-41,
13,
12,
26,
52,
53,
-8,
12,
-24,
37,
-24,
-41,
22,
31,
91,
47,
-28,
-33,
-66,
-59,
-53,
65,
30,
-10,
-25,
-38,
-31,
18,
30,
-25,
60,
-50,
29,
22,
56,
-20,
1,
-24,
20,
-16,
-13,
18,
-67,
-62,
31,
-12,
-46,
14,
1,
26,
13,
26,
-38,
-20,
-8,
25,
26,
17,
-35,
22,
22,
-22,
10,
22,
29,
25,
92,
-4,
-46,
35,
-30,
10,
16,
-39,
9,
22,
6,
-30,
-41,
-23,
1,
45,
48,
-32,
12,
-35,
4,
-6,
21,
43,
-25,
-32,
11,
-45,
-3,
-10,
-70,
34,
-23,
-9,
-44,
-26,
-2,
39,
-12,
-17,
-76,
-6,
-20,
-54,
-32,
-26,
14,
-26,
-29,
19,
0,
-2,
-1,
-96,
31,
6,
-5,
26,
-39,
54,
24,
12,
33,
-7,
12,
-7,
5,
50,
-50,
-22,
-16,
31,
-38,
15,
25,
-34,
9,
-66,
32,
83,
-40,
-28,
68,
38,
39,
27,
6,
-16,
14,
48,
-30,
-23,
9,
-36,
18,
-44,
18,
14,
-16,
-17,
-66,
-35,
17,
-2,
17,
42,
3,
42,
32,
17,
-24,
-32,
17,
-35,
-28,
24,
29,
29,
8,
-4,
-28,
33,
-8,
-36,
-13,
1,
57,
25,
77,
17,
-43,
-16,
23,
34,
44,
-41,
-51,
4,
-14,
31,
13,
-70,
-4,
-59,
-53,
-17,
-15,
49,
54,
-4,
-19,
80,
-5,
-44,
-27,
19,
39,
-46,
40,
-1,
-18,
-40,
4,
5,
-5,
13,
0,
74,
31,
51,
33,
-2,
51,
-11,
-7,
-55,
-72,
-10,
14,
-21,
-25,
35,
-18,
-31,
15,
9,
-18,
-79,
22,
5,
-7,
-21,
-44,
-50,
12,
-46,
-21,
-18,
-10,
60,
-23,
81,
7,
20,
-13,
-11,
-48,
-32,
5,
-19,
29,
14,
18,
-42,
-32,
-33,
-4,
25,
0,
-31,
15,
11,
-56,
-8,
58,
-23,
-52,
18,
30,
-55,
69,
22,
73,
-37,
45,
-25,
40,
-17,
-44,
-44,
10,
-17,
26,
-16,
4,
8,
9,
3,
32,
36,
52,
28,
-11,
80,
33,
40,
-17,
74,
34,
36,
-1,
-15,
8,
27,
-11,
50,
23,
-2,
26,
44,
37,
15,
13,
20,
21,
37,
51,
-49,
-26,
56,
25,
-16,
42,
-45,
-39,
17,
26,
8,
16,
14,
4,
23,
23,
45,
-9,
0,
-33,
-10,
-24,
61,
-14,
-29,
-6,
14,
-17,
-28,
-27,
-20,
35,
34,
-41,
29,
-8,
36,
40,
59,
27,
-14,
20,
69,
95,
6,
46,
-51,
4,
-5,
32,
8,
22,
14,
0,
-40,
-35,
38,
-50,
7,
17,
-21,
-28,
10,
-15,
-14,
0,
23,
-6,
-21,
63,
-1,
42,
-51,
14,
34,
-17,
-32,
-33,
-2,
-2,
-31,
29,
20,
27,
-9,
79,
-27,
-41,
42,
-8,
-42,
19,
-19,
-11,
51,
-55,
5,
9,
-32,
-11,
-18,
46,
-34,
-41,
41,
36,
3,
5,
-12,
-11,
-10,
24,
-5,
-7,
-9,
-12,
-33,
38,
22,
-10,
8,
-42,
43,
-12,
-22,
-36,
-7,
47,
7,
-52,
2,
16,
31,
-10,
-34,
-17,
-23,
-5,
-8,
-48,
-24,
0,
61,
24,
-14,
-16,
-5,
-67,
-14,
-27,
-9,
23,
48,
-28,
-18,
-40,
17,
6,
7,
-83,
-10,
17,
-3,
5,
-36,
20,
48,
-26,
74,
-4,
22,
-23,
-42,
-2,
-43,
-18,
33,
-74,
8,
-34,
31,
28,
-3,
-6,
-17,
25,
44,
-68,
27,
11,
36,
-23,
-9,
53,
-31,
29,
-25,
38,
5,
33,
-48,
-78,
-27,
30,
-91,
-37,
35,
-15,
22,
-90,
41,
44,
-11,
-36,
-67,
0,
-1,
2,
-15,
-36,
-28,
-28,
-38,
-26,
-38,
-1,
14,
3,
77,
18,
-66,
-21,
-7,
-66,
-20,
-39,
61,
10,
-5,
7,
11,
31,
-23,
35,
5,
6,
-5,
-5,
-44,
-7,
52,
-37,
0,
16,
39,
56,
42,
-1,
-19,
17,
41,
20,
10,
20,
2,
-87,
6,
13,
44,
24,
-21,
-17,
12,
-52,
-14,
28,
39,
-10,
-11,
9,
-27,
26,
-21,
51,
4,
20,
34,
-11,
-31,
-57,
-59,
-23,
-47,
43,
87,
-81,
1,
29,
2,
-1,
-31,
-24,
-2,
-53,
25,
-13,
0,
-29,
34,
23,
34,
0,
-15,
26,
-7,
-2,
67,
-33,
71,
-10,
-21,
35,
-58,
11,
15,
-1,
-1,
-53,
-47,
-21,
44,
-32,
1,
-29,
27,
-44,
14,
-4,
-33,
28,
41,
49,
70,
-51,
-55,
-3,
-46,
5,
18,
-39,
-67,
6,
-23,
1,
24,
7,
23,
74,
-3,
19,
-14,
-39,
-43,
-10,
-50,
-97,
38,
40,
47,
-40,
-17,
-67,
-30,
19,
15,
-22,
23,
26,
-8,
2,
45,
-39,
-9,
20,
18,
-16,
16,
-46,
-49,
53,
-68,
-9,
-1,
18,
-22,
8,
-10,
-2,
15,
-21,
-41,
-31,
-16,
28,
71,
-55,
33,
32,
-21,
0,
24,
74,
13,
-23,
-5,
16,
54,
-10,
31,
-8,
-11,
26,
-32,
-24,
29,
-4,
47,
30,
1,
91,
-60,
52,
-13,
-13,
10,
-32,
-18,
-1,
-35,
3,
23,
-8,
43,
29,
4,
65,
11,
-12,
17,
-36,
14,
14,
25,
42,
-74,
14,
30,
-26,
22,
1,
-11,
-9,
85,
-47,
23,
45,
10,
-13,
-27,
-61,
-25,
-13,
-10,
31,
29,
0,
34,
-46,
-28,
3,
-35,
38,
-29,
6,
-10,
15,
43,
-79,
-7,
-17,
-77,
47,
-6,
15,
30,
-88,
-19,
4,
44,
-13,
3,
9,
-52,
-46,
-25,
-16,
-25,
0,
-12,
62,
-27,
7,
-7,
69,
-44,
-78,
19,
36,
-5,
16,
-35,
-22,
-7,
33,
37,
11,
-42,
-50,
-48,
27,
34,
11,
-55,
-30,
-53,
-11,
27,
-15,
-6,
31,
46,
-22,
-26,
3,
-3,
32,
13,
-25,
-40,
2,
52,
25,
-29,
6,
-44,
-7,
59
] |
Wade, C. J.
This is a motion to strike out that portion of the transcript purporting to be a statement on motion for a new trial, for the reason that there is noth iug in the record to show that there was either a motion for a new trial filed, or a notice thereof served upon the adverse party, as required by section 287 of the Code of Civil Procedure. That section provides that the partjr intending to move for a new trial must, within ten days after the verdict of the jury or decision of the court, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court or a bill of exceptions or a statement of the case. These provisions of the statute must be substantially complied with before this court can be called on to review the action of the lower court in overruling or sustaining a motion for a new trial. Unless there is a notice or motion, designating the errors complained of, upon which the lower court has passed, there is nothing for this court to review. This is an appellate court, and has jurisdiction to review the decisions of the lower court. Certain questions may be raised in the supreme court for the first time, but questions concerning new trials do not belong to this class. Unless the errors were assigned in the court below in the notice or motion, we have no means of knowing what questions were decided by such courts, and upon such a motion the court will only review the questions determined in the lower court. We cannot establish a precedent declaring that a decision upon a motion for a new trial may be reviewed in this court, when the record does not show that any motion for a new trial was filed in the lower court, nor that any notice of motion, designating the errors complained of, was filed or served upon the opposite party. There is nothing in the record before us to indicate upon what questions the court passed in overruling the motion for a new trial. We are informed that the motion for a new trial was overruled, but the record is silent as to the grounds of the motion, and as to whether there was a notice or motion filed. The recital in tlie statement, which was made up after the notice of motion was or should have been filed, that the appellant relies upon certain errors assigned, cannot take the place of a notice designating the grounds of motion for a new trial served as the statute provides. There is nothing in the record showing that the errors recited in the statement were the errors designated in the notice, or that they raise the questions upon which the court passed in overruling the motion for a new trial. The motion is granted.
(All the judges concur.)
|
[
-24,
12,
13,
-14,
43,
-42,
26,
-36,
6,
5,
19,
12,
-43,
-19,
16,
-6,
-31,
-45,
10,
-25,
10,
4,
30,
-12,
-4,
-5,
-45,
-33,
21,
-12,
24,
6,
-71,
27,
10,
-26,
51,
49,
-6,
-16,
7,
26,
37,
-30,
5,
6,
9,
59,
-25,
-2,
45,
12,
-26,
16,
-55,
25,
-64,
-15,
29,
24,
-4,
45,
-26,
-67,
-46,
-19,
16,
-21,
20,
-27,
-63,
1,
29,
-22,
-66,
-56,
-42,
36,
-6,
28,
24,
49,
58,
-19,
10,
-25,
79,
-13,
20,
-20,
33,
18,
-7,
-33,
-20,
-10,
25,
-39,
59,
26,
-12,
75,
13,
-24,
-33,
-7,
-41,
19,
10,
-9,
64,
54,
-62,
-8,
-34,
-13,
31,
15,
-12,
-74,
35,
29,
27,
20,
0,
48,
7,
36,
-6,
0,
13,
-16,
21,
36,
38,
-9,
0,
-13,
1,
-26,
-8,
-36,
14,
8,
65,
30,
-2,
59,
-17,
19,
-18,
23,
-16,
6,
-21,
-26,
-51,
-20,
30,
23,
60,
41,
-46,
-30,
-26,
69,
-46,
-20,
21,
21,
36,
-3,
30,
-9,
-70,
16,
-17,
-5,
29,
-18,
22,
86,
20,
-56,
2,
-6,
-4,
41,
-16,
1,
-1,
45,
-33,
-20,
48,
-56,
-37,
21,
27,
-10,
-58,
-26,
-5,
12,
-21,
68,
-26,
-58,
53,
49,
10,
-19,
-76,
-4,
-22,
-44,
59,
-30,
6,
59,
-20,
21,
31,
12,
-3,
16,
50,
0,
-16,
39,
29,
14,
-56,
5,
22,
-26,
1,
50,
19,
32,
-26,
10,
70,
1,
-16,
-3,
38,
4,
-2,
-45,
36,
59,
10,
-6,
-10,
1,
6,
-27,
-110,
-31,
23,
100,
-30,
-29,
-50,
22,
22,
-16,
37,
-13,
5,
-57,
-8,
1,
21,
-4,
28,
-68,
49,
81,
-59,
0,
32,
57,
-53,
8,
-6,
-19,
28,
52,
-73,
-26,
6,
35,
-12,
11,
10,
32,
-45,
7,
15,
-3,
-12,
42,
-62,
-33,
2,
-11,
-38,
17,
-14,
35,
25,
3,
-21,
15,
-1,
33,
65,
-39,
-9,
-12,
-24,
19,
-41,
-1,
50,
-40,
-24,
7,
34,
4,
49,
16,
-1,
3,
-29,
-53,
-3,
79,
41,
-27,
-7,
-17,
6,
6,
-5,
-52,
-19,
37,
-48,
1,
-57,
-38,
12,
18,
-46,
-87,
40,
-23,
15,
-6,
61,
-48,
22,
2,
-7,
11,
24,
20,
8,
-34,
-26,
-42,
-57,
-3,
4,
-24,
27,
6,
-53,
-16,
-3,
0,
40,
84,
-16,
-54,
41,
42,
14,
3,
35,
-16,
31,
30,
9,
20,
-23,
-10,
4,
24,
19,
-7,
18,
52,
-6,
-47,
1,
87,
-12,
-5,
-31,
30,
24,
-38,
-41,
12,
3,
-44,
-20,
-22,
-51,
-11,
-6,
43,
10,
-38,
18,
-5,
-19,
18,
-23,
14,
-22,
81,
12,
-24,
54,
13,
-84,
3,
-37,
25,
-23,
27,
8,
2,
-32,
-30,
2,
-2,
29,
-36,
31,
-29,
35,
44,
-29,
16,
49,
-34,
-37,
-9,
-41,
-1,
-29,
-38,
-13,
37,
-40,
-8,
56,
41,
-39,
-1,
-17,
13,
19,
5,
-32,
37,
-22,
32,
-50,
24,
-3,
-62,
40,
-30,
2,
8,
-3,
60,
-61,
-48,
-57,
-33,
-19,
54,
-41,
19,
-37,
20,
-7,
-42,
-8,
-52,
69,
13,
16,
23,
5,
-11,
53,
2,
-6,
0,
-11,
-21,
64,
-33,
-8,
-90,
-62,
-31,
-22,
32,
-29,
-8,
72,
11,
64,
-16,
-10,
27,
-25,
-13,
-10,
5,
-23,
7,
-7,
43,
0,
46,
-27,
7,
32,
39,
5,
17,
9,
50,
-14,
-2,
18,
-4,
-27,
-69,
8,
0,
-45,
7,
0,
26,
6,
-14,
24,
-31,
7,
-11,
20,
-28,
-38,
7,
56,
-22,
-11,
-49,
5,
0,
33,
-32,
-8,
-15,
16,
4,
9,
11,
-72,
0,
14,
-40,
17,
43,
-19,
-63,
37,
23,
-20,
-22,
19,
44,
17,
11,
0,
-57,
56,
21,
42,
-32,
-61,
21,
-13,
-12,
-31,
35,
-8,
30,
-1,
23,
22,
-7,
38,
-13,
-34,
25,
-2,
-8,
33,
37,
2,
-28,
-40,
-13,
-47,
-9,
51,
-48,
51,
-9,
12,
-49,
-4,
16,
-3,
-33,
49,
-12,
48,
28,
11,
-25,
35,
-2,
70,
-32,
31,
-44,
-5,
-40,
-48,
9,
38,
-20,
-33,
-6,
-28,
-32,
7,
29,
-13,
0,
-18,
19,
23,
-27,
7,
-14,
55,
-28,
-11,
-37,
47,
-74,
-6,
7,
-30,
42,
-43,
-54,
-2,
35,
39,
38,
59,
15,
43,
-14,
22,
-13,
87,
13,
0,
-22,
-14,
8,
19,
-21,
7,
33,
-23,
-58,
5,
1,
17,
-4,
14,
-8,
13,
31,
15,
0,
-9,
11,
40,
16,
73,
-63,
12,
-19,
-33,
-19,
18,
6,
11,
-35,
-62,
6,
13,
-15,
-34,
-60,
46,
-8,
1,
17,
-47,
9,
55,
-43,
15,
5,
-36,
72,
27,
-87,
-42,
45,
48,
32,
19,
-60,
-11,
43,
21,
-22,
-5,
77,
26,
4,
36,
-18,
0,
41,
9,
-12,
-7,
-26,
-12,
44,
0,
-18,
64,
32,
-23,
-64,
-30,
4,
4,
18,
-41,
27,
7,
-23,
-5,
39,
-13,
6,
9,
-28,
-7,
73,
-23,
44,
13,
-17,
34,
-11,
16,
17,
4,
4,
-23,
-95,
29,
-4,
33,
-77,
9,
48,
44,
-13,
59,
49,
-13,
-14,
-7,
10,
58,
-30,
31,
24,
15,
-53,
56,
67,
-33,
21,
-6,
46,
-19,
25,
-20,
-14,
-9,
-1,
6,
-43,
11,
66,
-2,
-15,
-40,
14,
6,
-51,
43,
-20,
-14,
42,
4,
-70,
-14,
-31,
-66,
7,
-38,
-26,
2,
-3,
-54,
17,
11,
-32,
-12,
-22,
9,
58,
-12,
-10,
0,
-2,
-43,
-51,
-2,
-27,
-35,
-11,
-19,
19,
35,
9,
-23,
31,
23,
22,
19,
37,
-4,
17,
34,
5,
-15,
-9,
12,
-2,
21,
24,
-32,
12,
30,
-69,
37,
-26,
-24,
-11,
-3,
-66,
2,
27,
-24,
-45,
-3,
-17,
-14,
-7,
-9,
-9,
-1,
45,
0,
-30,
28,
-36,
-10,
-72,
-36,
28,
-68,
-34,
2,
-6,
-31,
-34,
-59,
9,
-61,
6,
-15,
-62,
-26,
28,
-5,
-16,
29,
-6,
50,
-5,
-21,
12,
37,
-28,
3,
-18,
23,
-10,
7,
46,
-21,
2,
40,
-23,
-43,
34,
-4,
-44,
-20,
24,
-7,
1,
-4,
-25,
10,
2,
19,
-8,
68,
20,
30,
-2,
0,
-66,
-52,
3,
11,
-3,
-9,
31,
-28,
20,
-12,
-1,
30,
-38,
-11,
39,
-53,
22,
11,
6,
32,
34,
-85,
-32,
-3,
-58,
-47,
-11,
-18,
47,
-5,
53
] |
Wade, C. J.
This is an action of claim and.delivery, and involves the ownership and right.of possession to six certain oxen, described in the complaint. The plaintiffs allege title and the wrongful taking of said property from their possession by the defendant. The defendant denies the_ title and possession of plaintiffs, alleges title and possession in a third person, and justifies his seizure and possession of the property as sheriff of the county,' under and by virtue of writs of attachment lawfully issued in actions by such third person.
The cause was tried to the court, and there were findings of fact to the effect that the defendant is entitled to the possession of the property; that at the commencement of the action the said property was delivered to the plaintiffs, who now have possession of the same; and that the property is of the value of $450. Thereupon it was ordered that the defendant have judgment against the plaintiffs for the return of the property, or, in case a return thereof cannot be had, for the sum of $450, the value thereof, and for costs of suit. The appellants attack this judgment upon the ground that the same is not au thorized by the pleadings, and specify that the answer does not allege that the property was in the possession of the plaintiffs at the commencement of the action; that the complaint and answer show that the defendant remained in possession of the property, and that the answer does not demand a return thereof. The issue in this action wTas the ownership and right of possession to the property in question. The defendant denied the title and possession of plaintiffs, and alleged title and possession in a third person, under whom he claimed. Upon this issue the court found against the plaintiffs and in favor of the defendant. If the property at the commencement of the- action was delivered to the plaintiffs, the judgment ought to require its return, and if the pleadings do not authorize such a finding, they might, if necessary, be so amended as to conform to the issue tried in the evidence. But we do not think any amendment necessary in the case.
The complaint supports the judgment, and the findings do not contradict the pleadings. In an action of claim and delivery of personal property, where there is an issue as to the title and right of possession and a finding in favor of the defendant, a judgment for the return of the property follows as a matter of course, even if the complaint does not contain a formal prayer for a return thereof. The fact of ownership and the right of possession justifies a judgment for the return of the property. This is not in conflict with the case of Gould v. Scannell, 13 Cal. 431, relied on by appellants, in which it is declared that the judgment of return is in the nature of a cross judgment, and there must be some appropriate averments in the pleadings to put in issue the facts upon which the relief is given. Of course, the answer must contain sufficient averments of fact to authorize the relief awarded. An averment of title and right of possession in the defendant supports a j udgment for return of the property. The vital question in such a case is, who is the owner and entitled to the possession of the property? And the determination of this question settles the rights of the parties. If the plaintiff is not the owner of the property, and has no interest in it or right to its possession, and has not the possession of the property, and the same is in the possession of the defendant pending the trial of title, then a judgment awarding a return of the property to the defendant does not injure the plaintiff, and he cannot complain. He is simply ordered to do what has already been done. The judgment becomes inoperative because it has nothing to act upon. But if upon such an issue, and the title and right of possession is found in the defendant, then a judgment for a return of the property follows as a matter of course. Such a finding would support such a judgment. If the defendant sets up an affirmative right to the property, and there is a finding-in his favor, a return of the property will be adjudged If the right of property is put in issue by the defendant, and the finding is in his favor, the award of a retorno habendo is a matter of course, whether he prayed for a return in his plea or not. King v. Ramsey, 13 Ill. 623; Underwood v. White, 45 Ill. 437.
If the answer states facts as to the ownership or right of possession, sufficient to justify a return, and the evidence warrants it, a judgment of return will be awarded. Lewis v. Buck, 7 Minn. 105. The averment of title of the defendant, or a plea setting up ownership in a third person, averring a right of possession, with a formal traverse of the plaintiff’s rights, is sufficient to justify a judgment for the return of the property. Wells on Rep. sec. 189.
If, therefore, a judgment for return of the property is awarded, as a matter of cour.se, where the right of property is put in issue by the defendant, and the finding is in his favor, it follows that a finding that, at the commencement of the action, the property was delivered to the plaintiff, is immaterial. The finding of an immaterial fact not within the issue tendered will not vitiate the judgment.
Judgment affirmed, with costs.
|
[
-26,
0,
16,
-21,
42,
-25,
45,
1,
16,
23,
30,
-17,
-12,
68,
-1,
3,
0,
-26,
12,
-51,
30,
-28,
35,
-17,
3,
-38,
17,
-14,
-9,
-12,
-28,
-2,
-12,
22,
28,
3,
21,
-27,
-12,
29,
26,
38,
18,
-14,
35,
45,
3,
3,
38,
-44,
23,
-44,
-32,
-21,
-25,
-12,
15,
-25,
16,
-20,
34,
-5,
-8,
0,
-31,
10,
20,
-64,
-40,
-13,
1,
4,
20,
-27,
-15,
-47,
-21,
-19,
0,
44,
50,
0,
39,
-1,
-51,
13,
28,
-29,
-22,
-24,
-44,
18,
-41,
3,
15,
38,
53,
-9,
-32,
-2,
-16,
54,
13,
9,
-17,
58,
-1,
-49,
-15,
0,
6,
12,
18,
-12,
15,
-29,
-8,
-23,
5,
32,
60,
27,
32,
-16,
-4,
16,
3,
17,
28,
69,
50,
31,
-9,
28,
-30,
-38,
8,
26,
53,
-3,
9,
-53,
-47,
-40,
6,
7,
24,
58,
-54,
0,
-24,
35,
0,
33,
9,
3,
22,
25,
20,
0,
63,
-21,
-5,
-29,
19,
19,
-17,
2,
12,
42,
29,
-19,
-22,
-25,
-39,
33,
-39,
19,
14,
-34,
81,
27,
14,
43,
-3,
-6,
12,
34,
-38,
28,
35,
13,
-10,
-3,
-29,
-1,
-1,
-22,
-19,
-10,
-8,
-47,
-5,
-33,
13,
25,
83,
-84,
26,
8,
-42,
5,
-36,
-4,
-9,
0,
39,
28,
-27,
-6,
-3,
7,
18,
-3,
8,
-17,
10,
-7,
22,
5,
30,
-8,
4,
19,
9,
-98,
46,
-22,
-2,
48,
-43,
10,
3,
-72,
12,
-43,
-10,
11,
7,
47,
9,
-5,
-31,
1,
1,
-28,
18,
-17,
-58,
-36,
-13,
46,
-22,
-17,
-35,
-12,
-27,
-11,
-2,
28,
-61,
34,
-11,
45,
6,
-3,
7,
0,
43,
29,
-33,
2,
28,
51,
24,
-14,
3,
3,
1,
6,
-56,
3,
24,
-41,
-43,
50,
6,
-6,
41,
29,
-48,
-50,
46,
36,
-26,
-22,
6,
7,
-32,
-37,
-13,
28,
-7,
13,
-7,
14,
-7,
20,
-12,
-26,
40,
14,
-2,
-7,
13,
-25,
24,
-28,
28,
43,
10,
-42,
3,
-39,
-20,
32,
13,
-82,
8,
55,
49,
3,
-13,
-3,
52,
25,
-8,
-62,
8,
38,
-32,
-21,
-68,
21,
43,
-33,
-4,
-6,
-16,
56,
39,
11,
10,
-33,
10,
1,
-41,
-24,
36,
-32,
-8,
-8,
23,
0,
-54,
-24,
-28,
-35,
20,
1,
3,
-39,
0,
31,
66,
10,
-9,
-31,
10,
10,
-7,
64,
21,
16,
-25,
-20,
-77,
-59,
18,
-1,
0,
-7,
-20,
-25,
-71,
-33,
21,
26,
-26,
-25,
-31,
-48,
22,
14,
-10,
28,
0,
20,
25,
-6,
45,
4,
7,
-40,
31,
-11,
15,
-41,
-56,
19,
-21,
13,
16,
30,
58,
14,
-16,
-61,
-5,
30,
28,
31,
-17,
64,
-51,
-13,
-20,
-19,
22,
12,
-16,
-31,
-7,
-52,
-14,
28,
87,
-9,
32,
28,
15,
-30,
-14,
25,
8,
4,
5,
-44,
2,
1,
6,
58,
25,
-68,
-53,
41,
-31,
31,
0,
35,
-33,
34,
-25,
-21,
-39,
17,
-3,
9,
9,
27,
-6,
-32,
5,
55,
-2,
-34,
-18,
14,
35,
31,
14,
46,
2,
14,
32,
57,
11,
-4,
21,
50,
22,
16,
1,
-26,
9,
9,
-7,
26,
41,
17,
15,
-49,
-44,
-44,
-15,
2,
78,
-5,
0,
-46,
-16,
-8,
-5,
-26,
0,
2,
17,
11,
11,
-18,
-35,
35,
35,
-7,
-22,
51,
15,
-15,
54,
-4,
-2,
19,
23,
20,
-7,
36,
-9,
-67,
-17,
-14,
12,
27,
-23,
-54,
65,
-29,
60,
-19,
7,
13,
15,
-26,
26,
-14,
-28,
-18,
-21,
-68,
9,
-42,
-65,
-9,
-17,
-30,
24,
35,
19,
44,
2,
-19,
-9,
9,
-26,
-35,
53,
13,
-24,
-12,
4,
3,
-9,
5,
-3,
29,
7,
-13,
-7,
-1,
-12,
50,
28,
64,
-26,
-16,
41,
-3,
1,
-15,
3,
36,
10,
-2,
5,
33,
6,
-47,
-8,
-37,
-23,
-41,
37,
11,
3,
27,
-23,
-12,
-61,
6,
-40,
-41,
0,
-25,
-36,
0,
0,
-4,
-28,
-17,
-9,
-42,
-39,
3,
-2,
11,
24,
-1,
-26,
-51,
9,
0,
25,
-65,
-14,
-1,
23,
-42,
16,
-16,
-48,
0,
50,
-53,
-4,
20,
-46,
12,
10,
23,
6,
13,
58,
-29,
-17,
11,
-12,
-40,
-15,
-12,
11,
-3,
2,
-48,
14,
25,
-9,
16,
8,
16,
7,
19,
14,
-52,
-14,
-27,
1,
11,
3,
41,
2,
-33,
15,
-18,
-3,
-49,
23,
-17,
32,
-37,
-9,
22,
16,
2,
54,
-80,
30,
7,
35,
21,
24,
0,
23,
66,
-9,
35,
-41,
-28,
-38,
14,
-35,
-30,
-5,
-7,
29,
-57,
13,
-48,
4,
27,
26,
5,
46,
-20,
7,
-5,
-11,
0,
-20,
-51,
-45,
-2,
37,
7,
-24,
-15,
-13,
3,
-32,
-34,
20,
7,
-22,
-12,
16,
-24,
21,
36,
22,
-9,
1,
-40,
-33,
-39,
-24,
32,
11,
33,
23,
-57,
-14,
-6,
-2,
-71,
-7,
-24,
-60,
-12,
12,
44,
-11,
-54,
9,
17,
40,
47,
21,
38,
32,
-35,
-55,
30,
-40,
-61,
-13,
-47,
11,
-1,
-3,
-5,
23,
-36,
-30,
14,
-11,
54,
24,
26,
35,
-10,
-27,
20,
24,
-69,
-44,
59,
-30,
-17,
36,
32,
-9,
10,
6,
27,
-47,
11,
31,
18,
-18,
1,
-54,
-29,
-47,
21,
47,
63,
-10,
-9,
6,
-24,
41,
-13,
13,
-1,
31,
-27,
8,
-9,
10,
-1,
-40,
55,
44,
71,
-69,
45,
28,
-21,
15,
29,
39,
39,
-16,
22,
-65,
33,
-42,
16,
28,
-39,
-55,
0,
0,
25,
24,
17,
12,
-16,
2,
-18,
40,
-56,
1,
23,
-1,
30,
-7,
-35,
9,
-42,
-7,
17,
-11,
-23,
9,
-32,
-20,
-40,
-25,
-73,
22,
-23,
42,
-9,
-15,
-56,
-24,
-32,
19,
51,
-3,
48,
-44,
32,
-19,
-2,
32,
-13,
10,
-60,
-31,
15,
-20,
-19,
26,
28,
16,
-22,
-24,
-18,
-56,
16,
-24,
15,
60,
11,
-1,
47,
-18,
-35,
32,
0,
0,
22,
-6,
-1,
17,
14,
43,
14,
-21,
19,
-7,
-26,
13,
-34,
27,
-8,
6,
-4,
0,
78,
-11,
-27,
-103,
33,
59,
-5,
15,
-19,
-54,
15,
-25,
96,
36,
-11,
-23,
-8,
-12,
7,
-50,
-33,
-5,
-15,
22,
8,
10,
-20,
59,
69,
35,
-55,
-24,
-2,
27,
32,
-40,
-15,
-9,
28,
-79,
-14,
-5,
0,
24,
43
] |
Wade, O. J.
This is an action instituted by the respondent, as executor of the estate of Thomas B. War-field, deceased, to recover rents from the appellant for the use and occupation of the real estate of the deceased. The appellant in his answer, after denying that he is indebted to the respondent for the use and occupation of the premises described in the complaint in any sum whatever, sets up a counterclaim, and alleges that the estate of Warfield is indebted to him in the sum of $949.50, for work, labor and services performed for the respondent as such executor at his special instance and request, as clerk and salesman, and in taking charge of a certain stock of hardware, stoves and tinware for the period of seventeen months and ten days, and for certain repairs on the roof of the premises described in the complaint.
Thereupon, the new matter alleged by way of counterclaim was stricken out on motion of respondent, and this action of the court is assigned as error.
The motion was, in effect, a demurrer to the counterclaim, for the reason that the same did not state facts sufficient to constitute a cause of action against the respondent, and like a demurrer, when overruled or sustained, will be deemed excepted to without a formal bill of exceptions, and the questions presented come properly before the court on appeal from the judgment. The estate of a deceased person is within the jurisdiction and under the control of the probate court. Executors and administrators are appointed by, and render their accounts to, that court, and the whole subject-matter of estates, their settlement and distribution, comes within its jurisdiction and under its scrutiny. Claims against the estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated expenses of administration. Claims against an estate must be presented to. the administrator or executor for allowance; the expenses’ of administration are subject to objection and exception by those interested in the estate, and are finally passed upon by the probate judge when the administrator or executor renders his accounts. Our statute provides that every executor or administrator, immediately after his appointment, shall give notice to the creditors of the deceased, requiring them to present their claims, and that every claim presented for allowance must be supported by the oath of the claimant. Secs. 147, 151. If the claim is rejected, the holder thereof must bring suit thereon within three months, in the proper court, against the executor or administrator, otherwise the claim is barred. Sec. 155. Section 15Y provides as follows: “No holder of any claim against an estate shall maintain an action thereon, unless the claim is first presented to the executor or administrator. ”
Under similar statutes, it has been held a condition precedent to the right to maintain an action on a claim against an estate, that the same be first presented to the administrator for allowance or rejection. In Eustace v. Johns, 38 Cal. 23, the court says: “We are clearly of opinion that, under statutes of this state, no action can be maintained upon a simple money demand or claim against an estate, whether such demand or claim be based upon simple or special contract, or any other legitimate basis for a claim or demand payable out of the general assets, until the same has been duly presented to the administrator for allowance, and by him disallowed or retained for more than ten days without indorsement of his action thereon.”
The claim of the appellant for services as salesman in taking charge of the stock of hardware and goods mentioned, was never presented to the executor for allowance or rejection, and for that reason he could not have commenced and maintained an action thereon, or upheld the same as a counterclaim to the respondent’s action. For another reason, the matter alleged as a counterclaim must fail. It does not constitute a claim against the estate, within the meaning of the sections of the statute above referred to. It did not exist, as a claim, at the date of the death of the deceased, nor did it grow out of any contract, or act, or omission of his during his lifetime. If the executor had the right to employ a clerk and salesman to take charge of said stock of goods, the pay and compensation for such service belongs to the expenses of administration, and the amount paid thei’efor properly goes into the accounts of the exeeutoi', to be passed upon by the probate judge. In so passing upon said account, the probate judge would inquire into the authority of the executor in contracting for such service, and whether, under the circumstances, the same was rendered in the interest of the estate.
The case of Gurnee v. Maloney, 38 Cal. 85, was an action to recover counsel fees and moneys against an estate for services and moneys expended for the benefit of the estate, at the request of the administrator. The defendant demurred to the complaint, upon the ground that the district court had no jurisdiction, and that the complaint did not state facts sufficient to constitute a cause of action against the defendant. In deciding the case,' Sawyer, C. J., says: “ Conceding the liability of the estate upon such contracts as are set forth in the complaint, we do not think they constitute claims against the estate, within the meaning of sections 128 to 140, inclusive, of the probate act. The claims therein referred to are such as accrued against the intestate in his life-time, or resulted directly from contracts made, or acts performed, or wrongfully omitted to be performed, during his life-time. The charge now in question, if necessary and proper to preserve the estate, comes under the head of expenses of administration. The whole estate is in the custody and under the control of the probate court. It has jurisdiction of the whole subject-matter, and it is its exclusive province, subject to appeal to this court, to determine what items of expenditure incurred during the administration, under its own supervision, are proper charges against the estate.” The judge then quotes with approval the following from the case of Deck's Estate v. Gherke, 6 Cal. 669, where, after speaking of the effect on the allowance of claims against the estate, it is said: “This rule applies only to such claims as were debts against the deceased, and not to the expenses incurred or disbursements made by the administrator in his management of the estate, which latter claims are conclusive only after having been allowed by the probate court, upon settlement of the account, after notice to the parties interested.”
The heirs and creditors, all the persons interested in the estate, had the right to be heard upon the propriety of the claim of appellant for his services as clerk and salesman. The place for such hearing is in the probate court, after the executor has rendered his account of expenses and disbursements, and upon notice thereof to the parties interested. Such parties could not be heard in this action. If the district court could render judgments on such claims, they might never be heard at all, and the probate court, whose peculiar province it is to hear and determine all matters concerning the expenses and disbursements attending the administration of an estate, and wherein the heirs, ■ legatees and creditors may be heard as to the propriety of such expenses and disbursements, might be robbed of the jurisdiction conferred by the statute. The district court has not original jurisdiction to hear and determine whether the items of the expenses of administration, such as that mentioned in the counterclaim of appellant, were properly incurred or not. Such matters belong to the probate court, in which the parties interested may be heard before their lights and interests are adjudicated and determined.
Judgment affirmed.
|
[
-30,
-30,
-21,
-69,
44,
-44,
34,
-28,
54,
13,
14,
-24,
28,
13,
-17,
37,
-14,
-50,
-20,
-53,
35,
-23,
24,
-34,
1,
-7,
-14,
-12,
-6,
-30,
-5,
-35,
-75,
-3,
5,
16,
16,
-120,
-10,
-9,
7,
-2,
47,
-23,
-8,
54,
-2,
-11,
40,
-12,
-18,
11,
33,
-1,
-21,
-27,
-10,
-18,
39,
-30,
45,
-45,
0,
-47,
-32,
24,
40,
-15,
-6,
26,
20,
-19,
53,
61,
12,
1,
-26,
-27,
21,
7,
41,
-9,
9,
-27,
-45,
-26,
28,
19,
-11,
25,
-7,
44,
45,
2,
-66,
-18,
19,
28,
7,
22,
24,
6,
-14,
39,
-16,
22,
-5,
-15,
-3,
-15,
-5,
25,
38,
41,
0,
24,
68,
-45,
-60,
-5,
61,
-1,
31,
-44,
-20,
39,
8,
51,
-9,
40,
34,
43,
1,
43,
-11,
-27,
-20,
-33,
-1,
-26,
29,
-76,
-29,
-47,
39,
36,
30,
20,
-24,
-43,
-49,
60,
-29,
4,
89,
18,
22,
44,
3,
-25,
88,
-53,
-33,
-29,
-29,
47,
-21,
36,
7,
22,
30,
8,
-35,
-10,
-28,
5,
-5,
38,
0,
1,
11,
1,
11,
-12,
0,
-37,
27,
-50,
16,
-21,
45,
-27,
31,
22,
-4,
0,
43,
27,
5,
-7,
-28,
-47,
27,
-35,
22,
18,
5,
-33,
-22,
2,
39,
-18,
-21,
16,
-45,
-24,
39,
-2,
-23,
25,
-1,
2,
-13,
18,
14,
-25,
12,
-54,
-17,
5,
-30,
-62,
-3,
55,
-9,
-79,
35,
7,
-32,
47,
-24,
26,
-33,
28,
-16,
-22,
0,
29,
1,
15,
-17,
38,
-3,
14,
15,
17,
-53,
19,
-11,
-58,
-30,
18,
-53,
11,
-23,
-22,
7,
-13,
33,
-5,
-24,
21,
19,
12,
2,
-45,
-8,
15,
4,
-31,
-53,
-7,
-8,
34,
0,
38,
6,
-26,
1,
-2,
-68,
-14,
20,
-32,
4,
36,
-23,
-5,
41,
-14,
-50,
13,
53,
0,
-18,
51,
13,
-6,
-14,
-22,
-29,
61,
11,
14,
67,
67,
35,
-16,
70,
11,
60,
1,
-26,
26,
-32,
-28,
3,
-7,
69,
32,
-11,
-17,
5,
-7,
-56,
-9,
28,
-40,
-42,
31,
48,
57,
39,
0,
26,
4,
23,
-29,
29,
31,
-45,
-8,
-24,
-2,
-7,
41,
6,
0,
14,
107,
56,
31,
-15,
-43,
-11,
-11,
-19,
18,
50,
-17,
51,
36,
-76,
-30,
41,
-1,
-48,
-4,
45,
1,
-7,
-13,
-34,
0,
69,
43,
16,
-30,
5,
68,
-45,
69,
23,
5,
-36,
19,
-31,
-30,
-63,
25,
12,
36,
-50,
0,
2,
-28,
12,
-13,
-56,
18,
-34,
-39,
6,
-23,
3,
29,
8,
3,
57,
42,
77,
-20,
-3,
33,
36,
-49,
-25,
17,
-71,
-18,
-21,
26,
-47,
11,
46,
5,
-9,
-55,
-30,
69,
24,
17,
41,
10,
-44,
35,
-45,
12,
42,
49,
-5,
50,
7,
8,
28,
-24,
88,
43,
20,
35,
22,
9,
28,
18,
-15,
42,
48,
33,
-4,
34,
-79,
43,
-44,
-38,
2,
6,
-83,
-15,
18,
5,
-37,
11,
-18,
41,
0,
41,
33,
-15,
-17,
-57,
-21,
-61,
-24,
25,
-23,
-37,
-61,
-36,
-8,
-30,
-20,
6,
-9,
-6,
-28,
-32,
-20,
-23,
-18,
-39,
0,
-6,
-29,
17,
59,
48,
16,
-28,
19,
-19,
34,
13,
-65,
-40,
-1,
44,
16,
81,
37,
-20,
-13,
-47,
15,
-59,
-13,
-70,
32,
-3,
-58,
36,
8,
69,
39,
89,
-30,
59,
40,
11,
-1,
12,
-22,
-40,
5,
22,
5,
27,
22,
-63,
45,
3,
40,
3,
-53,
-28,
40,
-66,
20,
-6,
12,
34,
-64,
-8,
38,
-59,
-11,
-1,
-7,
-81,
-12,
-97,
-18,
0,
46,
-28,
-15,
58,
4,
40,
62,
12,
1,
19,
-45,
-39,
50,
-4,
-69,
-42,
-8,
-10,
-42,
-77,
8,
-11,
-37,
28,
-37,
-9,
-7,
-13,
34,
41,
-29,
-30,
10,
23,
-12,
-18,
28,
60,
26,
77,
23,
70,
27,
22,
0,
-24,
-45,
31,
41,
-47,
2,
58,
-20,
-32,
-18,
-17,
-12,
-99,
-14,
-3,
-2,
-28,
-47,
-10,
52,
-25,
55,
-34,
-14,
24,
-44,
25,
22,
-37,
52,
-39,
36,
-31,
25,
-97,
-11,
30,
38,
5,
-21,
-41,
-38,
-59,
35,
31,
-39,
32,
-43,
58,
-68,
-10,
-12,
23,
13,
-14,
19,
86,
21,
-29,
67,
-32,
-68,
-24,
19,
-109,
-16,
-22,
46,
84,
37,
-60,
36,
0,
-4,
-49,
-5,
86,
-13,
17,
25,
16,
-22,
-52,
-24,
-10,
-3,
-72,
-1,
9,
27,
-40,
25,
29,
11,
-56,
-16,
-64,
-9,
-3,
72,
4,
-56,
-64,
15,
28,
-24,
13,
-41,
-13,
-60,
-83,
-38,
16,
24,
-7,
49,
-12,
27,
-36,
12,
32,
15,
39,
6,
-8,
1,
38,
16,
-37,
-24,
-8,
-9,
25,
-4,
42,
18,
43,
0,
-2,
-22,
-11,
-14,
22,
32,
24,
12,
4,
28,
36,
-18,
-31,
14,
-4,
49,
8,
-26,
-6,
5,
-8,
-5,
-76,
21,
76,
-94,
-23,
38,
-48,
-82,
-12,
23,
46,
55,
-74,
69,
-29,
18,
109,
28,
-42,
21,
24,
-21,
22,
-29,
-35,
3,
-30,
-41,
-32,
13,
46,
-29,
0,
-17,
0,
3,
61,
-23,
51,
-20,
2,
-29,
44,
-7,
-80,
14,
17,
-5,
-3,
20,
49,
-58,
-68,
7,
30,
-40,
35,
-13,
5,
-1,
-20,
-37,
-8,
12,
-50,
53,
38,
12,
-12,
22,
-38,
-12,
-33,
18,
-10,
41,
-7,
-18,
-30,
-22,
-12,
11,
29,
45,
24,
-40,
13,
14,
-36,
21,
25,
17,
26,
-40,
55,
-10,
17,
-15,
57,
63,
-40,
-35,
31,
40,
36,
-7,
6,
-32,
1,
24,
-48,
15,
0,
-16,
21,
27,
-21,
-71,
-32,
-9,
-22,
-16,
1,
10,
-2,
-66,
-42,
-18,
-9,
46,
0,
-64,
30,
-10,
-58,
-63,
4,
24,
-56,
28,
-28,
-29,
42,
5,
-31,
27,
61,
31,
-12,
21,
-11,
-14,
-9,
41,
10,
7,
6,
13,
55,
16,
-59,
23,
23,
-23,
25,
36,
35,
-31,
46,
1,
-50,
-22,
78,
-22,
1,
9,
8,
56,
14,
28,
43,
5,
-15,
-110,
-81,
15,
-29,
0,
-65,
30,
9,
10,
-7,
-38,
-24,
-47,
32,
-25,
8,
25,
-61,
-12,
47,
51,
41,
11,
18,
-28,
1,
28,
60,
-21,
8,
-39,
19,
-15,
8,
-20,
-22,
54,
51,
-30,
-70,
-13,
-9,
-33,
1,
-95,
8,
-17,
12,
-19,
16,
-2,
-89,
-43,
28
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 William M. Windsor (Windsor) appeals from the order of the Montana Fourth Judicial District Court, Missoula County, extending the Temporary Order of Protection (TOP) against Windsor granted to Sean Boushie (Boushie); denying several of Windsor’s motions and discovery requests; and enjoining Windsor from filing further proceedings with the court without leave. We affirm, but strike one condition of the District Court’s order.
ISSUES
¶2 Windsor’s appeal raises at least six issues with many subparts, most of which are without merit. Rule 12(l)(b) of the Montana Rules of Appellate Procedure provides: “Parties are encouraged to limit the number of issues to 4 or fewer.” From the issues Windsor has presented for our review, we have distilled the relevant issues to two:
2. Did the District Court abuse its discretion in affirming the Municipal Court TOP; denying Windsor’s numerous motions; and remanding to the Municipal Court for further proceedings ?
2. Did the District Court err by permanently enjoining Windsor from filing any new pleadings without prior District Court approval; and requiring him to post a $50,000 bond if such a proceeding is filed against a judge or court employee ?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The current controversy apparently arose from “cyber-blog” exchanges between Windsor and Boushie. Boushie lives in Montana; Windsor fives in Georgia, South Dakota, or Texas. The two have never met in person. Boushie asserts that his only contact with Windsor was when Boushie sent a cease and desist letter to Windsor’s ex-wife regarding Windsor’s harassment of Boushie on the website lawlessamerica.com. Windsor ran the website but his ex-wife was the legally registered owner.
¶4 Following the cyber-blog exchanges and cease and desist letter, in 2013, Windsor drove from Georgia to Montana, where he sought a TOP against Boushie. In fact, the District Court found that he filed four separate petitions for protective orders against Boushie; and filed approximately six police reports about Boushie over nineteen months. All of the petitions for protective orders were denied and no charges have been pressed related to the police reports. Windsor also repeatedly drove past Boushie’s residence; showed up at Boushie’s workplace at the University of Montana, where he videotaped Boushie’s vehicle for approximately ninety minutes; and created a website at SeanBoushie.com, where he posted false and defamatory information about Boushie and his wife. Windsor owns several other similar websites, for instance, AllieOverstreet.com and ClaudineDombrowski.com. Previously, the U.S. District Court for the Northern District of Georgia determined Windsor was a vexatious litigant and permanently enjoined him from filing any complaint or initiating any proceeding in any court or agency of the United States without first obtaining leave of the federal district court in the district in which the action was filed.
¶5 As a result of Windsor’s behavior, Boushie requested and was granted a TOP against Windsor, in Municipal Court. The Municipal Court’s order barred Windsor from threatening to harm or harming Boushie’s wife; harassing or otherwise contacting Boushie’s wife or University of Montana staff; coming within 1,500 feet of Boushie’s residence, Boushie’s wife and the University of Montana; and possessing a certain firearm. It also required Windsor to release SeanBoushie.com to Boushie and to refrain from posting Boushie’s name online.
¶6 A hearing on the TOP was scheduled for September 9, 2013. Boushie filed a request to affirm and extend the order of protection in the District Court on September 17,2013. Windsor moved to vacate the TOP. He also moved for discovery regarding a number of different things, including Boushie’s mental health and online activities. He sought a jury trial, and substitution of the judge.
¶7 The District Court denied Windsor’s requests and, ultimately, affirmed the Municipal Court’s decision regarding the TOP. In its order, the District Court also determined that it was necessary to issue an injunction because of Windsor’s “extraordinary abuse of the state judicial system by repeatedly filing frivolous, malicious and vexatious lawsuits ....” Accordingly, the court enjoined Windsor from filing any complaint or initiating any proceedings without leave from the district court judge. The court’s order also provided that if the lawsuit or proceeding named judges or court employees, Windsor had to tender a $50,000 bond sufficient to satisfy an award of sanctions.
STANDARD OF REVIEW
¶8 This Court will not overturn a district court’s decision to continue, amend, or make permanent an order of protection absent an abuse of discretion. Lockhead v. Lockhead, 2013 MT 368, ¶ 12, 373 Mont. 120, 314 P.3d 915. We also review a pre-filing order entered against a vexatious litigant for abuse of discretion. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056 (9th Cir. 2007). The question under this standard is not whether we would have reached the same decision as the trial judge, but whether the trial judge acted arbitrarily without conscientious judgment or exceeded the bounds of reason. Lockhead, ¶ 12.
DISCUSSION
¶9 1. Did the District Court abuse its discretion in affirming the Municipal Court TOP; denying Windsor’s numerous motions; and remanding to the Municipal Court for further proceedings?
¶10 The purpose of Title 40, chapter 15, MCA, is “ ‘to promote the safety and protection of all victims of partner and family member assault, victims of sexual assault, and victims of stalking.’ ” Lear v. Jamrogowicz, 2013 MT 147, ¶ 22, 370 Mont. 320, 303 P.3d 790. Section 40-15-102, MCA, provides criteria for eligibility for an order of protection — victims meeting these may seek relief from their perpetrators under the statute. “As the statutes taken together establish, the object of a TOP proceeding is the swift and efficient protection of one who is being harassed and intimidated by another.” Lear, ¶ 26. District courts, justices’ courts, municipal courts and city courts all have jurisdiction to issue TOPs. Section 40-15-301(1), MCA. If the court finds that the individual petitioning for a TOP is in danger of harm if the court does not act immediately, the court must issue a TOP that grants appropriate relief. Section 40-15-201(2), MCA. Such relief includes:
(a) prohibiting the respondent from threatening to commit or committing acts of violence against the petitioner and any designated family member;
(b) prohibiting the respondent from harassing, annoying, disturbing the peace of, telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner, any named family member, any other victim of this offense, or a witness to the offense;
(d) directing the respondent to stay 1,500 feet or other appropriate distance away from the petitioner, the petitioner’s residence, the school or place of employment of the petitioner, or any specified place frequented by the petitioner and by any other designated family or household member;
(j) directing other relief considered necessary to provide for the safety and welfare of the petitioner or other designated family member.
Section40-15-201(2), MCA. Pursuant to § 40-15-204(5), MCA, a district court has the authority to continue a TOP for “an appropriate time period,” make the order permanent, or terminate the order upon the petitioner’s request that the order be dismissed. See Albrecht v. Albrecht, 2011 MT 316, ¶ 13, 363 Mont. 117, 266 P.3d 1275. A district court must consider the record of the proceedings in assessing whether to grant or deny a respondent’s motion to vacate a temporary order of protection. Lockhead, ¶ 18.
¶11 Here, following the hearing on the TOP, the District Court determined that Windsor was stalking Boushie and Boushie’s wife, and Boushie thereby satisfied the criteria for eligibility for a TOP pursuant to § 40-15-102(2), MCA. The court concluded that the TOP should remain in effect. The court explained:
Windsor has purposely or knowingly caused Boushie and Boushie’s wife substantial emotional distress by repeatedly driving by the Boushie home and showing up at Boushie’s work place. Windsor has repeatedly harassed, threatened, and intimidated Boushie and his wife by setting up a website at SeanBoushie.com and posting defamatory and false information about Boushie and his wife. Windsor drove from Georgia to Montana to follow Boushie and his wife around with a video camera. Boushie and his wife are eligible for an order of protection because, despite a cease and desist letter, Windsor continues to follow, threaten, harass, and intimidate both Boushie and his wife causing them both substantial emotional distress. Contrary to Windsor’s assertions Windsor’s activities Eire not protected as a member of the press.... Windsor has no television show, nor has he made any sort of documentary film. Windsor films sxdppets of stalking his various victims and posts them to YouTube calling them news. ... This is stalking behavior Eind any member of the press engaged in such would be held accountable under the criminal statutes of Montana.
¶12 In light of the record before the District Court, we cannot say the District Court’s decision to affirm the TOP was an abuse of discretion. Although Windsor claims the District Court ignored his sworn testimony in affirming the TOP, “[i]t is within the province of the finder of fact to weigh the evidence presented and determine the credibility of witnesses; in the event of conflicting evidence on factual issues, the trier of fact determines which will prevail.” State v. Gladue, 1999 MT 1, ¶ 40, 293 Mont. 1, 972 P.2d 827. In any case, it is difficult to see how — as Windsor asserts on appeal — Boushie could be stalking Windsor, when it was Windsor who drove across the country to follow Boushie around with a video camera and seek a TOP against Boushie. Considering Windsor’s activities, we conclude that the District Court’s decision to affirm the TOP was not arbitrary and did not otherwise exceed the bounds of reason.
¶ 13 Windsor claims the District Court erred by denying his request for a jury trial. The District Court’s order explained that “an appeal of a TOP is not the type of case in which a jury trial is authorized.” The District Court is correct. Requiring a jury trial at the request of the respondent where a TOP is requested would defeat the purpose of a TOP — to provide swift and efficient protection of the victim.
¶14 Windsor also complains about several of the TOP conditions. Section 40-15-201, MCA, provides a process by which victims of offenses, including stalking, may obtain relief from the perpetrators. All of the conditions Windsor challenges are permitted by the statute. The condition barring Windsor from harming or threatening to harm Boushie’s wife is authorized by § 40-15-201(2)(a), MCA. The condition barring Windsor from harassing or otherwise contacting Boushie’s wife or University of Montana staffis authorized by § 40-15-20l(2)(b), MCA. The condition preventing Windsor from coming within 1500 feet of Boushie’s residence, wife or place of employment is permitted by § 40-15-201(2)(d), MCA. The condition barring Windsor from possessing a certain firearm is within what is contemplated by § 40-15-201(2)(j), MCA. Finally, the condition requiring Windsor to transfer SeanBoushie.com into Boushie’s name and to refrain from posting about Boushie on the site is also permissible within § 40-15-201(2)(j), MCA, under the circumstances. The District Court did not abuse its discretion in affirming the TOP.
¶15 Windsor further asserts that the District Court erred by denying him discovery. In denying Windsor’s discovery requests, the District Court cited to our decision in Lear. There, we explained that broad discovery, including pursuit of personal information about one petitioning for a TOP, is “antithetical to the purpose of a TOP.” Lear, ¶ 25. The District Court quoted the following language from our decision there:
The statutory scheme contemplates that the petition will succeed if the petitioner establishes good cause for the entry of an order, and will fail if she does not. The provision of discovery rights to the respondent in this situation does nothing to protect a victim from harm; rather it can exacerbate an already untenable situation. For these reasons, we conclude that unless extraordinary circumstances justify it, courts should not compel a petitioner ... to be subjected to discovery at the hands of the respondent.
(quoting Lear, ¶ 26). Applying this decision, the District Court concluded that the type of discovery Windsor requested was not permissible. We agree, and also note that Windsor has failed to show any extraordinary circumstances justifying the invasive “discovery” that he requests.
¶ 16 Finally, Windsor alleges that the District Court wrongfully denied consideration of his Motion for Substitution of Judge, and “falsely claimed” that this appeal was not a trial de novo. The record reveals, however, that the District Court considered Windsor’s Motion for Substitution of Judge and observed that because Windsor’s appeal of the TOP did not constitute a trial de novo, no right to substitute a judge under § 3-1-804, MCA, arose. Windsor has not pointed out any legal error in the District Court’s reasoning and we decline to address his contention further.
¶17 The District Court did not abuse its discretion in affirming the TOP and remanding to the Municipal Court.
¶18 2. Did the District Court err by permanently enjoining Windsor from filing any new pleadings without prior District Court approval; and requiring him to post a fifty thousand dollar bond if such a proceeding is filed against a judge or court employee ?
¶ 19 Montana district courts possess inherent power to sanction willful or reckless conduct, especially when combined with frivolousness, harassment, or improper purpose. See Motta v. Granite County Comm’rs, 2013 MT 172, ¶¶ 17, 22, 370 Mont. 469, 304 P.3d 720. We have observed that although Article II, § 16, of the Montana Constitution guarantees every person access to the courts of the state, that right is not an absolute right and may be reasonably restricted in light of a “legitimate state interest.” Motta, ¶ 18. To review pre-filing orders entered against vexatious litigants, we adopted the criteria used by the Ninth Circuit Court of Appeals: Whether the litigant was given notice and a chance to be heard before the order was entered; whether the trial court has compiled an adequate record for review; whether the trial court has made substantive findings about the frivolous or harassing nature of the plaintiffs litigation; and whether the vexatious litigant order is narrowly tailored to closely fit the specific vice encountered. Motta, ¶ 20 (citing Molski, 500 F.3d at 1057). We further endorsed the Ninth Circuit’s five-factor test to examine whether a pre-filing order is justified:
(1) the litigant’s history of litigation and, in particular, whether it has entailed vexatious, harassing, or duplicative lawsuits;
(2) the litigant’s motive in pursuing the litigation; e.g., whether the litigant has an objective good faith expectation of prevailing;
(3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and other parties.
Motta, ¶ 20 (citing Molski, 500 F.3d at 1058). We affirmed the District Court’s entry of a pre-filing order to address problems with a vexatious litigant where the court’s order was supported by detailed findings that addressed the Ninth Circuit factors. Motta, ¶¶ 22-23.
¶20 Here, following a hearing, and aided by a record that Windsor himself points out is extensive, the District Court concluded Windsor deserved to be sanctioned as a vexatious litigant. In reaching that determination, the court noted that “Windsor has a history of filing frivolous actions in courts all over the country and engaging in precisely the type of stalking behavior alleged by Boushie in his original Sworn Petition.” The court recognized that Windsor had previously been deemed a vexatious litigant by the U.S. District Court for the Northern District of Georgia and that Windsor ran several websites aimed at harassing and threatening particular individuals, including Boushie. The court further discussed the burden to clerical and judicial resources caused by Windsor’s “voluminous frivolous filings” — the extent and nature of which are easily confirmed from review of the record. Based on these determinations, the court concluded it was necessary to enjoin Windsor from initiating any further proceedings without seeking leave of the court; and to require Windsor to post a $50,000 bond sufficient to satisfy an award of sanctions if the proceeding named judges or court employees, since such an action would be presumably frivolous.
¶21 We conclude that the District Court adequately weighed the Motta factors in sanctioning Windsor as a vexatious litigant through imposing a pre-filing order. The court did not abuse its discretion in requiring Windsor to seek court approval before filing future lawsuits or administrative proceedings. Indeed, such action was tailored to address Windsor’s demonstrated proclivity for filing voluminous lawsuits of questionable merit. We are not persuaded, however, that the condition of the court’s order requiring Windsor to post a $50,000 bond sufficient to cover sanctions in the event that Windsor files an action or proceeding against a judge or court employee is sufficiently closely tailored to fit the specific vice encountered. See Motta, ¶ 20. The District Court’s order made no reference to any instance in which Windsor has brought a lawsuit or other action against any court employee or judge. A blanket sanction for filing lawsuits or other proceedings aimed at judges and court employees without any evidence that Windsor has engaged in such conduct in the past is an abuse of discretion. We conclude that the condition requiring Windsor to post a $50,000 bond if an action he files names judges or court employees must be stricken from the court’s order. Because we uphold the court’s sanction preventing Windsor from filing actions without prior court approval, we will leave to the approving court’s discretion the determination of whether a bond is required and, if so, in what amount.
CONCLUSION
¶22 The District Court’s order is affirmed, as amended by this Opinion.
JUSTICES BAKER, McKINNON, COTTER and RICE concur.
|
[
11,
1,
-19,
27,
17,
-23,
25,
11,
-40,
50,
-2,
2,
8,
-27,
-24,
-66,
1,
-13,
0,
15,
55,
-13,
-2,
-12,
1,
7,
-23,
-21,
-12,
-18,
6,
-24,
40,
-48,
-44,
1,
47,
25,
-21,
-13,
57,
-29,
12,
-7,
-44,
-18,
-18,
51,
20,
-64,
-7,
40,
-7,
-8,
15,
28,
-10,
14,
-23,
38,
2,
19,
-2,
-31,
24,
-4,
25,
-4,
-24,
-25,
-16,
-8,
-29,
-12,
-17,
-25,
0,
-91,
0,
73,
-21,
1,
-44,
-23,
45,
-44,
8,
25,
-44,
50,
-23,
-46,
-36,
-36,
-10,
-16,
3,
-44,
38,
-42,
-31,
4,
3,
15,
-19,
35,
-27,
7,
15,
29,
11,
23,
-5,
-7,
-15,
-1,
21,
1,
67,
7,
-16,
-13,
15,
-52,
-4,
-63,
49,
1,
6,
-7,
9,
62,
19,
-55,
-8,
-3,
-29,
-9,
-9,
17,
29,
-47,
14,
16,
16,
4,
15,
-14,
-28,
4,
10,
34,
31,
30,
41,
-40,
-7,
-63,
33,
-5,
46,
47,
3,
44,
-4,
-2,
-22,
15,
6,
9,
0,
-4,
-27,
19,
27,
39,
-68,
-18,
10,
-43,
7,
10,
7,
-24,
-58,
13,
32,
-31,
-28,
-35,
-43,
-24,
15,
-37,
61,
-19,
-2,
9,
33,
-24,
23,
11,
25,
46,
-20,
-47,
65,
-51,
25,
-33,
-43,
5,
-16,
-22,
39,
-23,
-6,
-14,
5,
-11,
17,
37,
-24,
15,
-34,
-21,
-33,
9,
3,
3,
20,
-4,
-8,
-15,
24,
-12,
-37,
-24,
40,
-3,
-28,
43,
-39,
-35,
19,
15,
-55,
-28,
-31,
-2,
11,
-6,
55,
-26,
2,
-32,
47,
-20,
-42,
-26,
42,
-33,
18,
35,
11,
-8,
8,
9,
10,
6,
-18,
-2,
-13,
-31,
-39,
33,
7,
-8,
23,
-36,
-6,
2,
3,
12,
25,
8,
-19,
15,
-20,
13,
-6,
-46,
-37,
-8,
-16,
67,
27,
12,
-43,
13,
9,
33,
-20,
49,
-9,
17,
-4,
5,
-14,
-7,
3,
11,
-78,
34,
20,
3,
2,
59,
15,
-28,
6,
-3,
18,
-86,
-16,
-9,
-9,
7,
-19,
-4,
20,
-23,
-46,
23,
30,
-7,
34,
-19,
-43,
-25,
-4,
-19,
27,
-2,
-17,
46,
-5,
33,
-13,
-3,
8,
27,
26,
6,
-45,
-18,
-65,
-1,
-5,
-21,
32,
24,
-58,
-54,
-43,
-8,
-9,
25,
-33,
4,
-65,
-53,
57,
-10,
6,
-6,
-8,
-18,
-22,
95,
-2,
-27,
6,
-16,
55,
-31,
-18,
-31,
9,
-1,
26,
-10,
-22,
60,
-5,
6,
-9,
-28,
34,
36,
25,
53,
28,
27,
-45,
-15,
-18,
19,
-1,
-14,
11,
35,
1,
12,
13,
35,
-47,
0,
2,
58,
-16,
34,
26,
13,
36,
50,
-6,
-12,
15,
52,
34,
-13,
26,
-3,
-67,
17,
-18,
-50,
-39,
-8,
34,
-22,
-12,
-33,
-17,
-61,
14,
-7,
20,
34,
6,
67,
8,
-18,
-18,
12,
27,
62,
12,
22,
19,
-21,
-30,
67,
-5,
-5,
-9,
-2,
-18,
25,
6,
23,
-34,
16,
-5,
37,
-10,
25,
-43,
5,
-17,
11,
28,
40,
22,
32,
-8,
-14,
19,
51,
-29,
59,
-8,
-29,
-2,
38,
-4,
3,
54,
-4,
20,
25,
0,
3,
-1,
-6,
38,
3,
20,
0,
70,
19,
0,
-13,
-81,
23,
42,
21,
24,
7,
11,
30,
53,
8,
-8,
-34,
17,
-76,
-21,
15,
-44,
43,
-18,
11,
54,
24,
33,
-33,
-4,
-3,
2,
-30,
-22,
3,
-8,
-10,
8,
-17,
24,
22,
19,
-11,
11,
6,
17,
30,
11,
17,
-13,
-4,
-9,
11,
12,
43,
7,
-50,
-37,
11,
15,
-26,
-12,
-8,
-12,
-5,
-3,
7,
-6,
-15,
23,
-5,
10,
-4,
-66,
-44,
-40,
-46,
29,
-34,
54,
2,
-24,
6,
-54,
41,
-15,
-35,
-45,
36,
-21,
5,
0,
6,
32,
-44,
7,
-18,
6,
-7,
-31,
-11,
-52,
-6,
9,
28,
14,
17,
-13,
-19,
29,
-26,
21,
-26,
17,
-3,
-27,
-40,
-32,
-16,
2,
-13,
-59,
-26,
7,
25,
33,
1,
-28,
58,
-30,
-10,
50,
51,
-3,
-18,
24,
2,
60,
40,
-3,
-47,
21,
6,
30,
-57,
-23,
2,
12,
3,
14,
0,
7,
0,
-53,
10,
-29,
-29,
-17,
41,
23,
48,
55,
-3,
-1,
-10,
2,
-2,
42,
-41,
13,
41,
-9,
-34,
0,
10,
-37,
52,
-12,
10,
-10,
-18,
11,
15,
17,
-6,
17,
-61,
1,
6,
-62,
-1,
-35,
-21,
36,
-71,
24,
24,
9,
-34,
7,
7,
40,
1,
-3,
55,
23,
3,
-4,
-24,
-14,
-14,
-27,
-24,
-28,
-31,
28,
-65,
-77,
-6,
-13,
47,
32,
32,
32,
34,
-67,
11,
-2,
4,
40,
33,
-28,
-31,
94,
-8,
44,
1,
66,
-34,
-37,
-9,
34,
24,
1,
17,
-45,
37,
65,
15,
-42,
16,
55,
-33,
6,
-12,
0,
-1,
10,
10,
4,
-26,
29,
-51,
-7,
-17,
-9,
-3,
24,
-7,
1,
-56,
19,
22,
-50,
-9,
18,
11,
-16,
12,
-13,
24,
35,
-40,
3,
-32,
0,
-9,
26,
-55,
29,
0,
14,
53,
26,
15,
-29,
10,
15,
30,
-7,
24,
10,
-30,
-7,
-9,
43,
-41,
-42,
7,
-22,
-79,
-23,
-10,
8,
8,
40,
-19,
24,
3,
9,
20,
30,
12,
11,
16,
-30,
14,
-6,
-26,
23,
7,
22,
-15,
-21,
-10,
45,
16,
29,
-21,
31,
-16,
3,
47,
13,
23,
21,
-37,
-27,
-23,
16,
60,
4,
42,
-36,
31,
7,
-14,
73,
3,
20,
28,
-10,
-6,
50,
56,
-29,
-17,
10,
-10,
-75,
-40,
-32,
33,
0,
-5,
-46,
-5,
4,
-34,
-31,
-68,
-14,
-66,
-22,
-26,
-32,
32,
-29,
-25,
-11,
-32,
-19,
-29,
-5,
-8,
52,
22,
21,
42,
47,
0,
-23,
-35,
6,
0,
18,
10,
-17,
58,
-15,
12,
-41,
25,
16,
75,
6,
31,
-65,
-31,
-43,
53,
7,
0,
-24,
-34,
-2,
2,
25,
26,
5,
-24,
-11,
-1,
26,
-44,
31,
89,
-58,
-60,
35,
0,
-39,
48,
19,
50,
24,
-27,
1,
6,
-29,
9,
-45,
13,
-15,
-23,
-66,
25,
-35,
-12,
5,
30,
-16,
-33,
-16,
19,
-47,
5,
22,
-2,
42,
-48,
-16,
5,
-8,
33,
-20,
-2,
18,
-18,
-64,
-22,
18,
-10,
-17,
-42,
-4,
48,
-15,
-5,
-6,
-11,
11,
31,
-14,
-17,
-3,
-17,
6,
-1,
41,
53,
23,
-28,
-29,
17,
-1,
-32,
22,
-10,
26,
24,
-64,
32,
34,
36
] |
JUSTICE McKINNON
delivered the Opinion of the Court.
¶1 D.W. appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, terminating his parental rights to his child M. J.C. The sole issue on appeal is whether the District Court erred in terminating D.W.’s parental rights.
BACKGROUND
¶2 The Department of Public Health and Human Services (the Department) has an extensive history with Mother dating back to 1997. The Department became involved with M.J.C. after blood in M. J.C.’s umbilical cord tested positive for a number of drugs, including methamphetamine and opiates, at the time of her birth. Mother and M. J.C. were released from the hospital, and Mother missed a follow-up pediatric appointment. Upon investigation, the Department discovered that Mother had no stable home and was facing incarceration due to a warrant issued by her probation officer. Mother was subsequently arrested, and M.J.C. was taken into protective custody by the Department on August 30,2011.
¶3 The District Court adjudicated M. J.C. a youth in need of care on November 30, 2011, and granted temporary legal custody (TLC) of M. J.C. to the Department based on physical neglect by Mother, and absence of a father. At the time of the removal, Mother named two men as putative fathers of M.J.C. A court-ordered paternity test determined D.W. to be the father of M. J.C. in February 2012. At this time, D.W. had moved from Billings back to his home state of Illinois, where he resided during the entire pendency of this case. Throughout the proceedings, D.W. and Mother twice stipulated to an extension of TLC.
¶4 The State provided Mother and D.W. with treatment plans, which were approved by the court. D.W.’s treatment plan required him to complete a number of tasks that included in part: providing releases for fingerprints, a background check, and confidential records; writing a detailed personal history; maintaining biweekly contact with the social worker; cooperating with the home study process required by the Interstate Compact for the Placement of Children (ICPC); and discussing a plan for developing a relationship with M.J.C. The permanency plan at that time was to reunify M. J.C. with Mother.
¶5 Mother was initially very successfid with her treatment plan, but ultimately became noncompliant and abandoned M. J.C. D.W. also did not comply with the requirements of the treatment plan. The State then filed a petition to terminate the parental rights of Mother and D.W. on May 24, 2013.
¶6 A hearing on the petition to terminate occurred in August 2013. D.W. appeared by phone from Illinois, and Mother failed to appear. D.W. and social worker Sandy Velin testified. D.W. testified that he did not complete his treatment plan because he believed that M. J.C. would be returned to Mother, due to Mother’s early success in treatment. D.W. also testified that he understood that his parental rights could be terminated if he did not complete his treatment plan. He did not know the name of the social worker, or the birth date of M.J.C. D.W. stated that he had never met M.J.C., and did not provide for her financially. He testified that he appeared by phone at all family group meetings, and cooperated with the ICPC home study. The record is not clear on whether the family group meetings were a part of D.W.’s treatment plan. Neither D.W. nor D.W.’s mother were approved as a placement option by the home study.
¶7 Next, Velin testified that D.W. failed to make even minimal attempts to complete his treatment plan. She stated that D.W. failed to sign any releases, write a detailed personal history including his criminal history, maintain contact with the Department, or establish any sort of relationship with M.J.C. Velin stated she did not believe that D.W.’s conduct or condition was likely to change within a reasonable time, especially in light of two extensions of TLC, and that D.W. had not made any significant progress toward becoming a minimally adequate parent. She concluded that continuing the relationship between D.W. and M.J.C. would likely result in continued abuse or neglect, and termination of D.W.’s parental rights would be in M.J.C.’s best interests.
¶8 Based on the evidence presented, the District Court found that D.W. failed to comply with his treatment plan, that D.W.’s conduct was unlikely to change within a reasonable time, and that a continuation of the parent-child legal relationship between D.W. and M.J.C. would likely result in continued abuse or neglect pursuant to § 41-3-609(l)(f), MCA. The District Court also found that D.W. had abandoned M. J.C. pursuant to § 41-3-609(l)(b), MCA. The court found that the conduct and condition of D.W. renders him unfit, unable, or unwilling to provide M.J.C. with adequate parental care. The District Court also noted that during the two years that M.J.C. had been in foster care, D.W. never met her, and failed to establish a relationship with her. The District Court gave primary consideration to the physical, mental, and emotional conditions and needs of M.J.C., and concluded that her best interests would be served by termination of D.W.’s parental rights pursuant to § 41-3-609(l)(b) and (f), MCA. On appeal, D.W. challenges the District Court’s termination of his parental rights.
STANDARDS OF REVIEW
¶9 We review a district court’s decision to terminate parental rights for abuse of discretion. In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22. An abuse of discretion occurs when a district court acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. In re T.S.B., 2008 MT 23, ¶ 17, 341 Mont. 204, 177 P.3d 429 (citing In re A.S., 2006 MT 281, ¶ 24, 334 Mont. 280, 146 P.3d 778).
¶ 10 “When making a decision to terminate parental rights, the district court must make specific factual findings in accordance with the requirements of § 41-3-609, MCA, and we review these factual findings under the clearly erroneous standard.” In re J.C., ¶ 34 (citing In re L.H., 2007 MT 70, ¶ 13, 336 Mont. 405, 154 P.3d 622). “A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed.” In re J.C., ¶ 34 (citation omitted). We review a district court’s conclusions of law in terminating parental rights to determine if they are correct. In re L.H., ¶ 13.
DISCUSSION
¶11 The criteria for termination of parental rights upon which the District Court based its decision are set forth in two distinct and independent statutory provisions contained within § 41-3-609, MCA. First, the court can order the termination of parental rights upon a finding established by clear and convincing evidence that a child has been abandoned. Section 41-3-609(l)(b), MCA. Abandonment is defined as ‘leaving a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future.” Section 41-3-102(l)(a)(i), MCA. Second, the court can order the termination of parental rights if: (1) a child has been adjudicated a youth in need of care; (2) the parent has been noncompliant with an appropriate treatment plan that has been approved by a court; and (3) the conduct or condition rendering the parent unfit is unlikely to change within a reasonable amount of time. Section 41-3-609(l)(f), MCA. Each ground represents a separate and independent basis for termination. See In re T.H., 2005 MT 237, ¶ 32, 328 Mont. 428, 121 P.3d 541. Additionally, § 41-3-604(1), MCA, states that the best interests of the child are presumed to the served by the termination of parental rights when the child has been in foster care for 15 of the most recent 22 months.
¶12 D.W. argues that the District Court’s finding that he abandoned M. J.C. was clearly erroneous because it was not supported by substantial evidence. However, the record is clear that the District Court correctly concluded that D.W. never intended to care for M. J.C. D.W. had been involved in these proceedings and represented by counsel since M.J.C. was approximately one month old. Yet, although D.W. has lived out-of-state for M.J.C.’s entire fife, he had not attempted or even expressed a plan to visit M.J.C. D.W. has made little to no effort to establish a relationship with M. J.C., and has failed to provide any sort of care, financial or otherwise, to M. J.C. during the two years she was in foster care. D.W.’s noncompliance with his treatment plan also indicates that he had no intention of caring for M.J.C. in the future. Such evidence supports the District Court’s finding that D.W. abandoned M.J.C. See In re Adoption of K.P.M., 2009 MT 31, ¶¶ 25-27, 349 Mont. 170, 201 P.3d 833 (the district court terminated mother’s parental rights on the basis of abandonment when she “failed to manifest any intention she would someday resume physical custody or make permanent legal arrangements for [her child]”); In re T.H., ¶¶ 29-33 (the district court terminated mother’s parental rights on the basis of abandonment when mother stipulated to TLC, left town, had minimal contact with her children, and no contact with her social worker); In re M.J.W., 1998 MT 142, ¶¶ 16-17, 289 Mont. 232, 961 P.2d 105 (father’s failure to parent, with minimal intermittent contact and visitation, made reasonable the belief that father did not intend to resume care of the child in the future). Thus, clear and convincing evidence supports the District Court’s findingthat D.W. abandoned M.J.C. and did not intend to care for her in the future pursuant to § 41-3-102(l)(a)(i), MCA.
¶13 D.W. also argues that the District Court erred in terminating his parental rights because it lacked substantial evidence for termination under the second statutory ground explained by § 41-3-609(l)(f), MCA. D.W. specifically argues that there was not enough evidence to support the District Court’s finding that the conduct or condition rendering D.W. unfit to parent was unlikely to change within a reasonable time. However, D.W.’s argument is unpersuasive, as D.W.’s lack of involvement with M.J.C. is the basis for the limited record. We conclude that many of the same findings supporting abandonment also support a conclusion that D.W. was unlikely to change his conduct toward M. J.C. within a reasonable time. After over two years in foster care and without any relationship with D.W., M. J.C. continued to be a youth in need of care, and dependent, abused, and neglected due to the conduct of Mother and D.W. D.W. failed to complete even minimal requirements of the treatment plan and never met M. J.C. The District Court properly gave primary consideration to the emotional and physical needs of M. J.C. and determined that it was not likely D.W.’s conduct toward M.J.C. would change. We conclude that the District Court’s determination is supported by clear and convincing evidence.
CONCLUSION
¶14 For the foregoing reasons, we affirm.
JUSTICES WHEAT, RICE, COTTER and BAKER concur.
|
[
-11,
-34,
-23,
10,
1,
-35,
-51,
-12,
-4,
-11,
5,
-40,
34,
18,
-35,
-23,
-72,
3,
59,
1,
25,
86,
12,
47,
-2,
27,
1,
1,
-4,
-9,
-17,
-74,
37,
-14,
19,
40,
54,
-9,
58,
27,
35,
-25,
-23,
-13,
-25,
20,
-1,
56,
-9,
26,
10,
-75,
-10,
3,
-15,
11,
44,
49,
-51,
51,
-49,
-2,
-12,
-6,
35,
-16,
-54,
-6,
31,
10,
101,
-14,
-64,
-13,
-10,
18,
-27,
-41,
11,
38,
-41,
12,
-32,
-11,
17,
-24,
-22,
-38,
-12,
81,
59,
13,
-18,
-30,
12,
21,
-31,
-54,
-27,
-7,
-32,
-55,
18,
11,
22,
0,
24,
-18,
18,
35,
47,
-21,
-17,
31,
-7,
10,
33,
61,
10,
21,
-4,
55,
-6,
8,
51,
-13,
-21,
-1,
37,
-14,
-23,
-17,
7,
-16,
16,
-22,
34,
-14,
19,
-10,
-10,
-31,
56,
-15,
-37,
4,
-58,
9,
-45,
-23,
14,
-41,
22,
16,
37,
3,
0,
3,
-38,
20,
15,
-31,
44,
-25,
-51,
-87,
-12,
21,
-9,
0,
20,
2,
-21,
11,
16,
41,
-88,
8,
-20,
-16,
-23,
-4,
32,
8,
-16,
39,
55,
-70,
-21,
-49,
-30,
38,
-4,
-11,
10,
34,
43,
-5,
-26,
5,
-21,
43,
50,
17,
-27,
2,
-8,
-45,
15,
-82,
20,
35,
-7,
-68,
-23,
-25,
18,
-20,
-69,
20,
19,
-24,
52,
-17,
-21,
-20,
5,
51,
-33,
-52,
41,
47,
20,
-7,
-33,
40,
-79,
-10,
-23,
-4,
-8,
11,
9,
-19,
11,
23,
-61,
25,
27,
7,
-59,
33,
12,
20,
7,
-19,
15,
15,
13,
-30,
42,
4,
-4,
-14,
26,
22,
13,
19,
17,
-8,
7,
-20,
0,
-36,
-28,
11,
5,
33,
6,
35,
22,
-6,
33,
25,
13,
-33,
43,
21,
14,
19,
-34,
-27,
25,
-41,
66,
-10,
-1,
-11,
-76,
-1,
-28,
6,
-22,
0,
-42,
35,
9,
60,
4,
-9,
69,
-6,
-10,
9,
-7,
-37,
-72,
-4,
57,
55,
-46,
-40,
-17,
-37,
-11,
-82,
-4,
-50,
0,
-4,
7,
49,
15,
-11,
58,
11,
-21,
23,
17,
0,
-28,
9,
41,
-14,
-52,
-35,
9,
19,
0,
-11,
-2,
29,
13,
-6,
-47,
-49,
-29,
-71,
1,
-64,
-20,
-44,
-63,
-38,
-26,
-29,
82,
-8,
-22,
-49,
8,
-55,
-13,
29,
7,
13,
19,
12,
9,
21,
-18,
-46,
-3,
44,
1,
-12,
-23,
55,
58,
-83,
48,
-30,
3,
30,
-22,
-44,
19,
0,
20,
-54,
0,
42,
-4,
29,
45,
17,
42,
2,
-18,
-39,
-44,
-14,
32,
1,
-13,
43,
-48,
-38,
-57,
-14,
-27,
63,
15,
-70,
-10,
11,
10,
28,
0,
-17,
17,
-16,
-32,
14,
12,
20,
30,
-7,
-7,
-1,
-40,
1,
-48,
26,
1,
7,
5,
-12,
2,
-7,
41,
34,
17,
13,
5,
25,
-45,
-13,
-80,
-47,
-6,
-28,
-2,
-25,
4,
25,
-29,
-5,
-8,
28,
4,
-19,
-5,
7,
19,
72,
-53,
15,
14,
-31,
-2,
-12,
-28,
40,
51,
32,
-45,
-42,
5,
-9,
32,
1,
2,
3,
-12,
-59,
21,
31,
-14,
-27,
43,
-5,
-14,
77,
21,
-69,
29,
18,
-36,
-15,
79,
18,
6,
-7,
-69,
9,
56,
45,
21,
-18,
84,
42,
-11,
33,
-28,
11,
-12,
-80,
-45,
15,
-13,
34,
4,
63,
31,
57,
-36,
-2,
9,
-31,
51,
-6,
5,
-19,
-15,
-25,
89,
22,
0,
-14,
38,
16,
-15,
18,
34,
-23,
0,
36,
6,
0,
19,
3,
33,
-2,
-13,
-9,
-5,
-15,
0,
-19,
9,
65,
-68,
-3,
7,
7,
-27,
-8,
-12,
-27,
65,
16,
-5,
-16,
-37,
-13,
41,
-63,
54,
-28,
4,
-45,
-40,
25,
-16,
-1,
-6,
-34,
-39,
-3,
0,
-12,
33,
-1,
6,
14,
52,
24,
-51,
10,
-5,
11,
-10,
-50,
-35,
7,
-22,
-45,
-21,
28,
-45,
18,
-45,
14,
-31,
-13,
-27,
-22,
15,
15,
33,
-20,
31,
-15,
43,
-40,
-18,
-27,
-17,
-20,
1,
78,
-25,
46,
-25,
26,
12,
-13,
-11,
-28,
0,
8,
-13,
38,
-15,
48,
22,
16,
47,
25,
23,
-21,
27,
52,
5,
-11,
12,
10,
7,
36,
-35,
34,
-25,
65,
8,
0,
62,
-45,
76,
-6,
-58,
-50,
1,
-21,
39,
9,
6,
-12,
0,
-23,
-38,
-33,
60,
13,
42,
-42,
-44,
81,
0,
13,
-32,
66,
-30,
-28,
0,
55,
11,
-3,
-13,
-24,
-13,
27,
-15,
-32,
-51,
-5,
9,
-15,
-10,
-33,
-31,
28,
3,
-4,
36,
0,
29,
-43,
-8,
-24,
-48,
-47,
11,
67,
-25,
37,
-32,
27,
10,
36,
31,
30,
10,
-8,
-34,
23,
35,
-26,
31,
26,
0,
-40,
29,
-34,
-72,
-21,
84,
-24,
-4,
13,
13,
33,
49,
40,
-18,
14,
-22,
-11,
84,
-26,
15,
-23,
13,
28,
-24,
14,
-34,
-31,
-52,
-62,
-19,
34,
15,
0,
10,
-3,
15,
19,
4,
22,
-7,
51,
15,
32,
52,
61,
-53,
-21,
-31,
-34,
49,
25,
37,
-24,
60,
59,
-33,
39,
-3,
38,
6,
33,
32,
37,
0,
-16,
14,
-15,
-40,
-46,
77,
-26,
6,
-22,
0,
13,
-14,
17,
50,
-26,
-27,
53,
-8,
1,
-45,
20,
9,
-13,
23,
15,
-3,
8,
16,
-65,
33,
71,
27,
0,
75,
27,
41,
-30,
-74,
36,
19,
-51,
-17,
32,
-16,
-13,
3,
10,
6,
-26,
24,
53,
-1,
-26,
-1,
-34,
-60,
-63,
9,
-13,
-56,
-25,
18,
8,
-40,
6,
38,
41,
-19,
40,
43,
-26,
11,
-49,
28,
-39,
-49,
6,
4,
-14,
-32,
58,
-40,
23,
-59,
-49,
1,
-5,
-9,
-35,
5,
-26,
53,
22,
9,
-93,
-37,
-2,
30,
53,
-27,
-31,
-54,
-36,
7,
-52,
-2,
2,
50,
66,
-12,
-18,
-28,
-18,
-53,
54,
-28,
17,
-33,
24,
33,
-38,
-12,
38,
21,
-71,
-23,
-20,
4,
18,
-13,
56,
1,
-80,
-35,
-6,
37,
38,
-15,
-6,
13,
34,
5,
11,
4,
9,
-41,
77,
-23,
58,
-47,
-13,
50,
20,
-2,
12,
23,
59,
-44,
-20,
-46,
5,
0,
24,
16,
-26,
-74,
31,
-42,
43,
-44,
-4,
-6,
-38,
-60,
-44,
51,
6,
30,
-3,
33,
23,
0,
-43,
15,
3,
11,
5,
-53,
5,
-7,
0,
-46,
-9,
-57,
1,
67,
53,
4,
-72,
17,
-23,
-23,
55,
-15,
73,
-8,
-58,
48,
18
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Dean O. Crider (Crider) appeals from the judgment of the Montana First Judicial District Court, Lewis and Clark County, following his jury conviction for felony Sexual Intercourse Without Consent in violation of § 45-5-503(1), MCA; misdemeanor Partner or Family Member Assault (PFMA) (second offense) in violation of § 45-5-206( l)(a), MCA; and felony Tampering With Witnesses and Informants in violation of § 45-7-206(l)(a), MCA. We affirm.
ISSUES
¶2 We review the following issues:
1. Did the District Court abuse its discretion when it admitted evidence that Crider had previously assaulted and harassed the victim?
2. Should we exercise plain error review to review the District Court’s instruction to the jury regarding the evidence of the previous bad acts?
3. Did Crider receive ineffective assistance of counsel when his counsel failed to object to the State’s use of the previous bad acts ?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Crider was M.W.’s high school crush. The two had been good friends for fifteen years when they started dating, in 2009. On July 8, 2011, Crider and M.W. took M.W.’s two young children to play at a park. While they were at the park, M.W. received a text message from an ex-boyfriend of hers that read “Where’s my Friday night blow job J LOL.” Crider saw the message. M.W. testified that the message was supposed to be a joke and would not have meant anything if Crider had not seen the message. “[B]ut because he was sitting there, it — it meant that there was going to be some not-so-fun stuff happening.” M.W. routinely allowed Crider to look through her phone because he always wanted to know who was calling her and texting her. After seeing the message, Crider became very angry.
¶4 Crider and M.W. drove to M.W.’s mother’s house and dropped the children off. Then they went to Crider’s house, where they argued for a little while and began drinking shots of Black Velvet whiskey. When they finished the Black Velvet they went to the Libation Station, two blocks from Crider’s house, where they ran into friends he knew. M. W. testified that “while we were there, it was like everything was fine and nothing had happened.” Crider wanted to go to East Helena to continue socializing with the friends they met at the bar. The two bought a liter of Black Velvet to go and began driving to East Helena. They began arguing en route. While M.W. was driving, Crider began burning her with a cigarette and poured three-quarters of the bottle of Black Velvet over her head. At that point, M.W. testified, Crider had reached a point of anger where “he’s just a completely different person... . It’s like something clicks in his head, and it’s just done. There’s no changing his mind or calming him down.” She explained that she had not recognized his propensity for this kind of anger until about four months into the relationship. M.W. stopped the car and said she would try to fix things, because she loved him. The two returned to Crider’s house to try to “work through it.”
¶5 At Crider’s house, M.W. and Crider drank more Black Velvet. At some point M.W. may have told Crider he could “do whatever he wanted” to her. Crider told her that if she was going to act like a whore he was going to treat her like a whore. He made her take offher clothes and give him oral sex. Because Crider was holding M.W.’s hair and controlling the oral sex, she vomited four or five times. M.W. told Crider to stop. He did not stop. After at least half an hour of this, Crider dragged M. W. into the bathroom by her hair and began having anal sex with her. That did not last very long because “it hurt really bad.” M.W. told Crider to stop and he stopped almost immediately. He threw her on the bed and penetrated her vagina with his fist. This, M.W. testified felt “comparable to having a baby.” M.W. told Crider to stop and kicked him offher. He grabbed her by her hair and her arms and threw her, naked, out of the house. M.W.’s clothes and car keys were inside the house. She pounded on the door and begged Crider to let her back in, because she loved him and wanted to make it better. After five minutes, Crider let her back in. He pulled her around by the hair, threw her into walls and made her give him more oral sex. Then he threw her out again. This time she went to his mother’s house, next door, and hid in the porch. His mother drove her home at 5:30 a.m.
¶6 The next morning, M.W. called the police to ask for help recovering her car and her keys. The police explained they could not do that unless a domestic report was filed. She declined to file a report because she did not want Crider to get in trouble. M.W. and Crider texted back and forth for awhile, then talked to one another. Crider was “apologetic and sorry and said he didn’t really remember what happened.” They arranged a time when M.W. could get her possessions, but did not see each other again. M.W. did not tell anyone what had happened until she spoke to a friend a few days later. Her friend reported the incident. M.W. made verbal and written statements about the incident to the domestic violence officer with the sheriffs department.
¶7 Eight days after the incident occurred, and at the domestic violence officer’s recommendation, M.W. went to the emergency room for an examination. The examination revealed bald spots on M.W.’s head where Crider had pulled out her hair. It also revealed cigarette bums, and bruising around both eyes. M.W. had mg burns and bruises on her knees. She had a bruise and a cut on her side that she believed she got when Crider threw her into a heater. She had abrasions around her anus and inside of her rectum.
¶8 Over Crider’s motion in limine, the District Court admitted evidence of previous incidents of violence between M.W. and Crider, narrowly finding it probative of “motive” or “absence of mistake or accident.” The court declined to admit several incidents involving Crider with a previous partner. In July 2010, Crider had been convicted of PFMA to an incident with M.W. In January 2011, M.W. reported to law enforcement that Crider had broken down her door. In May 2011 M.W. called law enforcement to report that Crider was continually calling her and was parked in the area in which she lived. And in June 2011, M.W.’s mother called law enforcement to report that Crider was continually calling her phone. The District Court specifically cautioned in its Order ruling on the motion in limine: “If an issue arises about whether offered evidence falls within the parameters of that allowed by this Order, the parties shall bring the matter to the attention of the Court out of the hearing of the jury.”
¶9 Between the time when charges were pressed against Crider for his conduct in the July 2011 incident and the trial date, M. W. recanted her allegations against Crider. The defense entered into evidence several text messages M.W. sent to Crider saying that she still loved him and asking to see him before she pressed charges. There were also several photographic text messages of a tattoo of Crider’s initials that M.W. got on her chest, after the incident occurred, inside a heart tattoo she had. Because the two were attempting to reconcile and Crider was influencing her, M.W. said, M.W. made a statement to the domestic violence officer with the sheriffs department that the sex had been consensual, but had been overly rough and aggressive. As part of this effort, and at Crider’s urging, M.W. also left several voicemails on Crider’s phone to make it seem as though she was at fault for the incident. She said that she had lied about the rape, that she had had an abortion without telling him, and that she was using methamphetamine. She also met with his lawyers to submit a tape recorded statement that she had lied about the rape.
¶10 Both the State and the defense hired experts to testify at trial regarding the psychology of abuse. The State’s expert testified that domestic violence is a pattern of controlling behaviors that also includes violence at times to reinforce the control over the other person. The expert testified that often violence between partners will escalate over time — that a person who is not violent at the beginning of the relationship will become violent. Often after parties separate following an incident of domestic violence, the victim, believing the abuser is really sorry, will begin to question whether he or she correctly perceived events and whether his or her actions caused the violence. The expert testified that sometimes victims will recant allegations or minimize the abuse that occurred.
¶11 The defense expert testified that behaviors among abuse victims varied too widely to reliably characterize that behavior. The defense expert further testified that recanting or minimizing allegations of domestic violence does not necessarily mean someone is a victim. On cross examination, however, the defense expert conceded that it is not uncommon for victims of abuse to recant allegations, return to their abusers, or he to get abusers out of trouble.
¶12 During its opening statement, the State explained: “And I can tell you that during this trial you’re going to hear from [M.W.], but I’m not 100 percent sure whether what you’re going to hear from her about that night when she sits in that chair — what version of it you’re going to hear.” When M.W. testified, she stated that the July 2011 incident was nonconsensual, giving the original version of events set forth above. She testified that she had recanted her allegations of rape because she still loved Crider and was attempting to reconcile with him. She also testified about the July 2010 PFMA. In that case, Crider had thrown her up against a wall, slammed her head against the hood of his vehicle and thrown her on her face on a gravel road. This occurred because M.W. asked him to leave her house related to his behaviors involving other women, and threatened to call the police when he became physically aggressive. M.W. disobeyed a court order to attend the trial and testify against Crider in that case because she did not want him to go to jail.
¶13 After M.W. testified at trial, the State requested that the District Court instruct the jury as to the other “bad acts.” The court read the following instruction to the jury:
The state has offered evidence that the defendant, at another time, engaged in other crimes, wrongs, or acts. That evidence was not admitted to prove the character of the defendant or show that he acted in conformity therewith. The only purpose of admitting that evidence was to show proof of motive, opportunity, plan, knowledge, identity, or absence of mistake or accident. You may not use that evidence for any other purpose.
The defendant is not being tried for those other crimes, wrongs, or acts. He may not be convicted for any other offense than that charged in this case.
For the jury to convict the defendant of any other offense than that charged in this case may result in unjust double punishment of the defendant.
When the District Court settled jury instructions, the defense confirmed it had no objection to the prior bad acts instruction “as requested by the parties.” When the final instructions were read, the court said it would not read the other prehminary instructions that had already been read, but re-read the one on prior bad acts for emphasis. The State, in its closing statement, used the prior bad acts evidence to imply that M.W. was a victim of domestic violence.
STANDARDS OF REVIEW
¶14 This Court reviews a district court’s ruling regarding the admission of other crimes, wrongs, or acts for an abuse of discretion. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205 P.3d 798. To the extent the court’s ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo. Puccinelli v. Puccinelli, 2012 MT 46, ¶ 12, 364 Mont. 235, 272 P.3d 117.
¶15 We reviewjury instructions to determine whether the instructions as a whole fully and fairly instruct the jury on the applicable law. State v. Ring, 2014 MT 49, ¶ 13, 374 Mont. 109, 321 P.3d 800. District courts are given broad discretion when instructing a jury and reversible error occurs only if the jury instructions prejudicially affect the defendant’s substantial rights. Ring, ¶ 13.
¶16 Claims of ineffective assistance of counsel (IAC) present mixed questions of law and fact that we review de novo. Green, ¶ 14.
DISCUSSION
¶17 2. Did the District Court abuse its discretion when it admitted evidence that Crider had previously assaulted and harassed the victim ?
¶18 Crider argues that the District Court abused its discretion in admitting the evidence of his prior bad acts to prove motive and absence of mistake or accident. The State counters that Crider did not properly preserve this issue for appeal because he never objected to the prior bad acts evidence on the basis that the District Court improperly admitted it to show motive or absence of mistake.
¶19 A motion in limine has “special advantages” and serves an important strategic purpose. State v. Ingraham, 1998 MT 156, ¶ 36, 290 Mont. 18, 966 P.2d 103. We have encouraged the use of motions in limine to preserve objections in cases where “[a] party may not wish to register an objection in the presence of the jury for tactical reasons, yet may wish to preserve the objection on appeal.” Ingraham, ¶ 36. A party raising an objection through a motion in limine “need not continually renew the objection to preserve alleged errors for appeal.” Hulse v. Dept. of Justice, 1998 MT 108, ¶ 46, 289 Mont. 1, 961 P.2d 75.
¶20 To preserve an objection for appeal through use of a motion in limine, the objecting party must make the basis for his objection clear to the district court. Ingraham, ¶ 36. A district court will not be put in error where it was not given an opportunity to correct itself. State v. Weeks, 270 Mont. 63, 85, 891 P.2d 477, 490 (1995). “To preserve a pretrial objection for appeal through a motion in limine, the motion must be ‘sufficiently specific as to the basis for the objection.’ ” State v. Stock, 2011 MT 131, ¶ 45, 361 Mont. 1, 256 P.3d 899 (quoting State v. Vukasin, 2003 MT 230, ¶ 29, 317 Mont. 204, 75 P.3d 1284). The motion in limine must specify the evidence to which the defendant is objecting. See Vukasin, ¶¶ 35-37 (motion in limine was not sufficient to preserve an issue for appeal where it only sought to exclude any “reference, comment, allusion or statement made to any crime, wrong or act pursuant to M.R. Evid. Rule 404(b)” and did not specify the basis for the objection) (quotation omitted).
¶21 In State v. Dist. Court of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 49, 358 Mont. 325, 246 P.3d 415, we set forth the process governing admission of Rule 404(b) evidence. First, the prosecution discloses to the defendant the evidence it plans to introduce. Eighteenth Judicial Dist., ¶ 49. This is only a disclosure requirement; the prosecution is not required to explain why the evidence is admissible. Eighteenth Judicial Dist., ¶ 49. After disclosure has occurred, the defendant may, via motion in limine, explain why the evidence should be excluded as irrelevant, unfairly prejudicial, relevant only for an improper propensity inference or otherwise inadmissible. Eighteenth Judicial Dist., ¶ 49. Then, the prosecutor must respond to the defendant’s objections and demonstrate the evidence’s admissibility. Eighteenth Judicial Dist., ¶ 49. The court should conduct a hearing and issue a written decision with appropriate findings of fact and conclusions of law. Eighteenth Judicial Dist., ¶ 49.
¶22 In this case, in the first step, Crider was placed on notice of the evidence the prosecution intended to introduce during the normal course of discovery, when the State turned over a number of police reports against him. Those reports dated back to 2004 and involved Crider and a former girlfriend as well as Crider and M. W. Crider knew the State intended to introduce this “evidence of crimes, wrongs, or acts pursuant to M.R.Evid. 404” when, in the second step under the foregoing process, he filed the brief supporting his motion in hmine. His brief specified that its purpose was to raise “objection to any such effort.” Specifically, Crider’s brief referenced the reports dating back to 2004 and highlighted the danger of bad acts evidence: That it could lead a jury to conclude that, because the defendant had engaged in past bad conduct, his character showed he had committed the crimes at issue. Because he did not know the precise Rule 404(b) exceptions on which the State intended to rely to introduce the evidence, the motion set forth general grounds for excluding Rule 404(b) evidence and opposed the evidence pursuant to Rule 403, on the grounds that it was more prejudicial than probative. Taking the third step noted above, the State responded, setting forth the specific evidence it sought to introduce and the argument that the evidence was admissible to show motive and absence of mistake or accident. Crider did not file a reply brief and neither party requested a hearing. Less than two weeks before trial, the District Court ruled on the motion, concluding that only the proposed evidence of prior acts involving M.W. was admissible, to show motive or absence of mistake or accident. The District Court excluded Crider’s bad acts with partners other than M.W.
¶23 We conclude that Crider’s motion in hmine was sufficiently specific to preserve his objection to the bad acts evidence for appeal. Crider’s brief made clear that he was objecting to the prior bad acts evidence because it could lead the jury to make an impermissible character inference, which is the essence of his argument on appeal. It also specifically referred to evidence of acts from between 2004-2007 — evidence the District Court excluded. These arguments made the substance of, and basis for, Crider’s objection to the prior bad acts evidence sufficiently clear that the District Court was able to address them. Further, it is evident from the court’s order in limine that it was able to grasp the theory and basis for Crider’s motion, as the court granted his motion in part by excluding all bad acts evidence involving victims other than M.W., but denied the motion as to acts involving M.W. This case is thus different from others like Vukasin, where the District Court was not directed to the issue the defendant sought to raise on appeal. Because the facts and chronology before us establish that the parties followed the steps outlined in Eighteenth Judicial Dist., and the District Court was able to make an informed ruling on Crider’s motion in limine, we address Crider’s contention that the evidence was improperly admitted on its merits.
¶24 Evidence of prior bad acts by a defendant is admissible as long as it is not offered or used for an improper purpose. To this end, Rule 404(b), provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In State v. Stewart, 2012 MT 317, ¶ 65, 367 Mont. 503, 291 P.3d 1187, we explained that the use of prior bad acts evidence to prove the commission of the crime at issue (or “actus reus”) does not necessarily run afoul of Rule 404(b). Rather, the rule prohibits a theory of admissibility: Using propensity evidence to draw “the inference from bad act to bad person to guilty person.” Stewart, ¶ 61. Rule 404(b)’s prohibition “ ‘applies only when that ultimate inference [of conduct] is coupled with the intermediate inference of the defendant’s personal, subjective character. If the prosecutor can arrive at an ultimate inference of conduct through a different intermediate inference, the prohibition is inapplicable.’ ” Stewart, ¶ 65 (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence vol. 1, § 4:1,4-5 to 4-6 (rev. ed., Thomson Reuters/West 2009)).
¶25 Contrary to the premise underlying Crider’s motive argument, a prior bad act need not give rise to a motive or reason for the defendant to commit the crime charged. Eighteenth Judicial Dist., ¶ 59. In Eighteenth Judicial Dist., ¶ 59, we explained that a prior bad act may evidence the existence of a motive without supplying the motive. In such cases, the motive is the cause and both the prior acts and the act at issue are effects. Eighteenth Judicial Dist., ¶ 59. The prosecutor uses the prior bad acts to show the existence of the motive and the motive strengthens the inference that the defendant committed the crime charged. Eighteenth Judicial Dist., ¶ 59.
¶26 Here, the State argues on appeal that the prior bad acts evidence showed “Crider’s motive to exert power and control over his victim, and to use force to do so[.]” The jury heard testimony from the State’s expert that domestic violence generally involves issues of power and control; and that “[sjexual violence is often included as a way to demean the partner and maintain that control.” The prior incident of physical violence occurred in Crider’s attempt to control M.W. by preventing her from leaving him and preventing her from calling the police. Breaking down M.W.’s door is an act that exerts control over M.W.’s physical space. Crider’s constant phone calls to M.W. and lurking outside her place of residence tend to show Crider’s desire to control M.W.’s movements by monitoring her location. His constant calls to her mother exert control over her by harassing her relatives. The motive of exerting power and control is common to the prior acts admitted and is probative of Crider’s motive as to the sexual acts at issue in this case.
¶27 For similar reasons, the incidents speak to absence of mistake or accident and are admissible because they refute an aspect of Crider’s affirmative defense. Part of Crider’s defense is that he and M.W. frequently engaged in rough sex and that the sex on the occasion at issue was consensual. In other words, Crider claims that if he exceeded her consent, he did so by accident. The evidence of prior incidents showing Crider’s motive to exert power and control over M.W. refutes that argument. In Eighteenth Judicial Dist., we permitted evidence that a mother accused of killing her child had mistreated the child in the past, when the mother suggested the child’s death was accidental. Eighteenth Judicial Dist., ¶ 61. Similarly, here, the State may present evidence that tends to refute Crider’s characterization of the brutalization he forced M.W. to endure as mistaken or accidental.
¶28 The Dissent relies on State v. Keys, 258 Mont. 311, 852 P.2d 621 (1993), to argue that “the defendant’s motive or intent is not relevant where the only issue is whether the victim consented to the sexual intercourse.” That argument falls flat because Keys, which predates Eighteenth Judicial Dist, is factually distinguishable, and the question of whether M.W. consented is not the only issue here. Keys concerned whether an incident involving indecent exposure and assault by the defendant with another victim was admissible as evidence that he had committed the sexual intercourse without consent at issue in that case. Keys, 258 Mont. at 316, 852 P.2d at 624. We concluded that the evidence was not relevant where the only issue was whether the alleged rape victim consented. Keys, 258 Mont. at 316, 852 P.2d at 624. Here, however, the State sought to admit Crider’s prior incidents with M. W. as probative of Crider’s motive to control or harass M. W. Such a motive was relevant, not only to Crider’s motive as to the sex acts alleged, but also to his motive to commit the offenses of PFMA and witness tampering with which he was also charged related to this incident. Thus, unlike in Keys, where the only crime charged was sexual intercourse without consent, M.W.’s consent is not the only issue. M.W., unlike the victim in Keys, was also the victim of the prior bad acts the prosecution sought to admit. The District Court excluded the evidence we found improper in Keys — evidence of the defendant’s prior acts with someone other than the victim. The evidence of Crider’s prior acts with M.W., however, was relevant and probative as to his motive to harass and control her. Accordingly, we conclude that the District Court did not abuse its discretion in determining that Crider’s prior acts were admissible to show motive or absence of mistake or accident.
¶29 2. Should we exercise plain error review to review the District Court’s instruction to the jury regarding the evidence of the previous bad acts ?
¶30 Where a defendant has not preserved an issue for appeal, this Court may, at its discretion, exercise plain error review to review an alleged error. We invoke the plain error doctrine sparingly, on a case-by-case basis. State v. Daniels, 2011 MT 278, ¶ 32, 362 Mont. 426, 265 P.3d 623. “For plain error review of an unpreserved issue, the appealing party must (1) show that the claimed error implicates a fundamental right and (2) ‘firmly convince’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the ftmdamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” Daniels, ¶ 32.
¶31 Crider argues that the District Court improperly instructed the jury that the evidence could be considered to prove motive, opportunity, plan, knowledge, identity, or absence of mistake or accident, when the court had previously ruled that the evidence could be considered only to prove motive or absence of mistake or accident. Citing no authority, he argues that this alleged error violated his fundamental right to due process of law guaranteed by the United States and Montana Constitutions. This, in his view, leaves unsettled the fundamental fairness of his trial and warrants plain error review. ¶32 Not only did Crider twice fail to object to the jury instruction in question, he acquiesced to it both times it was read at trial. The record shows that the purpose for which the instruction was offered was not to expand the types of use the jury might make of the evidence, but rather to limit them. The instruction stressed: “The Defendant is not being tried for those other crimes, wrongs or acts. He may not be convicted for any other offense than that charged in this case.” The jury instruction specifically provided that the evidence “was not admitted to prove the character of the Defendant or to show he acted in conformity therewith.” It accurately restated the law’s provision that evidence of other crimes, wrongs or acts may be used to prove, for instance, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. While the jury instruction could have been more specific about the purposes for which the evidence could be considered in this case, it adequately served the underlying Rule 404 purpose of barring the “inference from bad act to bad person to guilty person.” See Stewart, ¶ 61; Eighteenth Judicial Dist., ¶ 47. Crider has failed to convince this Court that the jury instruction leaves unsettled the fundamental fairness of the proceedings and we decline to exercise plain error review.
¶33 3. Did Crider receive ineffective assistance of counsel when his counsel failed to object to the State’s use of the previous bad acts?
¶34 This Court has adopted the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), in judging IAC claims. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095. To show IAC, a defendant must prove both (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defense. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. A defendant must satisfy both prongs of this test in order to prevail on an IAC claim. Whitlow, ¶ 11. There is a strong presumption that an attorney’s conduct falls within the wide range of reasonable professional service, and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered a sound trial strategy. Whitlow, ¶ 15. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The question, however, is not merely whether counsel’s conduct flowed from strategic decisions and trial tactics but whether it was based on reasonable professional judgment. Whitlow, ¶ 19.
¶35 Generally, this Court will only consider IAC claims raised on direct appeal where the record reveals the reasoning underlying a counsel’s actions or omissions. State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340; see State v. Aker, 2013 MT 253, ¶ 22, 371 Mont. 491, 310 P.3d 506 (only record-based IAC claims are reviewable on direct appeal). This is because the question of whether counsel’s conduct was based on the exercise of reasonable professional judgment generally demands that we inquire why counsel acted as alleged. To determine whether an IAC claim can be considered on direct appeal, we seek to answer that question by reference to the record. Aker, ¶ 34. We have explained that “a non-record based act or omission by counsel may actually include a failure to object to the admission of evidence which is evidenced by the record.” White, ¶ 16.
¶36 We will also consider IAC claims on direct appeal where counsel is faced with an obligatory, non-tactical action, or there is no plausible justification for defense counsel’s actions. Kougl, ¶ 15. In those cases, the question is not “why,” but “whether” the counsel acted, and if so, if counsel acted adequately. Kougl, ¶ 15. “Whether the reasons for defense counsel’s actions are found in the record or not is irrelevant. What matters is that there could not be any legitimate reason for what counsel did” Kougl, ¶ 15. Such situations are “relatively rare.” Kougl, ¶ 15.
¶37 Crider argues that there was no plausible justification for his counsel’s failure to object to the State’s use of the bad acts evidence at trial. He argues that the District Court admitted the bad acts evidence narrowly, to show that Crider had a motive to harm, control and harass M.W. and to show that M.W.’s injuries did not stem from an accident or mistake. The State improperly used the evidence to establish M.W. as a victim of domestic violence and thereby cure her “credibility problems,” he alleges. This use, he claims, exceeded the purposes for which the court had authorized the evidence could be used under the Rule 404(b) exceptions. His counsel's failure to object to the State’s use of this evidence, he asserts, was inexcusable and prejudiced his defense.
¶38 We are not persuaded that Crider’s counsel’s failure to object to the State’s use of the bad acts evidence at trial was unjustifiable. We have generally recognized that the timing and number of objections is a matter of counsel’s tactical discretion. Aker, ¶ 35. “An attorney is not required to make all possible objections during a trial, and may legitimately decide to forego certain objections as a matter of trial tactics.” State v. Morsette, 2013 MT 270, ¶ 19, 372 Mont. 38, 309 P.3d 978. To hold that Crider’s counsel was obligated to object to the State’s use of the evidence would gut this principle and we decline to do so.
¶39 This matter is suitable for consideration on direct appeal because the record is sufficient to evaluate Crider’s LAC claim related to his counsel’s alleged omission. Rule 404(b) only bars the use of prior acts evidence to show action in conformity with propensity. See Stewart, ¶ 61. Pursuant to Rule 402, all relevant evidence is admissible. M. R. Evid. 402. The Montana Rules of Evidence define relevant evidence as follows:
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.
M. R. Evid. 401 (emphasis added). The prior acts evidence was admissible to reflect on M.W.’s credibility, because the District Court had already concluded, pursuant to Rule 403, that its probative value outweighed the danger of prejudice. No grounds for an objection to the State’s use of the evidence existed and Crider’s counsel was not ineffective for failing to make one.
¶40 Even if this were not the case, however, the record reveals that Crider’s counsel’s actions, taken in context, were not ineffective. Crider made use of the motion in limine to attempt to exclude evidence of prior bad acts. When that motion was unsuccessful, Crider adjusted his trial strategy accordingly. Rather than objecting to the evidence at every turn, knowing those objections would be overruled, Crider chose to challenge the State’s use of that evidence to show that M.W.’s inconsistent testimony could be explained by domestic violence. In light of this tactical change, which was prompted by the denial of his motion in limine, Crider understandably chose not to raise repeated objections to the very evidence on which his own expert witness had based an opinion. This is precisely the circumstance in which preserving an objection via a motion in limine is of particular tactical advantage. Ingraham, ¶ 36. We conclude that the failure to object to the State’s use of the evidence was within the range of competent professional assistance, particularly considered in light of Crider’s trial strategy.
¶41 Accordingly, Crider’s IAC claim must fail.
CONCLUSION
¶42 We affirm in all respects the District Court’s decision.
CHIEF JUSTICE McGRATH, JUSTICES COTTER and BAKER concur.
|
[
18,
-35,
2,
49,
1,
-43,
-23,
-9,
-34,
4,
-14,
16,
33,
-67,
-29,
-76,
-45,
-26,
37,
19,
63,
0,
37,
24,
-40,
-17,
5,
-22,
-10,
-68,
21,
42,
5,
-44,
0,
2,
57,
63,
-1,
18,
5,
30,
0,
0,
-22,
9,
20,
16,
-15,
-35,
2,
-26,
-7,
-2,
56,
-32,
-7,
65,
3,
39,
-32,
24,
-53,
-42,
36,
-33,
35,
13,
-11,
-8,
25,
-27,
-70,
-34,
-2,
-6,
-23,
12,
7,
58,
0,
3,
-13,
36,
66,
-61,
65,
-9,
11,
49,
2,
-44,
13,
-41,
34,
26,
4,
-6,
41,
-13,
23,
-32,
-9,
-15,
5,
38,
-38,
11,
23,
20,
-21,
5,
-2,
-7,
1,
-12,
8,
-1,
-24,
-45,
22,
44,
10,
33,
51,
-39,
15,
48,
0,
-9,
-36,
7,
-6,
-48,
0,
-59,
-19,
-12,
-28,
24,
-4,
-37,
69,
0,
45,
-51,
-33,
0,
-9,
16,
-28,
7,
33,
-16,
14,
-85,
6,
-88,
34,
-30,
14,
-52,
-7,
66,
-21,
25,
-23,
-41,
-30,
-21,
-3,
3,
-29,
20,
30,
1,
-57,
-64,
-7,
-44,
34,
44,
27,
-8,
-25,
29,
44,
-66,
11,
6,
-58,
8,
36,
-69,
37,
1,
27,
52,
57,
-29,
-7,
-3,
28,
30,
1,
-22,
4,
-5,
-28,
-59,
61,
33,
-68,
-27,
10,
-51,
15,
-78,
-36,
13,
-22,
-12,
35,
-18,
-25,
-24,
-39,
-29,
-3,
20,
29,
15,
12,
-36,
-19,
23,
-13,
-37,
52,
3,
-14,
-11,
-25,
-51,
8,
27,
-19,
-25,
-44,
-15,
23,
-68,
23,
26,
-26,
-15,
9,
-10,
-24,
-26,
24,
9,
22,
-18,
-51,
45,
-6,
0,
-27,
-37,
34,
-24,
33,
4,
-39,
7,
-5,
70,
15,
13,
10,
-16,
14,
-16,
10,
-12,
-62,
24,
23,
-27,
8,
-49,
-26,
-19,
-10,
-20,
-12,
27,
-33,
34,
14,
-19,
33,
1,
-31,
-60,
-4,
0,
-3,
1,
1,
-6,
-68,
49,
24,
-30,
1,
6,
29,
-10,
13,
-30,
-35,
-65,
-48,
-54,
39,
-46,
-14,
-12,
-54,
53,
-17,
32,
22,
-6,
41,
-22,
-16,
-26,
5,
-21,
11,
-50,
-36,
29,
12,
44,
-17,
-26,
-27,
-36,
26,
-33,
-8,
15,
-20,
-47,
33,
-74,
10,
29,
-45,
-38,
-8,
47,
5,
5,
11,
11,
-77,
-50,
13,
-23,
7,
-14,
-4,
0,
13,
16,
26,
-8,
48,
-22,
40,
28,
-6,
-10,
-12,
-16,
46,
-10,
7,
45,
-6,
-4,
1,
-25,
29,
-8,
59,
23,
90,
1,
5,
-2,
-29,
-16,
-57,
-44,
-1,
7,
80,
43,
21,
26,
-31,
8,
-17,
55,
3,
1,
13,
-36,
75,
43,
17,
19,
2,
12,
-3,
-3,
15,
-22,
-13,
16,
-1,
29,
-7,
6,
-10,
-13,
-7,
-25,
-3,
-4,
64,
50,
18,
30,
-13,
68,
5,
10,
5,
36,
23,
51,
-19,
-39,
76,
9,
-21,
-14,
21,
-59,
-27,
-32,
-42,
37,
-22,
-44,
13,
39,
32,
70,
49,
34,
-44,
20,
-15,
24,
7,
5,
-15,
-5,
24,
-72,
61,
-17,
-22,
24,
-32,
37,
0,
7,
6,
7,
15,
-10,
-3,
-43,
-39,
13,
47,
-27,
50,
43,
-8,
-9,
17,
29,
5,
-66,
2,
20,
14,
-35,
-12,
-52,
37,
-41,
34,
1,
-49,
-29,
-3,
-86,
-25,
4,
-24,
7,
-43,
-23,
65,
27,
2,
-45,
34,
-21,
-5,
-23,
45,
29,
-15,
31,
17,
-1,
43,
18,
-4,
13,
74,
-14,
-31,
14,
-3,
-43,
-27,
-6,
-46,
22,
21,
-2,
-50,
-2,
-38,
-28,
14,
-114,
-2,
43,
-5,
-63,
0,
-21,
1,
-56,
45,
37,
44,
47,
-47,
-2,
-55,
-19,
34,
-12,
19,
-38,
-32,
34,
3,
11,
-21,
-24,
3,
12,
-47,
33,
54,
-20,
50,
-8,
35,
26,
5,
8,
-66,
8,
8,
0,
84,
44,
10,
-3,
-19,
-43,
-35,
-21,
-21,
-19,
18,
30,
31,
6,
-35,
-13,
-4,
0,
-60,
-39,
29,
11,
-10,
-44,
-26,
26,
-35,
-1,
67,
46,
11,
44,
31,
50,
20,
3,
0,
-102,
26,
8,
33,
-36,
-4,
-29,
-33,
9,
22,
6,
37,
0,
21,
26,
-38,
-20,
61,
21,
3,
15,
-29,
4,
4,
0,
28,
-40,
40,
-26,
30,
-34,
13,
-50,
40,
-24,
22,
31,
-29,
35,
-7,
-53,
-52,
-5,
6,
24,
6,
0,
14,
-3,
-55,
44,
-43,
35,
16,
-59,
-7,
3,
8,
-82,
39,
24,
47,
60,
-12,
27,
-41,
-46,
7,
-7,
-70,
29,
-60,
6,
-39,
-23,
9,
-74,
-27,
-8,
-2,
49,
52,
2,
-35,
41,
-6,
47,
-9,
35,
61,
51,
-1,
-11,
21,
4,
20,
2,
31,
-26,
-3,
36,
50,
3,
-11,
-39,
-7,
33,
59,
13,
-78,
-38,
45,
-7,
22,
-24,
9,
-28,
24,
45,
27,
-14,
-6,
-15,
48,
27,
-40,
29,
-3,
40,
13,
-35,
-10,
52,
-52,
41,
29,
43,
19,
-2,
4,
60,
19,
47,
1,
-12,
-23,
27,
-38,
-36,
4,
3,
-33,
-3,
25,
-37,
-39,
44,
21,
-12,
29,
55,
33,
26,
19,
11,
-22,
-4,
-66,
-29,
-5,
-50,
39,
-33,
-19,
14,
14,
41,
-11,
-18,
32,
-30,
22,
25,
25,
15,
-27,
-6,
39,
-18,
-26,
38,
15,
2,
5,
-30,
52,
17,
62,
-8,
70,
-36,
20,
36,
5,
13,
21,
12,
1,
23,
29,
47,
-27,
38,
-106,
11,
-6,
-74,
100,
-34,
0,
-47,
-19,
-26,
41,
42,
-11,
-3,
10,
-75,
-83,
20,
2,
29,
-10,
-42,
10,
-38,
-54,
1,
-31,
-8,
-32,
-5,
28,
-6,
-36,
5,
-45,
-14,
31,
-40,
-20,
-41,
-21,
-35,
37,
-5,
17,
8,
13,
-12,
8,
-23,
32,
30,
-4,
28,
-19,
43,
13,
12,
-45,
52,
52,
40,
-1,
24,
-48,
-53,
-51,
58,
-32,
-20,
49,
-30,
-2,
32,
19,
0,
7,
10,
2,
1,
0,
9,
66,
58,
-11,
-46,
4,
33,
-13,
43,
-15,
37,
46,
-37,
71,
-14,
-49,
0,
-16,
33,
-41,
16,
-58,
0,
15,
32,
-15,
44,
-7,
-15,
22,
37,
-47,
13,
20,
5,
-2,
-52,
-60,
-3,
42,
32,
-22,
86,
-26,
58,
-33,
35,
-10,
-10,
-48,
-33,
-25,
20,
-11,
-62,
-19,
-41,
-15,
24,
-74,
-25,
-8,
7,
-28,
0,
45,
22,
59,
13,
-4,
-38,
-13,
-56,
41,
-17,
17,
-13,
-121,
75,
26,
29
] |
CHIEF JUSTICE McGRATH
delivered the Opinion of the Court.
¶1 Birth mother A.N. (Mother) and birth father J.N. (Father) appeal from an order of the Eighth Judicial District Court, Cascade County, terminating their parental rights to their daughter, L.N. We affirm.
¶2 Mother and Father present the following issues for review:
¶3 Issue One: Whether the District Court afforded fundamentally fair procedures when it terminated the parental rights of Mother and Father.
¶4 Issue Two: Whether the District Court abused its discretion when it terminated the parental rights of Mother and Father.
PROCEDURAL AND FACTUAL BACKGROUND
¶5 L.N. is the fourth child bom to Mother and Father. Their parental rights to their three older children, J.N., M.N, and R.N. were previously terminated in a separate proceeding. The circumstances of that termination are discussed in our Opinion affirming the termination order, In re M.N., 2011 MT 245, 362 Mont. 186, 261 P.3d 1047, and summarized here. In December 2008, the Department of Public Health and Human Services (Department) obtained temporary legal custody of J.N. after a substantiated report of physical neglect. Treatment plans were ordered, and Mother and Father received 206 hours of intensive, one-on-one, in-home services. During this time, Mother gave birth to M.N. In January 2010, Mother and Father minimally completed their treatment plans. The case was dismissed after a family group meeting at which it was agreed they would continue to receive services. In March 2010, Mother and Father discontinued services, saying they had decided to “take a break from going to therapy.” In April 2010, J.N. was hospitalized with a depressed skull fracture. Mother and Father failed to offer a reasonable explanation for the injury. When the family arrived at the hospital, the children were unclean and had not been fed. A child protection specialist visited the home and found it to be extremely dirty and unsafe. The Department obtained temporary legal custody of J.N. and M.N. and sought termination of parental rights, arguing reasonable efforts at reunification were not required because Mother and Father had subjected the children to aggravated circumstances. While the petition for termination was pending, R.N. was bom. In March 2011, the District Court terminated the parental rights of Mother and Father to J.N., M.N., and R.N., finding clear and convincing evidence that they had subjected J.N. and M.N. to aggravated circumstances, specifically chrome and severe neglect.
¶6 L.N. was bom two years later, in March 2013. Upon receiving a report of the birth, two child protection specialists visited the hospital. Father became extremely hostile and combative, saying he and Mother should have left the state so the Department could not take their child. Due to his aggressive behavior toward the nurses and child protection specialists, Father was ultimately asked to leave the hospital. L.N. was removed from her parents’ care on March 18, 2013. Two child protection specialists met with Mother and Father on March 20,2013. On March 25, 2013, the State petitioned for a determination that reasonable efforts to provide reunification services are not required, termination of parental rights, and permanent legal custody. The petition requested termination of parental rights on the grounds that Mother and Father had previously subjected J.N. and M.N. to the aggravated circumstances of chronic and severe neglect. Alternatively, the petition requested termination on the grounds that the rights of Mother and Father to L.N.’s siblings had been terminated under circumstances relevant to their ability to care for L.N. The State also asked the District Court to set a hearing on the petition. A hearing was set for April 18,2013. Mother and Father were both served with notice of the petition and hearing.
¶7 On April 15, 2013, Father’s appointed counsel filed a motion for substitution of district judge, a motion to continue the hearing on the grounds he had not yet had opportunity to contact Father, a notice that the hearing would be contested, and a response to the State’s petition for termination of parental rights. The hearing was vacated and reset for May 29, 2013, due to the substitution of judge. On May 23, 2013, Father moved to vacate that hearing to allow additional time to conduct discovery. Father also moved to compel the State to respond to discovery requests. The hearing was vacated to allow resolution of the discovery issues.
¶8 No further action was taken until July 30,2013, when the State moved to set a show cause hearing. The State said it was actively complying with Father’s discovery requests, a process it claimed was time-consuming due to the volume of materials in the case file and the need to protect the confidentiality of the foster and adoptive families. The State also filed an amended petition for emergency protective services, determination that reasonable efforts are not required, termination of parental rights, and permanent legal custody.
¶9 On August 1,2013, Father moved to dismiss the petition for lack of authority for emergency protective services and failure to hold a timely show cause hearing. The District Court denied the motion to dismiss, reasoning that as a practical matter, dismissing the petition would only result in the filing of a new petition, which would cause further delay in the scheduling of a show cause hearing. The District Court granted emergency protective services and set a show cause hearing, ordering that the petition for a determination that reasonable efforts are not required, termination of parental rights, and permanent legal custody would be heard at the show cause hearing.
¶10 The hearing was held October 8, 2013. The District Court took judicial notice of the prior termination order and the Opinion of this Court affirming that order. Testimony at the hearing showed Mother and Father still did not understand why their parental rights had been terminated with respect to J.N., M.N., and R.N. With regard to L.N., Father deferred parenting tasks to Mother, who showed an inability to recognize and respond appropriately to the infant’s needs. Father continued to display anger issues and was hostile to Department staff. This hostility interfered with the Department’s ability to observe conditions in the home; nevertheless, limited observations indicated the home was cluttered and had a very strong odor. Mother and Father failed to obtain a social security number and birth certificate for L.N., meaning she could not receive medical benefits. They were not receiving any community services, despite recommendations to seek support for Mother’s depression and learning disabilities.
¶11 The District Court found the State had proven by clear and convincing evidence that Mother and Father had subjected J.N. and M.N. to aggravated circumstances, specifically chronic and severe neglect. Alternatively, the District Court also found that the parental rights of Mother and Father to L.N.’s siblings had been terminated xinder circumstances relevant to their ability to care for L.N. The District Court concluded reasonable efforts at reunification were not required and terminated the parental rights of Mother and Father to L.N.
STANDARD OF REVIEW
¶12 We review a district court’s decision to terminate parental rights for abuse of discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. Findings of fact are reviewed for clear error and conclusions of law are reviewed for correctness. In re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168 P.3d 629. A parent’s right to the care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures. In re D.B., ¶ 17.
DISCUSSION
¶13 Issue One: Whether the District Court afforded fundamentally fair procedures when it terminated the parental rights of Mother and Father.
¶14 Mother and Father claim they were denied fundamentally fair process when the State failed to request emergency protective services in its initial petition. When a child protection specialist has reason to believe a child is in “immediate or apparent danger of harm,” he or she may immediately remove the child. Section 41-3-301(1), MCA. After the child is safe, the Department “may ... take appropriate legal action.” Section 41-3-301(1), MCA. The Department must notify the parents of the removal at the time of the removal or as soon as possible thereafter. Section 41-3-301(1), MCA. Notice must include the reason for the removal and information about the show cause hearing. Section 41-3-301(1), MCA. Additionally, the child protection specialist must submit an affidavit regarding the circumstances of the removal to the county attorney within two working days, and provide a copy to the parents if possible. Section 41-3-301(6), MCA. An abuse and neglect petition must be filed within five working days of the removal. Section 41-3-301(6), MCA. If a petition for emergency protective services is to be filed, the child protection specialist must interview the parents, if they are reasonably available, before filing the petition. Section 41-3-301(8), MCA. The Department is to make necessary arrangements for the child’s care and well-being “prior to the comí hearing.” Section 41-3-301(9), MCA.
¶15 An abuse and neglect petition may request relief including emergency protective services, temporary investigative authority, temporary legal custody, termination of parental rights, appointment of a guardian, or a determination that reunification services are not required. Section 41-3-422(l)(a), MCA. A petition for termination of parental rights may be the initial petition filed if the petition also requests a determination that reunification services are not required. Section 41-3-422(l)(d), MCA. A show cause hearing must be conducted within 20 days of the filing of an initial petition, unless the parties agree otherwise or an extension is granted by the court. Section 41-3-432(l)(a), MCA. Following the show cause hearing, the court may enter an order for the relief requested. Section 41-3-432(7), MCA.
¶16 The Department removed L.N. from the hospital on March 18, 2013. Father exhibited aggressive behavior toward nurses and child protection specialists and talked about leaving the state with L.N. to avoid the Department’s authority. Child protection specialists were justified in believing L.N. to be at risk of immediate harm. Section 41-3-301(1), MCA. Child protection specialists met with Mother and Father again two days later to discuss the reasons for the removal. Section 41-3-301(1), MCA. An affidavit stating the reasons for the removal was submitted to the county attorney on March 22, 2013. Section 41-3-301(6), MCA. Although this was not within two working days, Mother and Father have not objected to this delay. The county attorney filed the initial petition on March 25, 2013, within five working days as required by statute. Section 41-3-301(6), MCA.
¶17 The initial petition requested both a determination that reasonable efforts are not required and termination of parental rights. This relief may be requested in an initial petition. Section 41-3-422(l)(d), MCA. The statute governing abuse and neglect petitions does not require an initial petition to contain a request for emergency protective services. Section 41-3-422(l)(d), MCA. Nor does the emergency protective services statute require the Department to file a petition specifically requesting that relief. Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal. Section 41-3-301(6), MCA. That was done here.
¶18 On March 29, 2013, the District Court set a hearing date and issued notice of the petition and hearing to Mother and Father. Mother and Father had already been notified of the reasons for the removal, and they were provided with information about the hearing as soon as it was available. Section 41-3-301(1), MCA. Although the hearing was initially set for April 18,2013,24 days after the filing of the petition, Mother and Father did not object to this initial delay. Section 41-3-432(l)(a), MCA. The hearing was continued twice on Father’s motions. Three months passed between Father’s second motion for a continuance on April 23, 2013, and the State’s second request for a hearing on July 30,2013. During this time, neither Mother nor Father objected to the delay.
¶19 The hearing initially set for April 18, 2013, was not referred to as a show cause hearing; nevertheless, the notice provided to Mother and Father called upon them to “show cause” why the State’s petition should not be granted. The hearing, by whatever name, provided them an initial appearance on the petition. The District Court appropriately held that dismissed of the petition for failure to nominally request a show cause hearing would not serve to protect either L.N.’s best interests or the fundamental rights of Mother and Father, as it would only have resulted in the State filing a new petition and re-starting the clock on the show cause hearing.
¶20 Moreover, the distinction between a show cause hearing and a termination hearing, under the circumstances, was ultimately one without a difference. At a show cause hearing, a district court “may enter an order for the relief requested....” Section 41-3-432(7), MCA. When the show cause hearing was ultimately held on October 8,2013, the District Court appropriately ordered the relief requested by the State in its initial petition. See In re T.S.B., 2008 MT 23, ¶ 6, 341 Mont. 204, 177 P.3d 429 (affirming termination of parental rights at show cause hearing where initial petition requested both termination and determination that reasonable efforts are not required). Mother and Father were provided notice of the hearing, appointed counsel, permitted to engage in discovery, allowed to present testimony, and given the opportunity to cross-examine the State’s witnesses. The District Court afforded Mother and Father fundamentally fair procedures.
¶21 Issue Two: Whether the District Court abused its discretion when it terminated the parental rights of Mother and Father.
¶22 Mother and Father argue the District Court abused its discretion by terminating their parental rights to L.N. without sufficient evidence regarding their current ability to care for her. They claim the State failed to show by clear and convincing evidence that the circumstances of the prior terminations were relevant to their ability to adequately care for L.N.
¶23 A district court may order termination of parental rights upon a finding of clear and convincing evidence that the parent has subjected a child to aggravated circumstances, including chronic and severe neglect. Sections 41-3-609(l)(d), -423(2)(a), MCA. A showing that the prior aggravated circumstances are relevant to the child at issue is not required. Section 41-3-423(2)(a), MCA. A district court may also order termination upon a finding of clear and convincing evidence that the parent’s rights to another child have been terminated under circumstances relevant to the parent’s ability to adequately care for the child at issue. Sections 41-3-609(l)(d), -423(2)(e), MCA. Under this section, a showing that the prior circumstances are relevant to the child at issue is required. Section 41-3-423(2)(e), MCA. If a district court makes either of these findings, the Department is not required to make reasonable efforts to provide reunification services. Section 41- 3-423(2), MCA.
¶24 The District Court terminated the parental rights of Mother and Father based on the finding they had previously subjected J.N. and M.N. to the aggravated circumstances of chronic and severe neglect. This finding was not clearly erroneous. In re M.N., ¶ 30. Under § 41-3-423(2)(a), MCA, this finding alone is a sufficient basis for the termination of parental rights without reasonable efforts at reunification. The District Court was not required to find that the circumstances of the prior termination were relevant to the parents’ ability to care for L.N. in order to terminate their parental rights under § 41-3-423(2)(a), MCA. The District Court did not abuse its discretion when it terminated the parental rights of Mother and Father under § 41-3-423(2)(a), MCA.
¶25 The State alternatively petitioned for termination under § 41-3-423(2)(e), MCA. Although it was not required to, having already found sufficient grounds for termination under § 41-3-423(2)(a), MCA, the District Court also addressed this argument. The District Court found that the parental rights of Mother and Father to J.N., M.N., and R.N. were terminated due to chronic and severe neglect, the circumstances of which remained relevant to their ability to adequately care for L.N. This finding was based on testimony regarding Mother’s inability to read and respond to L.N.’s cues, Father’s demonstrated anger issues and passive involvement in parenting, unclean conditions in their home, and the exhaustive level of intervention previously provided without success. The District Court’s finding that the circumstances of the prior terminations were relevant to Mother and Father’s ability to care for L.N. was not clearly erroneous. The District Court did not abuse its discretion when it alternatively terminated the parental rights of Mother and Father under § 41-3-423(2)(e), MCA.
¶26 Affirmed.
JUSTICES WHEAT, COTTER, McKINNON, SHEA, BAKER and RICE concur.
|
[
-41,
-10,
-42,
-24,
30,
-54,
-12,
-14,
30,
-16,
-6,
40,
-2,
1,
-50,
-34,
-40,
-14,
72,
4,
-29,
51,
29,
36,
16,
23,
6,
-7,
-35,
-27,
10,
-67,
49,
-13,
2,
47,
48,
37,
41,
12,
29,
-3,
6,
-37,
-18,
35,
27,
64,
-16,
10,
12,
-49,
-18,
27,
17,
-9,
64,
58,
-55,
19,
16,
2,
-14,
-7,
51,
-5,
-26,
29,
-6,
36,
10,
-13,
-65,
-49,
-6,
28,
11,
-25,
-13,
-2,
-24,
31,
-25,
-49,
33,
-2,
6,
11,
-57,
60,
19,
1,
-11,
-11,
13,
61,
-28,
0,
-20,
-32,
13,
-10,
15,
16,
22,
-10,
-36,
-23,
43,
5,
30,
4,
6,
23,
0,
-5,
-4,
36,
-20,
28,
-5,
61,
-1,
-37,
87,
-5,
3,
-19,
42,
-4,
-61,
-8,
53,
10,
-46,
-42,
13,
-35,
44,
-13,
-46,
-9,
58,
4,
-3,
49,
-43,
-26,
20,
-71,
40,
-30,
41,
33,
35,
-9,
-32,
30,
-22,
31,
56,
16,
8,
-20,
-37,
-81,
-6,
8,
27,
9,
54,
-3,
-16,
-6,
20,
0,
-13,
-7,
-36,
-38,
17,
49,
5,
-12,
-30,
-41,
25,
-59,
-1,
-19,
-38,
-2,
0,
19,
-7,
73,
5,
7,
-14,
-18,
-25,
27,
43,
19,
-15,
-1,
35,
-48,
10,
-45,
45,
77,
-26,
-52,
-11,
-11,
6,
-32,
-95,
16,
26,
14,
26,
-63,
-54,
2,
6,
-5,
-15,
-49,
3,
-22,
6,
3,
31,
36,
-23,
4,
39,
14,
44,
8,
11,
-39,
-22,
27,
-23,
-3,
-19,
-5,
1,
22,
34,
43,
-38,
9,
32,
34,
8,
-4,
33,
-1,
-15,
-1,
-22,
38,
-20,
14,
28,
-37,
-13,
9,
7,
-36,
-8,
-7,
27,
1,
4,
55,
15,
28,
59,
14,
38,
-6,
43,
14,
26,
38,
-13,
0,
8,
-54,
10,
-35,
-18,
0,
-77,
28,
-42,
-7,
-29,
56,
-68,
10,
4,
37,
39,
15,
73,
14,
-20,
-19,
21,
-22,
-75,
-6,
33,
75,
7,
11,
2,
2,
-30,
-29,
-33,
-12,
18,
-36,
-28,
52,
1,
-34,
58,
8,
-8,
30,
38,
-20,
23,
-21,
-18,
-43,
-41,
-69,
35,
4,
38,
-9,
25,
76,
3,
33,
-66,
2,
-37,
-78,
4,
-8,
15,
-5,
-38,
-21,
-68,
58,
69,
0,
-11,
-55,
-8,
-5,
5,
30,
29,
-5,
57,
0,
10,
31,
0,
-56,
2,
19,
-32,
33,
-4,
12,
3,
-39,
54,
-59,
-32,
-18,
-9,
52,
-6,
4,
9,
-97,
-19,
-10,
31,
9,
23,
35,
11,
-7,
8,
-45,
-35,
-30,
43,
-7,
23,
40,
-49,
-42,
-21,
1,
-16,
70,
35,
9,
15,
12,
6,
21,
0,
7,
-44,
1,
-15,
24,
25,
-43,
32,
-23,
-44,
54,
-61,
-3,
-8,
39,
-15,
7,
12,
-56,
42,
24,
-21,
31,
48,
51,
-4,
-45,
-36,
-1,
-36,
-28,
-28,
5,
8,
31,
7,
-10,
-24,
-4,
-43,
-8,
7,
13,
39,
11,
50,
102,
15,
13,
36,
5,
-2,
-75,
-19,
33,
-6,
45,
-62,
-4,
-8,
15,
33,
-6,
32,
-28,
2,
-66,
-16,
-19,
5,
-42,
62,
-8,
3,
9,
11,
-42,
5,
28,
-65,
-63,
7,
-19,
12,
-3,
-51,
3,
50,
43,
17,
4,
-1,
41,
-10,
-29,
-23,
9,
-16,
-45,
-73,
-40,
-6,
40,
-33,
45,
8,
44,
0,
-23,
49,
-16,
33,
-19,
5,
-5,
-4,
-63,
31,
17,
20,
-22,
26,
-47,
-39,
35,
18,
14,
-47,
42,
-3,
-43,
38,
24,
-25,
-7,
-13,
-18,
-48,
7,
-34,
-37,
-3,
-11,
-44,
17,
2,
10,
8,
0,
32,
-54,
29,
-2,
-68,
37,
-33,
-31,
10,
-71,
35,
-16,
-3,
-41,
-82,
5,
-3,
-9,
0,
-12,
-36,
-12,
-55,
44,
34,
6,
-8,
12,
27,
-14,
1,
-61,
-14,
20,
-46,
-41,
21,
-57,
2,
0,
-18,
20,
-40,
-17,
-46,
0,
-30,
-29,
-31,
-5,
11,
-27,
15,
36,
33,
-48,
30,
-20,
58,
1,
4,
7,
63,
33,
-38,
79,
-21,
-13,
63,
-5,
18,
31,
22,
22,
25,
3,
-11,
46,
-27,
-3,
26,
34,
-4,
10,
58,
36,
7,
-15,
41,
15,
-14,
7,
-29,
93,
-25,
20,
-17,
-13,
61,
9,
8,
-46,
-19,
-36,
-4,
-28,
0,
30,
-24,
2,
10,
54,
-30,
48,
19,
-1,
-1,
-17,
-51,
99,
7,
61,
-52,
60,
26,
-31,
8,
22,
-7,
12,
-33,
-33,
0,
-4,
9,
5,
-28,
-12,
24,
-36,
-16,
-3,
-45,
46,
-46,
-48,
50,
8,
30,
-38,
9,
0,
-40,
-52,
35,
8,
-30,
10,
-32,
2,
4,
35,
0,
16,
-14,
1,
14,
38,
-40,
-10,
-36,
12,
-2,
-51,
9,
-37,
-73,
-33,
57,
0,
-7,
19,
44,
4,
72,
64,
4,
-8,
-61,
-16,
22,
-38,
6,
-21,
-28,
34,
-11,
-14,
-38,
6,
-20,
-61,
-50,
40,
-3,
8,
-21,
-26,
42,
32,
33,
13,
-12,
26,
-13,
-6,
86,
66,
-24,
-15,
-57,
-3,
24,
29,
13,
-25,
91,
66,
-105,
27,
0,
46,
-19,
-22,
-11,
25,
-19,
-8,
23,
-1,
-5,
-14,
80,
0,
22,
-18,
8,
25,
5,
20,
42,
-7,
-30,
19,
-23,
-5,
-31,
-16,
-29,
7,
48,
43,
-23,
16,
4,
-69,
21,
28,
57,
-14,
39,
-11,
24,
-53,
18,
22,
9,
-32,
-46,
8,
-7,
-30,
-23,
10,
15,
-30,
27,
72,
-2,
10,
16,
31,
-36,
-63,
15,
-22,
-41,
-97,
9,
-42,
-25,
-18,
97,
53,
-40,
16,
48,
-22,
40,
-7,
-23,
-62,
-43,
-50,
35,
-10,
-52,
60,
-24,
-22,
-104,
3,
-20,
16,
-41,
15,
-39,
8,
-36,
7,
28,
-31,
6,
5,
68,
2,
6,
2,
-12,
-68,
23,
-27,
25,
-29,
23,
-4,
0,
-16,
-61,
-11,
-26,
76,
-14,
44,
-15,
15,
45,
-30,
-45,
25,
-5,
-2,
-6,
4,
31,
8,
-7,
26,
28,
-89,
-73,
19,
27,
22,
-42,
18,
41,
43,
4,
-36,
-7,
27,
-46,
23,
-15,
23,
-29,
-52,
2,
0,
20,
-85,
12,
3,
-2,
8,
-50,
-11,
11,
-37,
41,
-5,
-74,
-7,
-14,
1,
-48,
12,
-25,
-23,
-62,
-15,
19,
-8,
30,
14,
56,
17,
10,
-13,
36,
-2,
22,
-12,
16,
-16,
-1,
20,
-77,
-11,
-52,
-19,
88,
21,
22,
-32,
37,
-83,
-8,
9,
67,
47,
4,
-29,
87,
16
] |
CHIEF JUSTICE McGRATH
delivered the Opinion of the Court.
¶ 1 Bruce Wayne McEvoy appeals from the Amended Judgment of the Twentieth Judicial District Court, Lake County, sentencing him to a term of 90 years in the Montana State Prison with 30 years suspended.
¶2 The issue presented for review is whether the District Court erred when it resentenced McEvoy during a status conference docketed under a newly-created civil cause number, when neither McEvoy nor his attorney were present.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 McEvoy was convicted of misdemeanor assault and felony sexual intercourse without consent in 1988. He was also designated a persistent felony offender (PFO). For misdemeanor assault, McEvoy was sentenced to six months in the county jail. For felony sexual intercourse without consent, he was sentenced to 40 years at the Montana State Prison. This sentence was followed by a consecutive 50 years at the Montana State Prison, with 30 suspended, for the PFO offense.
¶4 On July 5,2013, McEvoy filed a petition for writ of habeas corpus in this Court. He claimed he was wrongly sentenced for both the underlying felony and his PFO status. Citing State v. Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74, we concluded his sentence was facially illegal because a PFO sentence is intended to replace the sentence for the underlying felony. We granted the petition and remanded for correction of the illegal sentence. McEvoy v. Kirkegard, 372 Mont. 549 (table), 2013 Mont. LEXIS 364.
¶5 On remand, the District Court filed our Order under a new civil cause number, DV-13-225, which was assigned to Judge Deborah Bom Christopher. McEvoy had originally been sentenced under criminal cause number DC-87-91, assigned to Judge C.B. McNeil. Judge McNeil retired on September 5, 2013. Before doing so, he signed an order stating that Judge Christopher “shall have jurisdiction over all matters assigned to Department 1 requiring judicial action....”
¶6 On September 10, 2013, Judge Christopher entered nearly identical orders in both the civil and criminal cases, scheduling a status conference for September 19,2013. The stated purpose of this conference was for the parties to “set forth the procedure they believe necessary for preparation, appropriate investigation, and filings to be provided to the Court Hearing on Resentencing....”
¶7 Under the criminal cause number, McEvoy moved for a substitution of judge. Judge Christopher issued an order stating as follows:
Given the undersigned is not the judge in original jurisdiction and having only authority to act pursuant to Department 1 District Judge’s administrative order attached hereto and which is objected to by the Defendant, this matter is stayed until the new District Judge for Department 1 is selected and assumes jurisdiction.
This order was entered only in the criminal case.
¶8 On September 19,2013, the status conference was held under the civil cause number. Judge Christopher described the case as “a civil matter.” Neither McEvoy nor his attorney, Jack Sands, were present for the status conference. Noting their absence, Judge Christopher said, “The most that the Court is aware of is that there was, as I recall, some motion to substitute me off of the case that’s in Department 1, which he can’t do because I’m not the Court in general jurisdiction, and no substitution has been filed in this matter.” Judge Christopher then asked the County Attorney his position in the matter. The County Attorney expressed some reluctance with moving forward “because the Supreme Court has ordered us to hold the hearing... .” When Judge Christopher persisted, he said,
The judge’s intention was clear, and that was to impose a sentence of 80 years with I believe 30 suspended.... [T]he State’s position is that the action the Court should take on this is to sentence the defendant to 80 years with 30 suspended under the persistent felony offender statute.
Judge Christopher responded, “Prepare it and I’ll sign it.”
¶9 Following the status conference, a minute entry was placed in the civil case file. On September 26, 2013, after receiving notice of the minute entry, Sands filed a motion to reconsider in the criminal case. He claimed neither he nor McEvoy had attended the status conference because they believed “all matters had been stayed.” Sands noted he had never appeared in the civil case. The case register supports this claim.
¶10 The District Court did not rule on the motion to reconsider. On October 11, 2013, the District Court issued the Amended Judgment under the criminal cause number, sentencing McEvoy to the Montana State Prison for a term of 90 years, with 30 suspended. This appeal followed.
STANDARD OF REVIEW
¶11 This Court reviews a criminal sentence for legality only. State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648. Whether the district court adhered to the requirements of the applicable sentencing statutes is a question of law, which we review de novo. State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102.
DISCUSSION
¶12 A petition for writ of habeas corpus is an original legal proceeding, independent of the underlying case. Lott v. State, 2006 MT 279, ¶ 9, 334 Mont. 270, 150 P.3d 337 (quoting August v. Burns, 79 Mont. 198, 213, 255 P. 737, 741 (1927)). A court granting a petition for writ of habeas corpus must enter an order “with respect to the judgment or sentence in the former proceeding and any supplementary orders as to reassignment, retrial, custody, bail, or discharge as may be necessary and proper.” Section 46-22-306(1), MCA (emphasis added). Thus, although the habeas proceeding itself is independent, the resulting order is directed to the underlying case. The source of the District Court’s error here was the creation of a separate civil case for the Order issued by this Court after granting McEvo/s petition for writ of habeas corpus.
¶ 13 As a result of that error, the District Court persisted in the fiction that a proceeding during which it imposed a criminal sentence of 90 years in prison was merely a civil status hearing. The order of the District Court stating that “this matter is stayed,” issued in the criminal case, quite reasonably led Sands to believe that the matter had been stayed. It appears Sands was unaware that the District Court was inexplicably pursuing the identical matter under a civil cause number. It is, furthermore, unclear what the District Court envisioned when it ordered a stay in one case but not the other, given that the two cases addressed precisely the same issue.
¶14 The outcome of this bizarre procedural arrangement is that McEvoy was sentenced with a complete lack of statutory or constitutional process. A defendant is entitled to a sentencing hearing and must be afforded the opportunity to be heard. Section 46-18-115, MCA; State v. Webb, 2005 MT 5, ¶ 20, 325 Mont. 317, 106 P.3d 521. McEvoy was sentenced to 90 years in prison without being afforded such an opportunity. He was not given notice of what turned out to be the sentencing hearing for two reasons: first, because it was noticed as a mere status conference; and second, because he was told it had been stayed. In its brief, the State claims, “McEvoy got the remedy that he asked for and that he was entitled to. It is impossible to tell from his appeal what else he could possibly expect from reopening this settled case.” We disagree. It is very easy to tell that McEvoy expects nothing more or less than a fair hearing.
CONCLUSION
¶15 For the reasons stated above, we remand with instructions to the District Court to hold a sentencing hearing that complies with the requirements of § 46-18-115, MCA. Moreover, the sentencing hearing should be conducted in cause number DC-87-91. The civil proceeding, cause number DV-13-225, should be dismissed.
¶16 Reversed and remanded.
JUSTICES COTTER, WHEAT, BAKER and RICE concur.
Though the least of the defects present in this case, we note that the written judgment, which imposed a sentence of 90 years, conflicts with the sentence of 80 years pronounced at the status conference. Section 46-15-116, MCA. The District Court also failed to state the reasons for the sentence “in open court on the record” as well as in the written judgment. Section 46-18-115(6), MCA.
|
[
13,
-6,
-14,
1,
-14,
-49,
-42,
-47,
-53,
33,
16,
3,
37,
-7,
26,
-10,
-26,
10,
50,
-4,
16,
-10,
24,
53,
-38,
-3,
-30,
15,
-23,
16,
-4,
-38,
13,
-83,
44,
-11,
34,
14,
20,
45,
86,
-42,
-11,
-15,
-57,
30,
-30,
36,
-26,
6,
14,
-20,
38,
34,
15,
22,
-32,
-14,
-41,
41,
-20,
-1,
-66,
-18,
30,
-34,
5,
33,
-19,
32,
28,
-1,
-37,
-30,
-12,
62,
-11,
-31,
0,
27,
-10,
19,
-45,
7,
-43,
-13,
-10,
-81,
-8,
3,
-19,
-9,
-15,
-3,
29,
-33,
3,
-39,
3,
-15,
0,
-2,
-24,
2,
16,
12,
-20,
-1,
23,
38,
27,
-5,
2,
-48,
25,
-69,
-15,
10,
47,
-26,
-9,
56,
2,
5,
9,
-20,
89,
5,
38,
-3,
16,
29,
21,
-61,
-34,
0,
28,
27,
48,
-9,
18,
-36,
34,
12,
31,
-22,
-32,
-76,
24,
28,
-19,
26,
71,
7,
21,
43,
18,
47,
-34,
8,
36,
13,
15,
-7,
3,
-8,
6,
16,
-5,
-32,
42,
-8,
-4,
35,
24,
-45,
-55,
-17,
24,
10,
3,
63,
52,
-47,
-46,
57,
-41,
-32,
-70,
-36,
-20,
-38,
42,
-7,
95,
-17,
-12,
33,
50,
29,
-19,
40,
78,
-6,
25,
-39,
19,
-18,
40,
-16,
-22,
-62,
2,
13,
16,
-13,
33,
-12,
-32,
-13,
-30,
24,
44,
-43,
-8,
-62,
54,
11,
-1,
-24,
1,
25,
26,
-7,
-13,
-3,
-14,
14,
-11,
70,
-57,
-2,
0,
-48,
51,
23,
-53,
-38,
-38,
-15,
33,
-8,
-48,
-13,
-49,
5,
25,
-55,
-54,
33,
17,
-41,
24,
-18,
-32,
9,
-40,
5,
-1,
-18,
54,
3,
-1,
-61,
0,
30,
7,
-17,
-25,
13,
72,
52,
24,
-4,
6,
0,
-11,
8,
-13,
3,
-8,
-2,
-13,
18,
63,
-48,
49,
-66,
-35,
-27,
-13,
5,
-28,
44,
-13,
-4,
20,
30,
-6,
-13,
42,
-19,
4,
-20,
2,
-72,
0,
27,
38,
-10,
-66,
0,
-16,
-101,
-18,
1,
78,
-3,
-37,
7,
-16,
18,
-13,
5,
56,
-17,
16,
41,
-14,
47,
8,
-45,
7,
-2,
-62,
36,
14,
13,
3,
-24,
23,
-7,
35,
30,
-75,
-48,
-52,
-61,
19,
-9,
33,
-12,
-54,
-36,
14,
40,
-16,
4,
-1,
47,
8,
-42,
17,
54,
49,
-6,
64,
28,
-15,
52,
16,
-7,
33,
-28,
27,
-21,
17,
-10,
-2,
-43,
-4,
13,
-64,
-11,
-8,
57,
-7,
25,
40,
-3,
32,
-5,
54,
9,
10,
-44,
-11,
29,
19,
-27,
-15,
-2,
-11,
-2,
0,
2,
-28,
-78,
-36,
15,
8,
46,
27,
-88,
64,
58,
-11,
-22,
6,
-27,
18,
35,
-25,
-15,
-31,
35,
-36,
16,
7,
5,
-7,
-26,
-43,
-3,
38,
-12,
27,
-44,
-27,
6,
5,
13,
6,
-50,
-57,
64,
13,
40,
23,
-58,
0,
-45,
-18,
-33,
18,
-44,
-13,
-32,
-13,
15,
6,
5,
36,
47,
-12,
26,
0,
18,
-24,
-13,
-18,
29,
-38,
-47,
34,
-11,
-37,
4,
-7,
10,
-66,
-10,
7,
21,
2,
31,
-7,
14,
35,
0,
-2,
0,
-44,
56,
50,
-32,
83,
-19,
0,
-6,
24,
50,
8,
24,
-14,
-25,
62,
0,
38,
60,
-21,
13,
42,
43,
13,
28,
-22,
-42,
-45,
2,
-17,
-34,
-68,
9,
17,
47,
5,
-82,
26,
-12,
14,
-12,
36,
-26,
53,
2,
-12,
29,
25,
6,
17,
27,
13,
5,
-15,
-35,
-5,
12,
-23,
8,
4,
7,
5,
30,
-22,
29,
-57,
-7,
13,
-33,
-1,
53,
-27,
5,
-1,
23,
-4,
5,
13,
29,
65,
2,
-44,
-2,
-28,
-35,
45,
-49,
19,
-3,
-13,
2,
-6,
14,
3,
5,
-14,
-48,
0,
-29,
6,
-1,
9,
-13,
57,
-6,
85,
40,
-12,
-8,
-17,
61,
-31,
18,
37,
14,
-24,
-31,
-37,
27,
-31,
-19,
21,
0,
-27,
-27,
-57,
-76,
-2,
2,
-15,
-60,
-1,
-43,
1,
-41,
-71,
11,
10,
-20,
-16,
66,
5,
-24,
15,
13,
18,
18,
-16,
-19,
48,
40,
-32,
0,
34,
-34,
7,
38,
80,
24,
-12,
46,
-26,
-22,
-14,
-18,
5,
26,
-24,
16,
-2,
42,
-10,
-57,
2,
-12,
1,
-27,
35,
-29,
-26,
-30,
-36,
-4,
1,
-18,
-39,
44,
-3,
38,
-47,
44,
-13,
6,
36,
-13,
-58,
-1,
-89,
42,
12,
35,
5,
-43,
-31,
-7,
31,
-10,
-20,
-13,
9,
24,
6,
41,
27,
-5,
18,
-59,
-73,
22,
-30,
-41,
-46,
36,
19,
1,
-19,
-1,
29,
-8,
-42,
47,
-3,
26,
24,
30,
-21,
6,
29,
32,
0,
-40,
-33,
-64,
18,
4,
7,
1,
-13,
-15,
0,
11,
-32,
14,
-13,
81,
84,
15,
-39,
22,
12,
-44,
13,
29,
-26,
9,
53,
-24,
34,
14,
40,
-8,
15,
9,
-24,
3,
41,
12,
27,
-7,
-90,
60,
-29,
-10,
-47,
-42,
-47,
-17,
-16,
-6,
5,
4,
19,
-5,
11,
-13,
-27,
-43,
12,
58,
29,
-12,
-1,
-86,
3,
-1,
15,
19,
-6,
18,
-9,
32,
40,
69,
24,
-20,
-44,
-11,
-25,
-11,
23,
23,
-27,
-36,
74,
0,
10,
8,
20,
-23,
-19,
18,
-16,
8,
16,
-24,
-73,
94,
-31,
57,
0,
-41,
64,
-31,
18,
1,
30,
8,
30,
1,
59,
29,
-60,
8,
-22,
-23,
-6,
20,
-25,
-15,
15,
20,
-16,
-2,
-21,
41,
29,
-45,
10,
-33,
-18,
35,
79,
30,
-26,
37,
27,
-21,
-35,
-6,
83,
-20,
-7,
-6,
24,
-57,
-57,
18,
7,
-9,
-6,
-34,
-17,
-58,
-93,
46,
22,
41,
-6,
-47,
-2,
-2,
1,
-57,
59,
15,
42,
41,
1,
21,
-48,
-36,
4,
39,
-11,
-17,
-6,
7,
8,
-4,
-30,
62,
43,
43,
-13,
0,
-46,
-52,
-30,
56,
-34,
62,
-6,
-2,
-60,
-14,
53,
-51,
-16,
-10,
-22,
1,
37,
9,
11,
72,
-22,
-65,
-47,
36,
16,
34,
-49,
50,
7,
45,
44,
-9,
15,
-36,
-16,
21,
-23,
-4,
-11,
-14,
-41,
-43,
-27,
23,
12,
-72,
-43,
12,
-27,
24,
4,
-12,
60,
-6,
-32,
-60,
-11,
11,
-5,
11,
-10,
-13,
-27,
-28,
62,
-23,
-21,
18,
16,
30,
50,
-69,
-4,
-19,
8,
41,
-15,
-46,
7,
12,
-19,
-11,
-23,
-7,
86,
-47,
-31,
-23,
-22,
6,
58,
2,
-24,
39,
-59,
13,
22,
32
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 James Bradley Cudd, Sr., (Cudd) appeals from his conviction in the Twenty-Second Judicial District Court, Big Horn County, for committing the offense of Sexual Intercourse without Consent in violation of § 45-5-503, MCA. We affirm and restate Cudd’s sole issue on appeal as follows:
¶2 Did the District Court abuse its discretion by denying Cudd’s challenge for cause of a juror whose daughter had been the victim of sexual violence?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The State charged Cudd with Sexual Intercourse without Consent, alleging that Cudd engaged in a continual sexual relationship with his stepdaughter, D.F., from 2006 to 2010. At the time the offenses began, D.F. was twelve years old, under the age of statutory consent in Montana.
¶4 The case against Cudd proceeded to trial on May 21, 2012. Voir dire was conducted by initially asking general questions of the prospective jurors, followed by an opportunity for confidential voir dire of individual jurors. Several jurors, including juror M.R., asked to discuss matters privately in chambers. This colloquy followed between M.R., the District Court, prosecutor David Sibley, and defense counsel Robert Kelleher:
[THE COURT:] And, [M.R.], I probably won’t do a lot of the questioning, I’ll leave that to the attorneys, but if you could just tell me what the nature of your concern is.
[M.R.]: My daughter has been in numerous abusive relationships, and one of those was rape.
THE COURT: So you’ve had a daughter that’s been the subject of some sexual violence; is that correct?
[M.R.]: Yes.
THE COURT: Mr. Sibley.
MR. SIBLEY: [M.R.], do you believe that it would make it impossible for you to judge the evidence fairly and hold the State to its burden that we still must prove each element of the crime beyond a reasonable doubt?
[M.R.]: I would do my best to be fair. That’s all I can say.
MR. SIBLEY: That’s all we’re asking, is just that the purpose of this is to, as the judge said, give you the privacy to make those disclosures without being in the public forum. But that really is the relevant question: Could you judge the evidence fairly and give Mr. Cudd a fair trial in which he’s entitled?
[MR.]: XJli-huh.
MR. SIBLEY: Do you believe you could?
[M.R.]: Yeah.
THE COURT: Anything else, Mr. Sibley?
MR. SIBLEY: Nothing further from the State.
THE COURT: Mr. Kelleher.
MR. KELLEHER: [M.R.], what was the outcome, were any of those people prosecuted?
[M.R.]: One of them was, yes.
MR. KELLEHER: What was the outcome of that?
[M.R.]: He was found guilty.
MR. KELLEHER: Would anything that had to do with that trial — I mean, the question is whether you’re tilting more to toward one side or the other. That’s the issue. And because of that experience whether you would be more in favor of the prosecution as opposed to the defendant.
[M.R.]: Well, in that case, of course, I would be more secured to my daughter.
MR. KELLEHER: I’m sorry. Based on your experience in the case with your daughter, whether in this case today you’d be more tuned into the prosecution or leaningmore toward the prosecution just from the outset?
[M-RJ: To be honest, I’d probably be going towards the victim. You know, looking at their point of view.
MR. KELLEHER: So you’d be more likely to believe the testimony of the alleged victim in this case than you would a defense witness?
[MR.]: I hate to say that, but yes, I probably would.
MR. KELLEHER: I think we need to excuse her for cause, Your Honor.
MR. SIBLEY: Your Honor, may I have the chance to rehabilitate?
THE COURT: You may.
MR. SIBLEY: What were the charges that were filed?
[M.R.]: The one that was found guilty was domestic abuse.
MR. SIBLEY: So that wasn’t a rape case?
[MR.]: No, that was not a rape case.
MR. SIBLEY: As you said, you could judge the credibility of the witnesses and if you would not believe the witness — you would be more inclined if you didn’t believe them — you would still hold the State to the burden.
[MR.]: Yes.
MR. SIBLEY: I believe she’s capable to serve as a juror. I believe she has stated that she can hold the State to its burden of proof and burden and be fair and impartial.
MR. KELLEHER: 111 continue.
THE COURT: All right.
MR. KELLEHER: I request that she removed for cause.
THE COURT: The challenge for cause is denied. [M.R.], I appreciate you coming in.
¶5 The defense subsequently used all of its preemptory challenges, including one to excuse M.R. Cudd was convicted following trial and sentenced to the Montana State Prison. He appeals.
STANDARD OF REVIEW
¶6 “We review a district court’s denial of a challenge for cause using an abuse of discretion standard.” State v. Johnson, 2014 MT 11, ¶ 8, 373 Mont. 330, 317 P.3d 164 (citation omitted). A district court abuses its discretion if it denies a challenge for cause when a prospective juror’s statements during voir dire raise serious doubts about the juror’s ability to be fair and impartial or actual bias is discovered. Johnson, ¶ 8 (citations omitted). If a district court abuses its discretion by denying a legitimate challenge for cause, the error is structural and automatic reversal is required. State v. Good, 2002 MT 59, ¶¶ 62-63, 309 Mont. 113, 43 P.3d 948.
DISCUSSION
¶7 Did the District Court abuse its discretion by denying Cudd’s challenge for cause of a juror whose daughter had been the victim of sexual violence?
¶8 A criminal defendant has a fundamental right to be tried by an impartial jury. State v. Allen, 2010 MT 214, ¶ 25, 357 Mont. 495, 241 P.3d 1045 (citation omitted). To safeguard this right, “[e]ach party may challenge jurors for cause, and each challenge must be tried by the court.” Section 46-16-115(1), MCA. A challenge for cause may be taken when a juror demonstrates “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA. A court must decide a challenge for cause under § 46-16-115(2)(j), MCA, based on the totality of the circumstances presented. State v. Golie, 2006 MT 91, ¶ 8, 332 Mont. 69, 134 P.3d 95. As a general principle, “[a] prospective juror’s ‘spontaneous statements’ are given more weight than ‘coaxed recantations’ elicited by counsel because spontaneous statements are ‘most likely to be reliable and honest.’ ” State v. Jay, 2013 MT 79, ¶ 19, 369 Mont. 332, 298 P.3d 396 (citations omitted).
¶9 Jurors who state that they are unable or unwilling to suspend their prejudicial beliefs and follow the law should be excused for cause. Jay, ¶ 20 (citation omitted). However, “a juror should not be removed merely because she voices a concern about being impartial — every person comes to jury duty with preconceptions.” Jay, ¶ 20; accord State v. Normandy, 2008 MT 437, ¶ 22, 347 Mont. 505, 198 P.3d 834 (“[I]f the prospective juror merely expresses concern about impartiality but believes he can fairly weigh the evidence, the court is not required to remove the juror.”). We have recognized that “[i]n reality, few people are entirely impartial regarding criminal matters ... .” Allen, ¶ 26 (citation omitted). Therefore, the critical inquiry is whether a prospective juror can convincingly affirm his or her ability to lay aside any misgivings and fairly weigh the evidence. See Allen, ¶ 26 (citation omitted). Because district court judges sit in the best position to observe the disposition of prospective jurors, we grant lower courts a certain degree of deference in making this determination. Johnson, ¶ 20 (citations omitted); Allen, ¶ 26 (citations omitted).
¶10 Cudd argues that M.R.’s “state of mind prevented her from acting with entire impartiality.” He maintains that M.R. acknowledged her bias several times: (1) when she stated, “Well, in that case, of course, I would be more secured to my daughter”; (2) when she further stated, “To be honest, I’d probably be going towards the victim. You know, looking at their point of view”; and (3) when asked by defense counsel, “So you’d be more likely to believe the testimony of the alleged victim in this case them you would a defense witness,” she replied, “I hate to say that, but yes, I probably would.” Cudd argues that these statements “raised serious questions about [M.R.’s] ability to be impartial” and “deprived him of the fundamental right to be tried by an impartial jury” when the District Court denied his challenge for cause. He characterizes M.R.’s initial assurances that she could judge the evidence fairly and hold the State to its burden of proof as “attempts to show respect for the judicial process and avoid confrontation with those officers of the court that were peppering her with questions,” and not as evidence of impartiality.
¶11 The State contends that “M.R.’s comments did not establish that she harbored actual bias or that her state of mind prevented her from acting impartially.” It argues that, although M.R. honestly advised the court of her past experiences and perspectives, she at no time indicated she was unwilling to fairly and objectively evaluate the case. The State points to the fact that when directly asked, M.R. clearly affirmed her ability to remain impartial despite her daughter’s experiences. In support of its position, the State analogizes to several cases, including our recent holding in Johnson.
¶12 In Johnson, the State’s case relied heavily on law enforcement testimony to establish that Johnson burglarized a residence. During voir dire, prospective juror Harsell (Harsell) stated that he believed law enforcement officers “to be a very trustworthy bunch” and found “them more believable than the average person.” When asked by defense counsel whether he could take officer testimony with “a grain of salt,” he replied, “I think a grain of salt is way too light. I just tend to find them more believable than the average person.” Johnson, ¶ 5. Harsell then told the court that he could assess the witnesses on a person-by-person basis, regardless of occupation. Johnson, ¶ 6. This Court found it persuasive that, even though Harsell admitted to harboring bias, he assured the district court that he could set aside his prior experiences and evaluate the witnesses fairly. Johnson, ¶¶ 15,19. We affirmed the district court’s determination not to excuse Harsell for cause. Johnson, ¶ 21.
¶13 Similar to the juror in Johnson, M.R. expressed some concerns about impartiality, but also affirmatively stated that she could judge the evidence fairly and give Cudd a fair trial. Notably, M.R.’s seemingly biased statements arose only after defense counsel required her to choose between the prosecution and the defense — between the victim and a defense witness. In State v. Crosley, 2009 MT 126, ¶ 21, 350 Mont. 223, 206 P.3d 932, defense counsel posed a nearly identical choice to potential juror Aronson when he asked, “If it came down to Detective Clarkson saying A and an unknown witness saying B, who are you going to believe?” Aronson responded, “Probably Mr. Clarkson.” On appeal, we reasoned that “[w]hile there was much questioning about Aronson’s ability to fairly weigh testimony from Detective Clarkson against other testimony, this is significantly different than the type of improper state of mind that raises serious doubts about a juror’s ability to be fair and impartial.” Crosley, ¶ 36. We noted that even though Aronson admitted he would give credibility to Detective Clarkson, he also stated he would keep an open mind and look to the facts. We explained that, “[w]hile these answers perhaps lack the conviction that defense counsel would prefer, they do not raise serious doubts about Aronson’s ability to be fair and impartial.” Crosley, ¶ 37.
¶14 Cudd attempts to distinguish precedent cited by the State on the grounds that M.R. “neither retracted nor disavowed her bias” after stating that she would probably favor the testimony of the victim, and that the subsequent rehabilitative questions posed by the State related strictly to the burden of proof and not M.R.’s bias. According to Cudd, “[o]nce [M.R.’s] bias was unveiled, the prosecutor used the burden of proof concept as a red herring instead of addressing the real issue of impartiality.”
¶15 While we recognize the distinction drawn by Cudd on this point, we do not find it determinative. Certainly, some of our cases have involved factual situations where the prospective juror disavowed his or her stated bias during follow-up questioning by the prosecution or the court. However, there is no authority suggesting that a district court is required to grant or deny a challenge for cause strictly based on answers given after a juror’s potential bias is revealed. To the contrary, we evaluate a prospective juror’s responses as a whole. Golie, ¶ 10. In situations where, as here,
“a juror makes conflicting statements ... the decision whether to grant a challenge for cause is within the discretion of the trial judge, who has the ability to look into the eyes of the juror in question, and to consider her responses in the context of the courtroom, and then determine whether serious doubts exist about the juror’s ability to be impartial.”
Crosley, ¶ 35 (citation omitted). M.R. expressly confirmed her ability to judge the evidence fairly and afford Cudd the fair trial to which he was entitled. These views were declared by M.R. in her initial responses. See Jay, ¶ 19 (“A prospective juror’s ‘spontaneous statements’ are given more weight than ‘coaxed recantations’ elicited by counsel....”). We conclude that the District Court did not abuse its discretion in denying the challenge for cause.
¶16 Affirmed.
JUSTICES COTTER, BAKER, WHEAT and McKINNON concur.
We have also explained that “jurors should be disqualified based on their prejudices only where they have ‘form[ed] fixed opinions o[f] the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict based solely on the evidence presented in court.’ ” State v. Falls Down, 2003 MT 300, ¶ 23, 318 Mont. 219, 79 P.3d 797 (citations omitted). The “fixed opinion” principle is only one basis on which prejudice maybe established under § 46-16-115(2)(j), MCA. Johnson, U 10 (citation omitted). Cudd does not argue here that M.R. held a “fixed opinion” of his guilt and, therefore, we do not address this principle.
|
[
-23,
-34,
10,
-2,
-5,
-19,
-37,
14,
-57,
14,
-6,
-5,
3,
20,
-18,
-56,
40,
-12,
34,
-57,
19,
13,
-2,
69,
-6,
-34,
7,
35,
-7,
-6,
20,
-14,
5,
-38,
23,
25,
14,
40,
-8,
-28,
2,
30,
1,
-14,
-10,
13,
11,
0,
3,
24,
11,
-42,
-12,
14,
22,
-26,
33,
44,
-23,
-21,
-6,
-8,
-49,
-30,
15,
-65,
-19,
10,
1,
67,
18,
-17,
-53,
-23,
-5,
-22,
-58,
10,
34,
89,
-7,
24,
5,
18,
3,
-36,
29,
-15,
-45,
30,
24,
-65,
-18,
-12,
15,
36,
58,
-8,
39,
-21,
3,
-23,
10,
-6,
16,
14,
-10,
-17,
60,
7,
3,
-26,
-45,
-15,
-38,
-30,
-29,
42,
-14,
-16,
-24,
61,
-3,
19,
16,
-3,
7,
-10,
38,
-51,
-35,
12,
3,
-52,
26,
-61,
-41,
-47,
31,
4,
22,
0,
42,
49,
27,
15,
-71,
31,
27,
33,
26,
-5,
20,
38,
33,
-21,
-40,
-22,
28,
15,
19,
-5,
-15,
3,
-15,
-13,
11,
-29,
11,
-25,
-11,
63,
-47,
24,
23,
12,
-30,
-15,
11,
10,
-27,
42,
4,
23,
-1,
26,
-34,
-20,
11,
5,
-98,
15,
30,
-37,
65,
28,
69,
39,
28,
34,
26,
-5,
59,
51,
51,
-37,
14,
-50,
22,
-25,
17,
-16,
9,
-9,
15,
-47,
2,
-29,
-42,
-10,
-7,
1,
0,
-51,
-57,
-14,
6,
33,
-19,
-13,
5,
33,
-25,
-15,
-6,
-32,
-7,
-35,
9,
0,
-39,
-27,
15,
-57,
10,
1,
-26,
-3,
-17,
-3,
14,
-8,
50,
32,
-33,
-12,
32,
-49,
-30,
-43,
-8,
-47,
29,
26,
14,
40,
6,
22,
-31,
-28,
39,
-30,
1,
-9,
-25,
-11,
-34,
18,
-20,
18,
29,
-18,
13,
39,
-45,
-13,
-15,
28,
0,
-9,
17,
-22,
-15,
-15,
73,
-17,
9,
23,
12,
-12,
1,
17,
-12,
7,
40,
-20,
0,
-4,
-11,
12,
33,
2,
10,
-7,
10,
15,
-15,
8,
33,
-3,
-64,
-58,
-2,
-70,
-46,
-32,
3,
-35,
-20,
51,
-56,
36,
4,
-1,
6,
-12,
23,
-25,
6,
-23,
7,
-16,
-4,
-26,
-45,
-1,
2,
15,
21,
2,
-35,
-39,
34,
-40,
-39,
-1,
-45,
-26,
28,
-61,
0,
-24,
-34,
-7,
21,
11,
51,
-5,
-17,
24,
-40,
-81,
9,
28,
47,
-57,
29,
-6,
32,
25,
-9,
-14,
11,
25,
22,
56,
1,
-36,
31,
16,
5,
0,
1,
-15,
-10,
-16,
17,
-7,
31,
-34,
-5,
-23,
58,
10,
-6,
-8,
-3,
43,
-10,
-43,
2,
7,
21,
8,
68,
22,
-82,
-27,
-3,
26,
-14,
11,
6,
-24,
42,
-9,
1,
22,
60,
-57,
6,
6,
-43,
-5,
19,
3,
8,
43,
24,
17,
19,
9,
25,
-5,
-7,
-13,
8,
34,
21,
0,
12,
-12,
30,
-47,
10,
31,
22,
-2,
-28,
-45,
-5,
1,
-17,
-13,
35,
29,
-45,
-7,
-4,
27,
12,
41,
-23,
34,
21,
30,
-6,
6,
41,
-49,
19,
0,
-29,
6,
4,
10,
-20,
-33,
55,
2,
-1,
0,
-24,
-9,
-28,
45,
9,
31,
11,
-16,
35,
-12,
-86,
28,
17,
-28,
0,
60,
-32,
-35,
52,
53,
-16,
-65,
-34,
0,
28,
-42,
6,
-24,
14,
22,
46,
6,
-18,
-33,
-31,
-17,
5,
-43,
17,
0,
-21,
-2,
55,
35,
-28,
-54,
15,
-11,
16,
-24,
19,
-25,
5,
-36,
24,
-6,
38,
64,
39,
11,
16,
-31,
31,
45,
24,
-8,
-46,
-42,
-16,
30,
40,
-1,
-15,
-69,
-36,
0,
55,
-39,
31,
-2,
-20,
3,
16,
-11,
-26,
34,
-11,
42,
56,
18,
32,
22,
-122,
-29,
3,
-38,
3,
-18,
24,
-13,
-23,
8,
-15,
-32,
-47,
-4,
-70,
-24,
-13,
45,
0,
35,
64,
36,
8,
-12,
-30,
-30,
-5,
40,
68,
-16,
48,
14,
-33,
-27,
-1,
-20,
-56,
-15,
-40,
-39,
-15,
-38,
-76,
-38,
51,
12,
-44,
-17,
2,
49,
14,
31,
8,
8,
-9,
-16,
25,
57,
0,
-26,
73,
18,
29,
23,
0,
-54,
1,
-5,
41,
-27,
-9,
-10,
12,
9,
46,
25,
41,
2,
-27,
11,
-51,
21,
8,
61,
-18,
24,
-3,
-11,
-4,
8,
47,
-17,
16,
0,
26,
23,
-15,
-45,
8,
-45,
34,
30,
-4,
30,
-14,
-18,
-10,
-9,
-5,
-13,
-24,
-16,
-12,
1,
-55,
-9,
-27,
52,
11,
-1,
6,
35,
-18,
-46,
-21,
20,
20,
58,
-33,
39,
-28,
-39,
-43,
-58,
-80,
7,
-46,
17,
0,
20,
-16,
-18,
17,
62,
-6,
11,
22,
-37,
60,
59,
11,
50,
-20,
36,
76,
-6,
-59,
-6,
-15,
-27,
-28,
44,
28,
-4,
-17,
4,
25,
-15,
1,
13,
-31,
-1,
52,
-11,
-30,
-60,
22,
26,
24,
-43,
-37,
9,
18,
32,
15,
7,
23,
-45,
43,
-17,
-43,
-40,
56,
29,
45,
-26,
18,
43,
-35,
-25,
0,
-13,
23,
-45,
27,
59,
15,
26,
-48,
23,
42,
19,
-1,
-44,
-1,
65,
-29,
-2,
-3,
-29,
0,
0,
-3,
-11,
26,
36,
-1,
19,
9,
38,
16,
-36,
-11,
-49,
25,
-48,
74,
-9,
-29,
-24,
28,
-2,
53,
20,
17,
-78,
11,
-19,
4,
27,
-19,
-17,
-6,
38,
13,
78,
15,
46,
4,
-23,
64,
-7,
42,
-7,
42,
22,
32,
-11,
-12,
-47,
28,
-25,
-34,
27,
-24,
10,
-27,
32,
-39,
5,
-5,
3,
76,
-38,
12,
16,
-53,
-8,
67,
13,
-51,
0,
28,
24,
-68,
41,
56,
-9,
-8,
-31,
48,
5,
-24,
-68,
-3,
-46,
-21,
0,
27,
-16,
-11,
12,
-13,
37,
3,
-58,
-21,
30,
-28,
-1,
64,
-32,
0,
26,
-3,
-14,
-4,
13,
50,
22,
13,
6,
-34,
16,
26,
-14,
-27,
26,
49,
78,
-11,
-46,
-78,
-72,
-72,
71,
19,
23,
-57,
-69,
-44,
14,
-9,
-7,
5,
30,
39,
-36,
-15,
-19,
-4,
1,
-81,
-67,
-6,
-1,
34,
6,
-27,
26,
31,
10,
9,
24,
-24,
40,
-37,
31,
-16,
4,
-35,
-28,
15,
28,
0,
46,
41,
0,
-9,
9,
-31,
-5,
42,
19,
0,
-46,
-48,
10,
-33,
-23,
0,
26,
-64,
-11,
-29,
-17,
16,
26,
-35,
-10,
-19,
-19,
35,
-41,
16,
-45,
-21,
49,
-38,
-2,
-29,
17,
-26,
-20,
-3,
6,
14,
8,
-9,
-36,
20,
-17,
15,
1,
33,
25,
-55,
23,
65,
8
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Troy McGarvey (McGarvey) appeals the District Court’s denial of his petition for postconviction relief (PCR).
¶2 The following issues are presented for review:
¶3 Did the District Court err in concluding that the State had not failed to disclose relevant exculpatory and impeachment evidence?
¶4 Did the District Court err in concluding that McGarvey had not received ineffective assistance of counsel?
¶5 Is McGarvey entitled to a new trial under the cumulative error doctrine?
¶6 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶7 The State charged McGarvey with two counts of Deliberate Homicide for the deaths of Clifford Grant (Grant) and Norman Nelson (Nelson). The jury convicted McGarvey on both counts after a three-day trial in November2003. McGarvey appealed that conviction to this Court and we affirmed in State v. McGarvey, 2005 MT 308, 329 Mont. 439, 124 P.3d 1131. McGarvey filed a PCR petition in the District Court alleging that the State had failed to disclose exculpatory and impeachment evidence relevant to the case and also that his trial attorneys had rendered ineffective assistance of counsel (IAC). The District Court held a hearing on April 25 and 26, 2011, and denied McGarvey’s PCR petition. McGarvey now appeals.
¶8 At trial, the State relied heavily on the testimony of Robert Armstrong (Armstrong) and Stan Edwardson (Edwardson), who both testified that McGarvey had told them that he shot Grant and Nelson. McGarvey’s PCR petition alleges that the State withheld impeachment evidence relating to Armstrong and Edwardson and that his attorneys, Gregory Jackson (Jackson) and Don Vemay (Vemay) failed to adequately impeach either witness on cross-examination.
¶9 In 2003, prior to McGarvey’s trial for homicide, Armstrong had pled guilty to felony theft. Susan Fox (Fox), Armstrong’s mother, appeared at his sentencing for that crime and testified that she believed Armstrong suffered from forgetfulness and was easily overcome by stress as a result of electrocution. Although the State provided a transcript of Armstrong’s change of plea hearing to McGarvey’s defense, the State did not provide the defense with the transcript of Armstrong’s sentencing hearing, or the letter written by Fox. Armstrong also kept extensive notes while he was in prison. Among those notes was a stream-of-consciousness list beginning with the phrase “Admit to Schizo” and listing a handful of mental health issues associated with schizophrenia. All of Armstrong’s notes were provided to the defense, but the State indicated to the defense that it did not believe the evidence was relevant for the purposes of the trial. At trial, the defense cross-examined Armstrong and impeached his credibility by establishing that he was receiving leniency on other criminal charges in exchange for his testimony and by establishing that he had lied in a prior court appearance. Armstrong and Fox also testified at the trial that Fox had made the initial tip to Crime Stoppers after Armstrong told her about McGarvey’s confession.
¶10 In January 2002, Edwardson had twice told investigators that McGarvey did not confess to him. Edwardson then visited Rod Monroe (Monroe), who had been incarcerated on drug charges. After visiting Monroe, Edwardson told investigators that McGarvey had confessed to him while Monroe was present. Monroe and Edwardson were later charged in a scheme to produce methamphetamine in August 2003. At McGarvey’s trial, Edwardson testified that only Armstrong and himself were present for McGarvey’s confession. Defense counsel cross-examined Edwardson and impeached his credibility by establishing that he had changed his statements to law enforcement and that he owed McGarvey money.
¶11 Finally, the defense presented a theory at trial that the murders had been committed by Saul “Tony” Sanchez (Sanchez) and/or other members of the “Mexican Mafia” because of a dispute stemming from the victims’ production of methamphetamine. The defense presented evidence indicating that Sanchez was a drug dealer and that he was armed. The defense also established that Sanchez possessed a Toyota Célica, which had been identified as the same make as the vehicle driven by the killer. Sanchez testified that Grant owed him money and that he had called Grant around the time of the murders. Finally, the defense theorized that multiple shooters had been present at the scene of the crime, one of whom was firing a 9 mm, and established that Sanchez owned a weapon of that caliber.
¶ 12 McGarvey’s PCR petition raised evidence relating to Sanchez that had not been presented at trial. In February 2002, Mary Leptich (Leptich) was interviewed by Lake County detectives regarding her involvement with methamphetamine distribution and Sanchez. Leptich told detectives that Sanchez had been involved in methamphetamine distribution and was well armed. Leptich also indicated that she believed Sanchez to be responsible for an assault on another drug dealer. Flathead County investigators involved with McGarvey’s trial were apparently unaware of these interviews and did not disclose the interviews to defense counsel. Leptich was again interviewed in 2006, this time by an investigator hired by McGarvey. Leptich told this investigator that she believed Sanchez had murdered Grant because he had once told her that “what happened to Grant could happen to other people.” Additionally, the mother of Sanchez’s child, Aim Marie Matts, had filed a report with St. Ignatius police that Sanchez had threatened to kill her. The defense was unaware of this report, as was the State.
¶13 Finally, McGarvey’s PCR petition relied substantially on the testimony of two inmates who had obtained information about the crime. Joseph Buck (Buck) shared a cell block with Armstrong and then McGarvey before the trial. Armstrong told Buck that McGarvey had found dead bodies at the crime scene and that Armstrong himself had gone to the crime scene to see. Buck then relayed this discussion to McGarvey while he awaited trial. McGarvey did not share this information with his counsel. Kenneth Gifford (Gifford) testified that a Mexican-American man had told him about Grant’s murder and the murder had resulted from a drug debt. Gene Hulford (Hulford) had seen an older Hispanic man waiting outside of Grant’s property three or four weeks before the homicides. This evidence was presented at the PCR hearing.
STANDARD OF REVIEW
¶14 We review a district court’s denial of a PCR petition for post-conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407. We review discretionary rulings in PCR proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, 74 P.3d 1047. We review de novo the mixed questions of law and fact presented by claims of ineffective assistance of counsel. Weaver v. State, 2005 MT 158, ¶ 13, 327 Mont. 441, 114 P.3d 1039. A petitioner seeking to reverse a district court order denying PCR based on ineffective assistance of counsel bears a heavy burden. Sartain, ¶ 9 (citing Morgan, ¶ 9).
DISCUSSION
¶15 Did the District Court err in concluding that the State had not failed to disclose relevant exculpatory and impeachment evidence?
¶16 In all criminal cases the prosecution has a long-established duty to provide to the defense any exculpatory or impeachment evidence in its possession. State v. Ellison, 2012 MT 50, ¶ 15, 364 Mont. 276, 272 P.3d 646 (discussing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)); State v. Cooksey, 2012 MT 226, ¶ 34, 366 Mont. 346, 286 P.3d 1174. A party seeking to establish a Brady violation must establish that:
(1) the State possessed evidence, including impeachment evidence, favorable to the defense; (2) the petitioner did not possess the evidence nor could he have obtained it with reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different.
Gollehon v. State, 1999 MT 210, ¶ 15, 296 Mont. 6, 986 P.2d 395. See also State v. St. Dennis, 2010 MT 229, ¶ 47, 358 Mont. 88, 244 P.3d 292 (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999)). In examining whether the State possessed and suppressed evidence, “[t]he prosecutor’s obligation of disclosure extends to material and information in the possession or control of members of the prosecutor’s staff and of any other persons who have participated in the investigation or evaluation of the case.” Section 46-15-322(4), MCA. Although investigators cannot hamper the accused’s right to obtain exculpatory evidence, police officers are not required to take initiative or assist the defendant with procuring evidence on his own behalf. State v. Seiffert, 2010 MT 169, ¶ 15, 357 Mont. 188, 237 P.3d 669 (citing State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, 962 P.2d 571). As a general rule, the State’s obligation to disclose information under Brady does not impose a duty on the prosecutor or investigators to learn of information possessed by other jurisdictions or agencies that have no involvement in the investigation or prosecution at issue. U.S. v. Morris, 80 F.3d 1151, 1169-70 (7th Cir. 1996).
¶17 As to the second element, no Brady violation exists where both parties are aware of the existence of specific evidence and defense counsel could uncover the evidence with reasonable diligence. State v. Parrish, 2010 MT 212, ¶ 18, 357 Mont. 477, 241 P.3d 1041 (discussing State v. James, 2010 MT 175, ¶¶ 30-36, 357 Mont. 193, 237 P.3d 672). “In James, we concluded that since counsel for the defendant was generally familiar with booking procedures, counsel was constructively aware that a booking photo was probably in existence.” Parrish, ¶ 18. Next, if the State has suppressed evidence, only a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process under Brady. Belgarde, ¶ 16 (discussing State v. Heth, 230 Mont. 268, 272, 750 P.2d 103, 105 (1988)). “Negligently suppressed evidence only amounts to a violation of due process when it is material and of substantial use, vital to the defense, and exculpatory.” State v. Gollehon, 262 Mont. 1, 13, 864 P.2d 249, 257 (1993). Regarding the final element, “reasonable probability” that the outcome would have been different is a question of whether such information could “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kills on Top v. State, 2000 MT 340, ¶ 33, 303 Mont. 164, 15 P.3d 422 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566 (1995)). The materiality of excluded evidence is considered collectively, not item by item. Kyles, 514 U.S. at 436, 115 S. Ct. at 1567.
¶18 McGarvey argues that the State failed to provide the defense with information concerning Armstrong’s mental health such as the transcripts of the sentencing hearing, the contents of Armstrong’s prison notes, and Fox’s testimony concerning Armstrong’s mental health. However, both parties were put on notice that this evidence existed and the defense could have discovered the evidence with reasonable diligence. The State provided the prison notes to the defense but indicated that they did not find them relevant. Although the notes may have been relevant to Armstrong’s credibility, both parties were aware of the evidence and could have ascertained its relevance with reasonable diligence. The defense was put on constructive notice of the existence of Armstrong’s sentencing transcripts and could have discovered Fox’s testimony therein. The State had provided transcripts of Armstrong’s change of plea hearing, a procedure that generally leads to a sentencing hearing flush with evidence of a person’s character and prior crimes. Counsel for McGarvey knew that Armstrong had been indicted for a crime and had pled guilty to it and, therefore, had constructive notice that the sentencing transcripts existed.
¶19 Even if the prosecution had blinded the defense to this evidence, however, the evidence was wholly contrary to the defense’s strategy. The defense painted Armstrong as a liar in pursuit of money and leniency by establishing that Armstrong had lied in a previous court appearance; that he was motivated to he because he sought leniency on other charges; that he had attempted to use his testimony to extort money from McGarvey; that he wanted to receive a Crime Stoppers award; and that he had waited months before reporting McGarvey’s confession to law enforcement. The evidence at issue would have presented Armstrong in a very different light as forgetful, irrational, delusional, and unable to handle even minor stress. Defense counsel feared that highlighting these attributes would have been confusing to the jury and could have contradicted the theory that Armstrong was intentionally lying to obtain benefits. Thus, the evidence here did not have a reasonable probability of influencing the outcome because the evidence would have bolstered a theoiy that the defense strategically chose to avoid. The District Court correctly concluded that the evidence at issue did not have a reasonable probability of creating a different outcome or undermining confidence in the verdict.
¶20 McGarvey next argues that the State failed to disclose impeachment evidence concerning Edwardson’s relationship with Monroe in a scheme to produce methamphetamine. McGarvey theorizes that Monroe and Edwardson could have been producing methamphetamine before January 2002, and because Monroe was in prison while Edwardson was not, Monroe could have used their common crime to coerce Edwardson into fabricating the story of McGarvey’s confession so that Monroe could then use the information to barter a reduction of his sentence. At the PCR hearing, the District Court found that Edwardson had not been involved with Monroe in producing methamphetamine until after Edwardson had come forward to the police about McGarvey’s confession, and therefore, the criminal scheme was irrelevant to the case. That conclusion was supported by substantial evidence. Edwardson and Monroe were indicted for methamphetamine production occurring in July 2002. The investigation surrounding those offenses revealed that Edwardson’s girlfriend had purchased materials for the methamphetamine operation in the spring of 2002, in preparation for Monroe’s release from prison. All of this occurred well after Edwardson had informed the police of McGarvey’s confession in January 2002. Critically, McGarvey points to no evidence showing that Monroe and Edwardson were producing methamphetamine together before Edwardson informed police of McGarvey’s confession. Unsupported allegations and conclusions are not a basis for granting postconviction relief. State v. Finley, 2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132. Therefore, the District Court properly denied McGarvey’s PCR petition as it relied on speculation and unsupported allegations concerning Monroe and Edwardson.
¶21 Next, McGarvey argues that the State withheld relevant evidence concerning Sanchez and the murders, namely, the Leptich interview and the Matts police report. The District Court concluded that, at the time of the trial, the State was unaware of the information provided by either Leptich or Matts and, at any rate, the information provided by those interviews had little relevance to the trial. That conclusion is well founded. First, Leptich’s beliefs about Sanchez were just that: beliefs, unsupported by any evidence. Leptich told investigators that she had a “gut feeling” that Sanchez had been involved in the murders. Her feeling was supplemented by Sanchez’s vague statement to her that “what happened to Grant could happen to other people.” Affidavits filed by investigating officers noted that Leptich had no personal knowledge of any connection between the murders and Sanchez. Leptich’s statements were likely inadmissible and useless on their own, but they were especially lacking in value considering the swath of other evidence that the defense employed to bolster its theory about Sanchez. The defense presented evidence that Sanchez owned a car identified as the killer’s car; that he had been at the scene of the crime on the day of the crime to deliver drugs; that he was armed; that Grant had owed him money; that he had called Grant the day of the homicides; and that Sanchez had lied to investigating officers. In this context, Leptich’s intuition about Sanchez would have only added speculation to hard evidence. The District Court correctly concluded that, in light of the evidence, Leptich’s intuition would not have had any effect on the outcome of the trial. The same is true of the Matts report, which would have demonstrated that Sanchez had a propensity for violence and was selling drugs; that character trait was thoroughly established by other evidence at trial. We agree with the District Court that this information was irrelevant to the trial and had no effect on the outcome.
¶22 The District Court also correctly concluded that the Matts and Leptich evidence had not been intentionally suppressed by the State. McGarvey made no showing at the PCR hearing that the State knew of, or had reason to know of, the Leptich or Matts reports prior to trial. Neither Flathead County nor the investigating officers were aware of Matts report to police, and they were not obligated to discover and disclose evidence obtained by another uninvolved jurisdiction. Morris, 80 F.3d at 1169. The affidavits and evidence presented at the PCR hearing demonstrated that the State and its investigators found no relevant information in the Leptich interview or the Matts report. Further, only a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process under Brady. Belgarde, ¶ 16 (citing Heth, 230 Mont. at 272, 750 P.2d at 105). Otherwise, the negligent suppression of evidence only amounts to a Brady violation when it is “material and of substantial use, vital to the defense, and exculpatory.” Gollehon, 262 Mont. at 13, 864 P.2d at 257. As discussed above, the evidence at issue here had very little value to the defense because it was inadmissible, speculative, and only served to attack Sanchez’s character. Finally, McGarvey claims that investigators should have pursued more information on Sanchez by following the leads provided by Matts and Leptich. However, “police officers are not required to take initiative or even assist the defendant with procuring evidence on his own behalf.” Seiffert, ¶ 15 (citing Belgarde, ¶ 16). The officers here had no duty to seek more information from Matts or Leptich, and such a pursuit would have been based on speculation rather than hard evidence. McGarvey’s PCR petition did not fulfill the elements of a Brady violation, and was properly denied.
¶23 Did the District Court err in concluding that McGarvey had not received ineffective assistance of counsel?
¶24 We employ the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), to determine whether a criminal defendant has received ineffective assistance of counsel. State v. Miner, 2012 MT 20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Under this test, the defendant must demonstrate (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defendant. Miner, ¶ 11. IAC claims must be grounded on facts in the record and not on mere conclusory allegations. Finley, ¶ 9. If an insufficient showing is made regarding one prong of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, 10 P.3d 49.
¶25 Under Strickland’s first prong, we examine whether counsel’s conduct fell below an objective standard of reasonableness considering prevailing professional norms, and in the context of all circumstances. Whitlow v. State, 2008 MT 140, ¶ 14, 343 Mont. 90, 183 P.3d 861. Counsel’s conduct is strongly presumed to be within professional norms, and a plaintiff must “‘identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.’ ” Whitlow, ¶ 16 (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). We then examine these acts or omissions in light of all circumstances to determine whether counsel’s performance falls below the standard of reasonable professional conduct. Whitlow, ¶ 16. Counsel’s decisions related to presenting the case, including whether to introduce evidence or produce witnesses, generally constitute a matter of trial tactics and strategy, and we will not find ineffective assistance of counsel in such tactics. Weaver, ¶ 25.
¶26 Under Strickland’s second prong, we examine whether there is a reasonable probability that counsel's lack of reasonable professional conduct renders the trial result unreliable or the proceedings fundamentally unfair. Miner, ¶ 12. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
A. Examination ofEdwardson, Armstrong, and Fox
¶27 McGarvey alleges that his counsel was ineffective for failing to cross-examine Armstrong about who was present when McGarvey confessed. Armstrong had changed his story concerning whether McGarvey’s wife, Gena, was present for the confession. Additionally, Armstrong’s account of the individuals present did not match Edwardson’s account. McGarvey’s counsel testified at the PCR hearing that the attorneys in the case were aware of Armstrong’s inconsistencies. The attorneys decided that questioning Armstrong on this topic ran the risk of revealing that Gena was present for the confession. The defense had taken considerable efforts to protect Gena from testifying because “frankly, we didn’t feel that Gena could have withstood cross-examination.” The defense sought to exclude Gena’s statement, “holy s[***], he really did it,” and felt that she was otherwise unconvincing on the stand. The defense discussed the decision with McGarvey and Gena before deciding to exclude any mention of Gena in the trial. As a result, the defense avoided questioning Armstrong on inconsistencies in his statement because it could raise a discussion of whether Gena was present for the confession. The decision to forego questioning Armstrong on this inconsistency was plainly a strategic decision, tailored to prevent raising a slew of questions in the jurors’ minds as to whether Gena was present for the confession, why she did not testify, and what she had said about the confession. That strategic move was reasonable under the circumstances of the case to prevent introducing Gena into the trial.
¶28 McGarvey also complains that his counsel failed to impeach Armstrong on the grounds that the details of the homicides were easily ascertained by reading newspaper articles. At the PCR hearing, Jackson explained that, while Armstrong’s details were not confirmed by physical evidence, he knew specific details that were later confirmed by the investigation. For instance, Armstrong testified that McGarvey confessed to shooting Grant in the head while Grant was laying down after a struggle over the gun — details that were not included in the newspapers. Jackson noted that the coroner’s report showed that Grant suffered gunshot wounds at close range and after a fight, confirming Armstrong’s account of McGarvey’s confession. Armstrong also testified that McGarvey confessed to shooting Nelson because he believed that Nelson was running to retrieve his shotgun, as Nelson had a habit of carrying around a shotgun with a flashlight taped to it. Nelson’s reputation for carrying this weapon was later confirmed by investigators as was the fact that Nelson was shot from a greater distance than Grant. In this context, McGarvey’s counsel could have attempted to impeach Armstrong, but risked pinpointing specific details that could cement Armstrong’s credibility and hamstring the defense’s narrative that he was a liar. The defense made a reasonable strategic decision in foregoing examination of Armstrong on newspaper articles and the details of the confession.
¶29 Next, McGarvey alleges that his counsel should have questioned Fox concerning her motives for making the Crime Stoppers call. McGarvey argues that Fox shifted her reason for making the call, first asserting that she and Armstrong agreed that she would make the call because Armstrong was too upset after hearing the confession, but then also stating that she made the call without Armstrong’s knowledge in order to protect him from being implicated in the investigation at all. The District Court found that the defense acted reasonably in deciding that these inconsistencies were “of little or no significance.” We agree. The reasons that Fox gave for making the call are not mutually exclusive; she could have tried to shield her son from involvement in the homicides and also thought that he was too upset to make the call. Under either reason that Fox gave for making the call, there is a consistent narrative that she was trying to protect her son from being implicated in the investigation. Concerning whether Armstrong knew that Fox made the call, that inconsistency also fits into Fox’s testimony that she wanted to shield her son from investigation or from criminal charges for failing to immediately relay the confession to police. The defense properly considered these discrepancies and concluded that they made no contribution to the trial strategy. Rather, the defense attacked Fox’s credibility by showing that Fox had lied about being the tipster, that she had intentionally given misleading information in the tip, and that she had wanted to prevent police from investigating Armstrong. In this context, questioning Fox on a minor inconsistency would contribute little to the case.
¶30 McGarvey next points out that the defense failed to question Edwardson concerning his inconsistent statements, especially his shifting story concerning whether Monroe was present for the confession. Specifically, McGarvey contends that his counsel should have examined Edwardson on whether Monroe had colluded with, or coerced, Edwardson into fabricating the entire story of McGarve/s confession. On cross-examination counsel established that Monroe had asked Edwardson to say that he was present for the confession. Counsel also established that Edwardson had lied, had consistently tried to mislead law enforcement, and was on bad terms with McGarvey over financial issues. Finally, no evidence supported the theory that Monroe and Edwardson had colluded to fabricate the confession or that Monroe had coerced Edwardson into fabricating the confession. It is well within the norms of reasonable professional conduct for counsel to limit their cross-examination to the facts of the case rather than resorting to speculation unsupported by evidence. McGarve^s counsel was entirely reasonable for declining to pursue this theory and instead seeking to impeach Edwardson based on established facts.
B. Expert Witness
¶31 McGarvey also takes issue with the decision not to hire a forensic expert to examine the bodies of Grant and Nelson. McGarvey argues that such a witness could have established that multiple shooters were present based on the nature of the gunshot wounds and the presence of knife damage on Grant’s face. The defense concluded that an expert witness was not needed because they felt they could establish that two shooters were present by cross-examining the State’s witnesses. At the PCR hearing, expert witness Kay Sweeny testified for the defense. She said that Grant’s face showed signs of being cut with a knife in addition to being shot. Dr. Gary Dale, the coroner who had originally examined the bodies, explained that the signs of cutting were easily explained by the presence of several dogs on the property. Dr. Dale presented pictures of other bodies that had been ravaged by dogs and compared those marks to those found on Grant. Based on this comparison, Dr. Dale concluded that a knife could have been present, but the marks and tears were more consistent with a dog bite. Based on this testimony, the District Court concluded that Sweeny’s conclusions were not credible and that the defense had properly declined to involve an expert. That conclusion is well supported. The defense was able to establish a theory that multiple shooters had committed the crime by examining Dr. Dale and raising questions about the weapon used and the distance from which the weapon was fired. The inclusion of another expert would have only reiterated the ambiguity that Dr. Dale expressed in his testimony. Further, Dr. Dale could have easily discredited any theory involving a knife, as he did in the PCR hearing. Presenting such a questionable theory could have damaged the credibility of the defense and bolstered Dr. Dale’s credibility. The defense made a reasonable strategic decision in declining to hire an expert witness on these grounds.
C. Other Witnesses
¶32 McGarvey’s PCR petition also relied heavily on the defense’s failure to discover the testimony of Buck, Gifford, and Hulford. Buck’s testimony confirmed the fact that Armstrong had heard about the homicides from McGarvey, a fact that the defense sought to disprove. The District Court concluded that the testimony of Gifford and Hulford was plain hearsay and would not have been admitted at trial. This conclusion is correct. Both Hulford and Gifford would have testified as to what different persons had said to them about Grant. Even if counsel was deficient for failing to obtain this testimony, the inadmissibility of that testimony means that it could not have had an effect on the trial and, therefore, that McGarvey suffered no prejudice as a result of its absence.
¶33 McGarvey also alleges ineffective assistance because the defense did not call for testimony from Gena or from Kelsey Nichols (Nichols), McGarvey’s step-son. Counsel discussed the decision not to call Gena with the McGarveys before concluding that Gena’s testimony would be harmful to the defense. Nichols, who was thirteen at the time, had warrants out for his arrest and refused to return to the jurisdiction in order to testify. Counsel determined that Nichols’ testimony had little value because he could only testify to the fact that he had not heard any confession. When Nichols did testify at the PCR hearing, he stated that he did not remember hearing any confession from McGarvey, confirming his attorneys’ suspicion that Nichols’ testimony would have had no value at trial. Accordingly, counsel’s decision to forego calling Gena or Nichols was a reasonable trial tactic to preserve the credibility of the defense and weed out unnecessary or confusing testimony.
¶34 As a final matter, McGarvey argues that his counsel should have conducted a reasonable investigation into the evidence that the State failed to disclose. As we concluded above, none of this evidence would have produced a different outcome at the trial. Each piece of evidence was dubiously relevant and served to impeach witnesses who had already been thoroughly impeached. Therefore, even if we assumed that counsel did not exercise reasonable professional conduct, that failure did not prejudice the defendant because it does not raise a reasonable probability that the outcome would have been different had the evidence been discovered.
¶35 Is McGarvey entitled to a new trial under the cumulative error doctrine?
¶36 McGarvey invokes the cumulative error doctrine to argue that, if any one of these errors would not have changed the outcome of the trial, the sum of all the alleged errors could have added up to sufficient prejudice. “The doctrine of cumulative error requires reversal of a conviction where a number of errors, taken together, prejudiced a defendant’s right to a fair trial.” State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463. The existence of prejudice, however, must be established by the defendant, as mere allegations of error without proof of prejudice are inadequate to satisfy the doctrine. State v. Larson, 2004 MT 345, ¶ 65, 324 Mont. 310, 103 P.3d 524 (quoting State v. Campbell, 241 Mont. 323, 329, 787 P.2d 329, 333 (1990)). As discussed above, McGarvey failed to adequately establish some degree of prejudice from any of the individual errors; he cannot claim to have established prejudice from the sum of the errors. We see no reason to reverse this case under the cumulative error doctrine.
CONCLUSION
¶37 The District Corut’s findings of fact were supported by substantial evidence and its conclusions of law are correct. The court properly denied McGarvey’s PCR petition. We affirm.
CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and BAKER concur.
|
[
58,
-2,
-9,
9,
7,
-4,
-53,
-23,
-28,
2,
-30,
-94,
11,
-20,
-5,
-3,
8,
-13,
83,
-50,
34,
-31,
67,
-8,
-78,
-44,
-49,
-10,
-25,
-40,
45,
-51,
4,
-47,
29,
13,
56,
42,
-29,
15,
4,
-5,
-71,
-25,
-15,
27,
-38,
19,
3,
18,
-10,
-35,
13,
0,
-5,
-32,
1,
32,
-13,
17,
60,
37,
-17,
-93,
-33,
-48,
33,
-10,
-7,
19,
3,
-34,
-15,
5,
44,
-25,
-10,
-48,
-15,
-22,
-44,
38,
20,
-8,
45,
-48,
-32,
-51,
-15,
112,
-25,
-31,
14,
-28,
12,
29,
49,
-58,
12,
12,
-14,
-12,
-27,
-48,
1,
1,
30,
-20,
34,
30,
5,
19,
13,
67,
-3,
-50,
-4,
-32,
-44,
15,
-43,
28,
-29,
10,
24,
-8,
20,
13,
39,
0,
-22,
42,
26,
-46,
32,
-25,
-16,
-21,
-53,
54,
-52,
-35,
4,
-21,
34,
46,
-26,
9,
53,
10,
-4,
29,
-45,
-20,
13,
-51,
7,
-5,
-15,
58,
29,
1,
-3,
-5,
13,
11,
-67,
8,
-57,
-28,
25,
-16,
28,
-7,
25,
-51,
-53,
-6,
12,
-9,
1,
12,
46,
-33,
-15,
63,
13,
2,
15,
-90,
-56,
-1,
-37,
-98,
40,
0,
-19,
-21,
52,
24,
-25,
20,
21,
6,
27,
-11,
-10,
-31,
31,
5,
12,
-68,
-19,
9,
-6,
-10,
8,
-46,
-10,
16,
-24,
-8,
48,
-9,
20,
8,
3,
43,
-33,
-18,
10,
49,
0,
-25,
-6,
6,
-10,
-34,
20,
-10,
-24,
-18,
17,
-17,
3,
26,
-8,
-4,
-8,
4,
17,
6,
5,
0,
-1,
12,
42,
-12,
-3,
-11,
66,
-2,
-39,
14,
-41,
75,
-30,
36,
11,
16,
32,
-60,
20,
12,
33,
-6,
-16,
47,
26,
16,
35,
45,
56,
-30,
-4,
-4,
4,
26,
33,
-34,
3,
-86,
-37,
19,
35,
-14,
52,
-1,
0,
16,
68,
49,
-16,
-11,
26,
-33,
33,
-1,
-42,
10,
47,
74,
-29,
32,
-32,
36,
-8,
-10,
68,
-35,
-107,
-44,
-26,
-89,
35,
-31,
-19,
-18,
-34,
-34,
2,
38,
0,
-22,
-52,
-30,
-3,
49,
61,
-22,
-21,
-22,
-17,
-23,
-29,
10,
-37,
24,
-11,
8,
18,
20,
-18,
-46,
-39,
-54,
6,
21,
69,
-53,
-1,
-51,
-9,
-16,
-54,
-23,
0,
-14,
-45,
12,
-51,
-9,
-59,
-18,
-40,
-7,
37,
14,
-5,
-9,
-9,
22,
19,
-40,
-13,
48,
3,
60,
3,
26,
42,
-67,
-50,
-35,
-33,
36,
-7,
33,
16,
-4,
2,
17,
5,
-38,
-24,
23,
-44,
0,
52,
-18,
27,
-19,
49,
58,
-29,
-44,
-78,
-18,
-37,
9,
-19,
32,
-18,
7,
3,
51,
0,
47,
-3,
-19,
10,
-4,
0,
-22,
15,
55,
-19,
-18,
29,
11,
-43,
27,
32,
-9,
-27,
6,
-22,
19,
-4,
77,
-38,
10,
8,
-43,
-64,
46,
12,
-53,
38,
10,
11,
-57,
-19,
19,
20,
32,
-80,
-5,
-17,
-1,
58,
-7,
8,
-4,
13,
31,
43,
23,
52,
76,
9,
-25,
-18,
-28,
-46,
19,
-19,
-10,
-28,
-35,
-27,
16,
32,
11,
-38,
55,
50,
33,
40,
-20,
16,
-39,
-72,
-6,
-21,
-34,
50,
-41,
10,
-3,
66,
48,
-48,
-2,
-23,
14,
38,
-25,
-9,
-53,
39,
-29,
14,
61,
-27,
-25,
-3,
3,
-18,
-10,
23,
-49,
-12,
6,
31,
26,
0,
3,
61,
-7,
22,
5,
-1,
49,
-35,
-10,
19,
-67,
42,
3,
39,
21,
47,
2,
-2,
-4,
-27,
7,
-2,
-40,
17,
2,
19,
70,
-25,
3,
-4,
-11,
39,
-81,
35,
20,
4,
-40,
12,
-64,
-12,
15,
45,
55,
21,
-15,
13,
26,
-43,
9,
76,
24,
-16,
6,
-39,
43,
-5,
23,
-43,
32,
-36,
-40,
9,
-6,
52,
-49,
-16,
29,
92,
30,
7,
-4,
-32,
2,
3,
-35,
-2,
35,
-21,
-34,
-24,
5,
-47,
-55,
-53,
21,
11,
-31,
11,
0,
-53,
-46,
4,
6,
57,
-49,
-23,
13,
-78,
-15,
-20,
26,
26,
0,
-16,
29,
22,
-9,
4,
20,
0,
9,
-10,
-36,
-9,
-37,
-12,
8,
1,
-30,
-4,
20,
40,
0,
71,
6,
-33,
-30,
-26,
-27,
41,
-72,
-3,
76,
-20,
69,
6,
0,
3,
-3,
16,
35,
-11,
30,
21,
-73,
17,
-2,
-4,
12,
-84,
2,
-21,
28,
-21,
36,
30,
-6,
32,
35,
3,
-7,
-3,
5,
42,
15,
-73,
-20,
7,
16,
29,
-53,
29,
-42,
12,
4,
-25,
-15,
-27,
-56,
-25,
-17,
37,
9,
2,
5,
-40,
0,
-8,
-9,
-5,
29,
46,
9,
-23,
1,
-45,
69,
-15,
49,
23,
10,
15,
32,
-26,
18,
30,
-37,
6,
-10,
52,
-41,
16,
60,
67,
15,
-10,
1,
-66,
60,
70,
13,
-6,
18,
65,
34,
30,
-42,
-16,
-35,
79,
11,
47,
48,
21,
-17,
3,
44,
-2,
31,
9,
30,
-17,
-35,
0,
53,
-41,
-4,
38,
45,
-37,
75,
-44,
-28,
23,
-5,
-22,
53,
61,
14,
-10,
35,
-22,
30,
41,
-44,
37,
-19,
40,
39,
45,
34,
-18,
33,
51,
9,
11,
17,
13,
-26,
24,
-12,
4,
-32,
44,
18,
6,
-7,
-2,
47,
-3,
21,
-5,
-63,
-71,
-10,
-39,
10,
31,
-10,
-57,
29,
-41,
67,
36,
44,
5,
-9,
-23,
4,
-10,
44,
21,
-4,
57,
24,
47,
-1,
0,
25,
-14,
6,
4,
0,
45,
106,
-46,
-48,
-37,
2,
49,
-48,
21,
3,
-15,
-8,
33,
45,
-36,
50,
37,
38,
-32,
8,
-18,
-2,
-23,
-9,
76,
-21,
-27,
1,
12,
-36,
-43,
10,
-63,
-21,
-65,
43,
8,
-31,
53,
13,
-8,
-29,
21,
-31,
56,
-18,
34,
-30,
17,
-13,
-26,
-21,
36,
-29,
-61,
8,
-34,
-31,
72,
-34,
-9,
65,
-1,
65,
18,
-64,
-7,
-50,
-60,
54,
-4,
13,
-13,
-36,
-49,
-7,
29,
-5,
-44,
-35,
-3,
-24,
-54,
4,
-15,
0,
-34,
-65,
5,
35,
0,
-26,
-41,
24,
59,
5,
25,
-1,
16,
0,
-27,
6,
-30,
-34,
0,
15,
-46,
12,
-47,
56,
-2,
-7,
11,
8,
6,
-37,
-16,
-3,
-8,
-38,
-44,
-18,
-22,
8,
-20,
20,
48,
-13,
-58,
0,
28,
8,
-34,
22,
-12,
53,
40,
-3,
-8,
-27,
7,
45,
-8,
31,
-18,
-36,
-34,
2,
-10,
61,
14,
-10,
2,
-66,
-15,
-35,
13,
-25,
-4,
4,
-71,
15,
4,
-4
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This action was commenced to foreclose a mortgage executed by the defendant Missoula Gas Company as security for its bonded indebtedness. The appointment of a receiver was asked and granted, the plaintiff herein being designated as such receiver. It appears that on July 1, 1909, the Missoula Gas Company executed a mortgage to the American Trust & Savings Bank and Frank H. Jones, both of Chicago, Illinois, as trustees, as security for the payment of the principal and interest of bonds authorized to be issued to the amount of $500,000. Of such .bond issue an aggregate of $150,000, dated July 1, 1909, were issued due July 1, 1921. Provision was made in the mortgage for the substitution of trustees, and, those originally named having resigned, the plaintiff was regularly selected and qualified on the - day of August, 1918, as trustee. The property described in the mortgage consists of both real estate and personalty. The realty and chattels enumerated cover all of the property of the Missoula Gas Company, including, among other things, pipes, mains, service connections, corporate and municipal rights, franchises, goodwill, etc. It is alleged by the plaintiff in his complaint that the Missoula Gas Company is a public service corporation, engaged in furnishing the inhabitants of the city of Missoula with gas. The mortgage was regularly filed for record and recorded in Missoula county, wherein the property mortgaged was located, in December following its date of execution.
The Detroit Stove Works brought suit against the Missoula Gas Company, and on May 15, 1912, caused an attachment therein to be levied upon the defendant’s real estate. Later that action was prosecuted to judgment, which was regularly entered for the sum of $7,811.49 on July 14, 1913. Judgment was also entered in favor of Northwestern Gas Equipment Company on July 14, 1913, against the Missoula Gas Company for $469.26, and on the same date like judgment was entered in favor of Charles H. Dickey and Dickey Bros, for $10,054.60. In all three instances the real estate of the judgment debtor was attached of record in advance of the entry of the judgments. All of the appellants herein filed like answers to the plaintiff’s complaint, admitting the assertion of liens on the property of the Missoula Gas Company as judgment creditors superior to those of plaintiff. Further answering, it was by each of the appellants alleged: “That said deed of trust or mortgage was not accompanied by the affidavit required by section 5756 of the Revised Codes of Montana, and said deed of trust or mortgage was therefore void as to this defendant, who was and is a creditor of said Missoula Gas Company, and that by reason thereof the judgment of this defendant as herein set forth was and is a prior lien upon said property described in said deed of trust or mortgage.”
. Demurrers were interposed to the answers and by the court sustained on February 18, 1920, and the appellants were given twenty days within which to further answer. On May 27, 1920, the Detroit Stove Works, appearing by its counsel, informed the court that it stood on its answer and declined to plead further. On July 10, 1920, the plaintiff, as receiver in the action, moved the court for authority to execute and deliver to Harry H. Parsons, plaintiff’s attorney, a receiver’s-certificate for $1,000, and on October 5, 1920, the court directed the issuance of a receiver’s certificate as- requested in plaintiff’s motion. Again, on plaintiff’s motion, an order was entered on March 21, 1922, authorizing the receiver to issue additional receiver’s certificates to the amount of $4,000. The record does not disclose when the plaintiff was appointed or qualified as receiver, nor that notice of the motions for authorization by the court of the issuance of such receiver’s certificates were served on the attorneys for appellants. The default of the appellants was entered on November 6, 1922, and the court minutes recite: “Elmer E. Hershey, Esq., attorney and counsel for the defendant, appeared in open court and objected to the foreclosure of said deed of trust and all the proceedings upon the ground that certain receiver’s receipts had been issued without notice to said defendant, which objection was then and there by the court overruled. ’ ’
Thereupon, after hearing all the evidence and proof, the court allowed the receiver, Thomas N. Marlowe, the sum of $10,875.63 as compensation and fees, Harry H. Parsons, as receiver’s attorney, the sum of $1,000 as fees, as first liens on said property, and the sum of $7.50 as court costs. The court also ordered judgment on the bonds, including interest, for $260,875, and on the receiver’s certificates, including interest, for $38,729.61, and ordered judgment for the total sum of $311,-480.24, and further ordered that the deed of trust be foreclosed. Judgment was entered accordingly. The appeal is from the judgment. Although several specifications are assigned, but two questions are presented determinative of the case, which will be stated and considered in their order.
First. Did the court err in authorizing the issuance of receiver’s certificates? The statute (see. 7149, Rev. Codes 1907 [see. 9782, Rev. Codes 1921]) provides that a defendant appears in an action when he answers, demurs, or gives the plaintiff notice of his written appearance, or has his ap,pearance entered in open court, and that after appearance the defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. It must be conceded that, where no appearance is thus made, no service or notice of papers in connection with, plaintiff’s applications to the court need be made. There would be merit in appellants’ contention, but they lose sight of the fact that defendants may, after appearance, become as effectually iii default as though no appearance at all had ever been made. Their general appearance, once entered, entitling them to notice of subsequent proceedings, does not mean that they are entitled to notice in all events indefinitely, whether they meet the court’s orders and requirements or not. When they subsequently permit themselves to get into default, they are as effectually out of court, as respects rights to notice of subsequent proceedings, as though they had failed to enter appearance within the time prescribed in the first instance. The statute providing for notice of proceedings to defendants in the action relates only to those who are actively participating therein. A defendant is in default upon failure to answer or make other appearance within the time specified in the summons, or such further time as has- been by the court granted, after which the plaintiff may apply for the relief demanded in the complaint. (Sec. 6719, Rev. Codes 1907 [see. 9322, Rev. Codes 1921].) Having taken no action to arrest the running of the time, it was unnecessary to give the defendants further notice. (Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 Pac. 445.) Here the defendants were by the court, upon sustaining demurrers to their answers, allowed twenty days within which to file amended answers. They failed and refused to do so, and stood upon their rights under the answers by them filed, refusing to further plead. They were in default twenty days after the court’s order, namely, March 10, 1920. The first application to the court for authority to execute and deliver receiver’s certificates was not filed until duly 10, 1920, eighty-three days -after the defendants allowed themselves to get in default. The first order thus complained of was made October 5, 1920, nearly seven months after defendants had defaulted. Defendants’ first objection to these orders was made November 6, 1922. The appellants could have maintained their status in court by answering over and participating in the proceedings, or by appeal from the judgment sustaining the demurrers. But they cannot thus sleep on their rights, effectually surrender them by their own negligence, and then be heard to thus complain.
Second. Did the lapse of six years from the date of the judgment, without action on appellants’ part, render the judgments inoperative as a prior lien upon the mortgaged real estate? The statute provides that from the time a judgment is docketed it becomes a lien on all real property of the judgment debtor, and that the lien shall continue for six years, unless previously satisfied. (Sec. 6807, Rev. Codes 1907 [sec. 9410, Rev. Codes 1921].) Real property is attached, as appears to have been done in this case, by filing with the county clerk a copy of the writ, together with a description of the property, and a notice that it is attached. (See. 6662, Rev. Codes 1907 [sec. 9262, Rev. Codes 1921].) But the attachment in advance of judgment confers no greater or different right to the property attached after judgment. The lien thereof becomes merged in the judgment. Therefore the effect of the attachments may be eliminated from consideration. The liens in this case, then, were in existence for six years from the date of the judgment entered in appellants’ favor against the Missoula Gas Company, vie., from July 14, 1913, to July 14, 1919. Admittedly the appellants took no action within the time prescribed to enforce the liens, and, having permitted' them to expire, they cannot now assert preference or other rights under them. Upon expiration of the liens by limitation, they do not exist at all in the eyes of the law.
In our view, the appellants by their own laches have permitted the bar to fall, and in consecpience the real estate affected is freed from such judgment liens. This leaves the real estate in the ownership of the Missoula Gas Company, unaffected by these liens, and the receiver in this action is now in possession of the property, as the officer of the court; the judgment creditors being without preference rights on account of their former judgment liens. This court has never passed upon the effect of the bar of this statute, but the language is plain, and must be applied as we read it. It confers a specific right upon the judgment creditor, and should he fail to avail himself thereof, by levy of execution and sale of the property of the debtor, he will not be heard to complain, any more than one who is deprived of right to enforce a written contract after the lapse of the period of limitation of action thereon. In order to preserve the priority obtained by the lien of a judgment, a sale under execution must be made during the life of such lien, or execution must have been issued and proceedings on judicial sale begun before the lien becomes barred,' and to avoid operation of such bar the sale must be proceeded with without any delay greater than is permitted by the statute (sec. 6816, Rev. Codes 1907) relating to sales on execution; otherwise, the mere issuance of the execution will be of no avail in avoidance of the bar of the statute. This statute was adopted from California, and first appears in our statutory laws in the Bannack Statutes, from which it has been carried forward without amendment, and now appears as section 9419 of the Revised Codes of 1921.- It has uniformly been held in California that the lien does not exist for a greater period than that fixed by statute, although the duration of the lien is fixed at a period much shorter than that barring action on the judgment itself. (Isaac v. Swift, 10 Cal. 81, 70 Am. Dec. 698; Bagley v. Ward, 37 Cal. 122, 99 Am. Dec. 256; Barroilhet v. Hathaway, 31 Cal. 396, 89 Am. Dec. 193; Rogers v. Druffel, 46 Cal. 655; Eby v. Footer, 61 Cal. 287; Sanders v. Russell, 86 Cal. 121, 21 Am. St. Rep. 26, 24 Pac. 852.)
We find that other states having similar statutory provisions have held to like effect. Our statute (sec. 6444, Rev. Codes 1907; see. 9028, Rev. Codes 1921) gives right of action on a judgment within ten years; whereas the lien of a judgment is fixed at six years as above cited. California holds that a sale under execution must be had during the life of the lien— i. e., within the six years; but, as above indicated, we believe that the issuance of an execution before the bar of the statute is sufficient, provided a sale of the property is had without unnecessary delay.
For the reasons stated, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
8,
37,
30,
29,
-15,
-4,
24,
6,
17,
-15,
-37,
3,
29,
33,
-61,
25,
26,
-46,
8,
8,
-19,
-40,
-94,
-9,
4,
-5,
-17,
-40,
4,
-2,
27,
-20,
18,
25,
-46,
-10,
-32,
-4,
29,
-35,
35,
55,
36,
-15,
-15,
35,
0,
-68,
26,
16,
11,
-31,
29,
2,
-11,
-17,
-54,
3,
-77,
8,
13,
-49,
34,
83,
22,
-19,
12,
13,
46,
6,
11,
-27,
-5,
-50,
25,
28,
-34,
-11,
-79,
-27,
-38,
-38,
25,
-30,
-32,
-24,
-55,
-5,
-16,
57,
-5,
13,
36,
22,
35,
-29,
-4,
-11,
-7,
8,
-13,
-41,
-18,
13,
31,
-1,
-22,
0,
19,
27,
-48,
-4,
-30,
-13,
-58,
20,
-34,
15,
60,
2,
-50,
20,
-48,
-41,
-1,
28,
-91,
29,
20,
-12,
-56,
1,
-6,
60,
-30,
-24,
22,
-26,
21,
38,
57,
-48,
-9,
-2,
-43,
33,
61,
-23,
5,
-16,
-45,
23,
64,
63,
30,
27,
36,
-38,
18,
-22,
42,
-70,
46,
-3,
-10,
23,
1,
12,
2,
-23,
-28,
14,
-40,
10,
60,
9,
2,
-68,
8,
-9,
-42,
7,
21,
-24,
65,
-22,
14,
46,
30,
-1,
12,
-26,
-2,
5,
-97,
0,
-5,
-37,
16,
18,
38,
12,
-16,
-8,
-10,
28,
26,
28,
29,
-3,
-25,
24,
-32,
7,
-36,
9,
-31,
-22,
-14,
-24,
52,
37,
-65,
52,
-64,
-26,
-15,
-15,
29,
-10,
-95,
-12,
11,
20,
37,
17,
6,
23,
-26,
6,
-15,
0,
-15,
32,
-14,
28,
-57,
-64,
-17,
0,
-44,
-49,
27,
60,
36,
39,
-36,
2,
-15,
-20,
46,
-32,
-33,
-7,
29,
-5,
-19,
-51,
28,
57,
-27,
14,
67,
26,
-39,
-29,
42,
-22,
-19,
-10,
3,
-40,
-22,
33,
21,
-7,
20,
29,
-75,
-29,
-30,
-16,
34,
-22,
37,
-36,
8,
-53,
14,
2,
-45,
-54,
-35,
-14,
-19,
20,
-44,
40,
-47,
7,
15,
31,
-20,
-7,
49,
-33,
-5,
36,
57,
19,
55,
42,
-15,
-8,
-11,
16,
-14,
-2,
-32,
12,
37,
-11,
-18,
54,
0,
-13,
68,
-29,
1,
2,
2,
11,
16,
-23,
-3,
19,
-7,
1,
-22,
12,
3,
38,
8,
77,
-40,
7,
8,
22,
-26,
13,
14,
1,
-40,
-1,
-4,
-34,
-33,
-40,
-3,
2,
5,
43,
-16,
9,
46,
69,
-12,
15,
-38,
54,
0,
-28,
35,
-10,
12,
32,
55,
-9,
-5,
-25,
-50,
16,
-4,
63,
-18,
-34,
17,
-18,
-67,
-13,
17,
46,
-35,
-28,
2,
0,
37,
5,
-11,
18,
18,
-25,
-16,
-35,
-5,
34,
22,
4,
-17,
-12,
11,
-10,
35,
10,
42,
7,
47,
16,
-47,
-9,
-20,
61,
-3,
30,
-6,
12,
-7,
-3,
-14,
12,
32,
-13,
-34,
-42,
51,
15,
10,
-25,
55,
42,
36,
24,
3,
50,
6,
28,
11,
-16,
5,
-43,
33,
44,
25,
14,
-18,
32,
39,
-15,
12,
19,
-19,
20,
-34,
-4,
0,
47,
-6,
-15,
-42,
-12,
-26,
-3,
-9,
51,
-9,
-12,
-58,
-13,
4,
28,
31,
1,
11,
-38,
-24,
-13,
17,
-53,
7,
-12,
-45,
-47,
-30,
11,
-65,
-10,
51,
-30,
-36,
34,
20,
18,
24,
18,
-34,
17,
23,
21,
3,
60,
0,
22,
-12,
0,
-37,
0,
-9,
20,
44,
-19,
-61,
13,
-3,
50,
-40,
-19,
21,
59,
-16,
-57,
16,
-22,
48,
22,
-11,
7,
-40,
-15,
-17,
5,
0,
-82,
-34,
5,
6,
28,
-16,
21,
-34,
44,
-7,
6,
-3,
-53,
26,
-46,
17,
-57,
-38,
-24,
-43,
36,
-8,
-31,
10,
-22,
-25,
-36,
-26,
5,
1,
-27,
2,
-45,
-14,
31,
18,
-18,
-37,
24,
-7,
-32,
-10,
33,
-33,
20,
-18,
43,
-20,
25,
-70,
-11,
0,
-11,
-14,
6,
-43,
19,
58,
0,
-32,
24,
19,
27,
-47,
30,
16,
-36,
3,
-30,
22,
32,
47,
20,
-9,
7,
-46,
-28,
-10,
49,
-41,
20,
-33,
-27,
48,
29,
-1,
-10,
-32,
-29,
-17,
0,
-29,
-47,
-12,
-15,
-8,
-7,
49,
1,
21,
11,
22,
-1,
34,
24,
67,
-20,
49,
-18,
52,
2,
40,
2,
-49,
0,
65,
-9,
35,
4,
64,
-32,
13,
-11,
50,
-24,
6,
9,
55,
22,
-32,
7,
-2,
76,
16,
-49,
99,
1,
2,
4,
9,
13,
-42,
40,
17,
-36,
30,
28,
-9,
-24,
83,
-23,
25,
37,
-58,
48,
-20,
-27,
-13,
23,
51,
-32,
-5,
3,
-43,
-15,
86,
-1,
-23,
-51,
-14,
-32,
-8,
2,
-26,
-43,
-14,
28,
-80,
5,
-28,
20,
-2,
75,
-23,
-6,
-40,
0,
0,
-7,
-36,
-4,
-8,
34,
-28,
-48,
-32,
9,
14,
-32,
-6,
2,
30,
-11,
5,
-31,
-39,
22,
-49,
-4,
29,
24,
22,
20,
-9,
11,
21,
-28,
-65,
-69,
8,
-34,
-47,
-15,
20,
-33,
-15,
25,
35,
8,
11,
-23,
-43,
-28,
-12,
-24,
36,
120,
13,
50,
8,
30,
40,
-58,
-22,
-2,
23,
-18,
-14,
12,
-1,
19,
-34,
-13,
34,
-30,
-1,
-4,
22,
48,
-34,
-72,
32,
-18,
37,
39,
-70,
14,
-47,
-6,
-65,
28,
-5,
26,
21,
-43,
-20,
13,
-22,
2,
66,
-5,
-25,
-1,
-10,
-42,
43,
35,
45,
-15,
-18,
-79,
-10,
1,
-11,
-9,
21,
29,
36,
31,
-18,
57,
23,
33,
15,
0,
-27,
22,
17,
50,
21,
8,
-62,
30,
49,
-5,
-20,
-2,
-21,
45,
-33,
-35,
24,
7,
-6,
1,
39,
-15,
74,
-2,
-11,
-4,
34,
-1,
11,
11,
52,
2,
38,
60,
-3,
-41,
-72,
-13,
12,
-23,
54,
-42,
-27,
-23,
1,
-37,
4,
-12,
14,
10,
10,
29,
10,
15,
26,
0,
-29,
-13,
-54,
50,
-7,
-25,
62,
9,
-6,
3,
2,
23,
0,
-10,
-52,
8,
-10,
53,
8,
50,
17,
5,
-15,
-19,
-20,
35,
-7,
9,
-15,
10,
63,
12,
-24,
45,
35,
-54,
1,
31,
-17,
32,
26,
45,
70,
28,
-53,
3,
-22,
-41,
-39,
0,
-3,
-65,
-6,
-31,
-33,
-19,
73,
-9,
17,
36,
-25,
-44,
-37,
26,
13,
3,
-4,
-25,
20,
-20,
15,
35,
-12,
-11,
0,
-63,
4,
-70,
34,
16,
21,
-14,
3,
-22,
5,
-4,
62,
-17,
1,
-1,
-45,
10,
-26,
-15,
3,
-13,
23,
-11,
-10,
-52,
-7,
-51,
-6,
12,
4,
54,
-5,
41,
-17,
-13,
-22,
54
] |
MR. JUSTICE' GALEN
delivered the opinion of the court.
The complaint, in this action purports to set forth three causes of action. The first is for wages due and unpaid, and the second and third for damages alleged to certain hay, pasturage and personal property belonging to the plaintiff, upon premises by him rented, by reason of alleged trespass by the defendants and their cattle. The second and third causes of action stated amount merely to but one cause of action alleged differently in separate counts. The first of these counts recites that defendants through their agents and servants, during the absence of the plaintiff from the premises, entered upon and into plaintiff’s buildings used and destroyed personal property therein contained, and herded defendants’ cattle on the premises in large numbers, thus consuming plaintiff’s hay and pasturage. The second count, being designated plaintiff’s third cause of action, is the one primarily involved on this appeal. Thereby it is alleged by plaintiff that the defendant, Deep Creek Stock Association, was an association of more than two persons “engaged in the business of raising cattle and running and herding their joint cattle, * * * under herd and in charge of herders, upon certain designated areas of the National Forest in Broadwater county; that during the season, of 1921 * * * from the early part of May until the latter part of October * * * the defendants employed one Con Mahoney and one * * * Lee as herders and placed them in charge of the cattle of” the association, “said herders being * * * the agents of the said defendants and in full charge and control of the cattle”; that during all that time the plaintiff had under lease and was in the possession and control of certain lands known as the Dean place, in Broadwater county, within the National Forest, in which forest the defendants had permits to herd their cáttle; that the. plaintiff during the times mentioned had upon the premises, by him so held under lease, valuable pasturage and roughage, together with personal property in the house and outbuildings, also twelve tons of hay in stack; that in the latter part of September and the fore part of October, 1921, during plaintiff’s absence from the premises, “the said herders, willfully, negligently and wrongfully, and the said defendants, by and through their said agents and employees, willfully, negligently and wrongfully, permitted the said cattle to escape from herd, and to break into and enter upon the said premises and there remain for a long period of time,, and knowing the said cattle to be therein, willfully, negligently and wrongfully permitted the said cattle to be and remain therein and to break through and into * * * the corral around the said hay and to eat and destroy twelve tons of hay of the reasonable value of $150, and in some manner unknown to the plaintiff,” enter the house and blacksmith-shop, “eat and destroy all the salt therein and * # * destroy all the personal property therein, and to camp therein for a long period of time rendering the building unfit for the uses it was intended * * * until cleaned and repaired by plaintiff, to the damage of the plaintiff in the sum of $75, and to eat and destroy all of the pasturage and roughage on said premises to the damage of the plaintiff in the sum of $100.” There is no allegation in the complaint that the plaintiff’s premises were inclosed by a legal fence, and it was conceded by plaintiff’s counsel at the trial that they were not so inclosed.
The first cause of action, based on plaintiff’s claim for wages due, was admitted, the amount thereof, $109.35 having been tendered to the plaintiff, and subsequently deposited with the clerk of the court subject to plaintiff’s order. The reply admitted the deposit. There was no issue on this demand.
Defendant’s answer to the third cause of action admits that the defendant Deep Creek Stock Association was an association composed of two or more persons “engaged in the business of raising cattle,” running and herding cattle in certain designated areas of the National Forest in Broadwater county, and in effect denied all other allegations. Upon issue joined the cause was tried to a jury. At the conclusion of the testimony in support of plaintiff’s claim of damages, the defendants moved for a nonsuit as to the second and third causes of action because of failure of proof, and the court granted the motion as to the second cause of action, with the consent of counsel for the plaintiff. The cause was then submitted to the jury upon plaintiff’s first and third causes of action, and the jury returned separate verdicts in plaintiff’s favor — one for the amount admitted to be due for wages, and the other for damages assessed at $325. Judgment was regularly made and entered on the verdicts for the sum of $434.35, with interest and costs. A motion for a new trial having been denied, after the plaintiff had remitted- $46 from the amount of the judgment in pursuance of a' conditional order of the court, the cause is now before us on an appeal from the judgment.
No objection is raised or argued with respect to the verdict of the jury as to the amount due plaintiff for wages, or to allowing judgment to stand for that amount. Therefore there is, in fact, nothing before this court on appeal, other than the propriety of the verdict for damages on plaintiff’s third cause of action, and judgment for the amount thereof.
Many errors are assigned, raising but a single question determinative of this appeal, viz.: What is the effect of the statute relating to lawful fences as applied to the facts of this case?
It appears that the plaintiff after putting up his hay in 1921, left the premises unoccupied by anyone, and returned thereto on October 4 and 19, on both of which occasions he found defendants’ cattle, numbering as many as forty head, upon his premises; that the hay and pasturage were completely destroyed, and other damage was done to his property as alleged. There is no evidence whatever tending to prove that the defendants willfully, negligently or wrongfully permitted the cattle to “escape from herd,” or to break into the plaintiff’s premises, or, knowing the cattle to be therein, willfully, knowingly or wrongfully permitted them to remain thereon or to do the damage alleged. And it appears without contradiction that the herders in charge of the cattle endeavored to keep them off the plaintiff’s lands, and drove them therefrom on several occasions. They also endeavored to protect the plaintiff’s hay in stack from damage by cattle by repairing the hay corral fence. The record does not disclose any duty imposed upon the herders to remain in constant attendance upon the cattle, but rather that their employment and duties incident thereto were, so far as reasonably possible, to keep the cattle upon their range obtained through forest reserve permit, and that they attempted to do no more.
However, it is argued by the able counsel for the plaintiff, and was so insisted at the trial, that the admission in defendants’ answer of the allegations of plaintiff’s third cause of action, to the effect that the defendants were “engaged in the business of raising cattle and running” and herding them “under herd and in charge of herders,” relieved the plaintiff of the necessity of proving that the cattle were placed on plaintiff’s premises by the defendants or their agents. There is no merit in this contention, for the admission is merely to the effect that the defendants did engage in such business, not that the cattle were in fact herded on plaintiff’s land or that they were actually at all times held- and restrained in herd. The defendants’ cattle were lawfully running at large within the forest reservation, and those employed by them as herders were required and attempted only to keep the cattle within that portion of the forest reservation covered by the defendants’ permit; otherwise the cattle were without restraint. From the record it would appear that they would be more correctly designated “line riders.”
This state has long been a public range state wherein live- stock of private ownership have been and now are permitted by license of the government to graze without hindrance or restriction on the open, unoccupied, public domain. Such stock are said “to be running on the range.” This latter term has a well-understood meaning to the people of Montana, as have likewise the words “under herd” and “in charge of herders.” These words as used and commonly understood here convey the idea that a considerable number of domestic animals are gathered together and held together by herders in constant attendance upon them and in control of their movements from place to place on the public range or within certain areas. Animals may be “under herd” or “in charge of herders” one day and run at large the next. In either event the language is readily understood by the owners of livestock and others quite generally in this state. As thus defined, the meaning is in accordance with Webster’s definition of the verb “herd”; i. e., “to tend, lead, or drive as a herdsman.” (Webster’s New International Dictionary,- p. 1007.)
The evidence discloses that the so-called “herders” drove the cattle within the forest reserve upon the lands covered by the defendants’ permit for summer pasturage, and therefrom in the fall of the year, and that they drove them from the plaintiff’s premises, and other places where found without bounds, back to and within the range thus provided by the owners. The cattle were to all intents and purposes running on the public range, the difference being that the government had asserted its proprietary rights, and required payment for such use of its lands.
A legal fence is defined by statute (sec. 3374, Rev. Codes 1921), and as to the liability of the owner of livestock for tres pass it is provided: “If any cattle, horse, mule, ass, hog, sheep, or other domestic animal break into any enclosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to the owner or occupant of the inclosure which may be sustained thereby. This section must not be construed so as to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.” (Sec. 3378, Rev. Codes 1921.)
And it has been held that a lawful fence as defined by the statute, entirely surrounding the grounds or premises entered, or some obstruction equivalent thereto, is a condition precedent to the right of recovery of damages against the owner of animals trespassing. (Smith v. Williams, 2 Mont. 195.)
The law applicable in this case was well and correctly stated by one of the defendants’ learned counsel, Mr. Pigott, when a justice of this court. Speaking for the court he said in the case of Beinhorn v. Griswold, 27 Mont. 79, 94 Am. St. Rep. 818, 59 L. R. A. 771, 69 Pac. 557: “Either written law or custom may withhold from the owner who does not fence his land a remedy for loss suffered by reason of casual trespasses by cattle which stray upon it, and may give a remedy for such trespasses to those only who inclose their land. By custom as well as by statute the common law of England has been so modified in Montana. This is undoubtedly a legitimate exercise of the police power. * * * If the land owner fails to ‘fence out’ cattle lawfully at large, he may not successfully complain of loss caused by such livestock straying upon his uninclosed land. For under these circumstances the trespass is condoned or excused; the law refuses to award damages. While the land owner, by omitting to fence, disables himself from invoking the remedy which is given to those who inclose their property with a legal fence, and while the cattle owner is thereby relieved from liability for casual trespasses, it is nevertheless true that the cattle owner has no right to pasture his cattle on the land of another, and that cattle thus wandering over such lands are not rightfully there. They are there merely by the forbearance, sufferance or tolerance of the nonfencing landowner; there they may remain only by his tolerance. The cattle-owning plaintiff did not owe to the land-owning defendant the duty to fence his cattle in; the latter did not owe to the former the duty to fence them out; neither of them was under obligation to the other in that regard. * * * There cannot be negligence without breach of duty. Hence, manifestly, the defendant was not guilty of negligence in omitting to prevent the plaintiff’s cattle from going upon his unfenced land.” However, where the owner of livestock herds them on another’s land, with knowledge of the private ownership thereof, or drives them to a point so near the boundaries of privately owned premises that they are certain to go upon and feed thereon, the absence of a legal fence in determining the liability of the owner of such livestock for damages becomes immaterial. (Monroe v. Cannon, 24 Mont. 316, 81 Am. St. Rep. 439, 61 Pac. 863; Herrin v. Sieben, 46 Mont. 226, 127 Pac. 323; Chilcott v. Rea, 52 Mont. 134, 155 Pac. 1114; Dorman v. Erie, 63 Mont. 579, 208 Pac. 908.)
Undoubtedly the owner of animals has no lawful right to deliberately drive or herd his stock on the premises of another, or to turn them into the inclosure of another. However, under the “legal fence law” privately owned premises must be fenced as required by statute in order to enable the owner to maintain an action for damages for trespass by the livestock of another unless (1) the trespassing animal is prohibited by statute from runniiig at large, or (2) the trespassing animal has been placed or caused to be placed thereon by the owner of the animal with knowledge that the land is not open public domain.
To warrant the recovery of damages in a case such as this, the trespass must be of such a character that it may be said to be willful. This may arise by driving or herding livestock on another’s land with knowledge of private ownership of the land, without the consent of the land owner; but in this state an action for damages may not be predicated upon the trespass of stock lawfully running at large- following their own inclinations in the absence of a legal fence inclosing the premises trespassed upon. It devolves upon the land owner to fence livestock out of his premises, to protect himself from their trespass where such stock are lawfully at large on the public domain.
In this case there is no claim made and no evidence that the cattle were driven on to the plaintiff’s premises, or herded or left so near thereto that there was likelihood of their going to and upon the lands owned by the plaintiff. It will be noted that the second cause of action in plaintiff’s complaint charged the defendants with knowingly herding their cattle upon plaintiff’s lands, but there being no evidence to support such allegation a nonsuit as to this cause of action was properly granted by the court.
The rule applicable to the facts in this case is correctly stated by counsel for the defendants in the admirable brief filed in support of their contention on this appeal. It is so well expressed that we take the liberty of adopting counsel’s language as our own: “The defendants were under no duty to herd, or keep in herd, or under herd, their cattle or any of them. In Montana and in other, states, where, as here, the land owners must, by lawful inclosure, ‘fence out’ the livestock of others, it is too plain for argument that the cattle owner may at his own pleasure either keep his cattle on his own land or turn them out with freedom to range and roam wheresoever they may desire. He is liable for such trespass only as they commit on property within a lawful fence, unless he drive them thereon, or (what is the legal equivalent) so treats them as to impel them to trespass. An example of the latter trespass is found in Monroe v. Cannon, supra.” The same mav be said of the Dorman-Erie Case.
As was well said by Horsky, District Judge, a jurist of marked ability, speaking for this court in the case of Jeffers v. Montana Power Co., post, p. 114, 217 Pac. 652: “It is fundamental th^t without a wrong there is no cause of action, and as stated by this court in the case of Riddell v. P. W. H. & V. Co., 27 Mont. 44, 69 Pac. 241: ‘A wrong is the breach of-a legal duty.’ It was therefore necessary for the plaintiff, in order to maintain his action against the defendants, to show a legal duty owing to him from them, and a breach of that duty. The mere fact that the plaintiff may have suffered damage is not of itself sufficient; there must be the violation of a duty recognized by law.”
The judgment will stand affirmed as to the first cause of action to the amount of $109.35, admittedly due unto the plaintiff for wages. As to the third cause of action, since plaintiff proceeded at the trial upon the theory that the defendants’ answer admitted that the cattle were at all times under herd and in charge of herders, the judgment thereon is reversed and the cause remanded to the district court of Broadwater county for a new trial. Costs of this appeal are assessed against the plaintiff.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
-12,
21,
-7,
21,
5,
10,
23,
-6,
13,
67,
-8,
9,
29,
43,
0,
-32,
17,
-54,
12,
18,
19,
-19,
-9,
10,
-17,
-36,
0,
-6,
-69,
2,
-6,
17,
19,
-37,
-19,
-3,
-4,
-4,
4,
7,
30,
30,
38,
-55,
64,
35,
16,
-39,
31,
9,
60,
-40,
3,
-26,
-38,
-19,
-23,
10,
-16,
1,
28,
9,
29,
34,
54,
16,
1,
-14,
-23,
6,
27,
10,
-36,
-2,
9,
-69,
3,
-39,
-26,
23,
3,
14,
23,
58,
-34,
-4,
-29,
-28,
5,
0,
-24,
-3,
-24,
15,
23,
28,
-11,
22,
-55,
3,
17,
-61,
6,
28,
-7,
8,
-45,
26,
14,
-26,
0,
35,
-19,
20,
19,
-30,
-4,
-6,
-37,
-30,
-9,
42,
33,
12,
-13,
12,
-20,
38,
-10,
48,
34,
4,
6,
0,
1,
-27,
10,
-24,
-13,
-26,
11,
34,
-61,
1,
-3,
17,
-30,
27,
-12,
-6,
-8,
35,
8,
22,
29,
-50,
12,
19,
22,
1,
25,
-20,
8,
-18,
-17,
46,
-5,
-30,
24,
34,
15,
38,
-30,
29,
0,
-17,
13,
-28,
-34,
4,
5,
-12,
-25,
26,
13,
3,
-10,
-7,
-15,
10,
12,
-71,
39,
-23,
-13,
-11,
-8,
-43,
20,
-12,
29,
2,
-29,
-7,
-2,
52,
4,
6,
16,
30,
44,
-16,
-34,
-51,
-22,
-47,
2,
21,
-18,
-25,
6,
35,
-23,
-33,
-37,
-29,
16,
21,
3,
-27,
-28,
-20,
62,
28,
4,
-54,
-2,
24,
-6,
11,
-17,
-22,
-19,
-10,
1,
15,
-3,
-13,
23,
46,
-25,
-11,
-43,
-4,
4,
19,
-3,
-17,
-64,
-31,
6,
-22,
30,
28,
0,
-58,
-70,
41,
-21,
19,
-52,
7,
17,
15,
-15,
-31,
32,
-1,
36,
-9,
37,
5,
-11,
-9,
-16,
24,
37,
-2,
-51,
0,
-30,
-19,
-31,
-12,
30,
36,
3,
-21,
55,
-9,
-22,
-27,
-44,
0,
-36,
36,
-45,
-13,
-31,
-27,
-40,
7,
1,
-30,
-24,
-22,
29,
23,
15,
-36,
27,
12,
36,
12,
17,
-26,
48,
-6,
20,
27,
58,
-20,
-13,
32,
28,
-11,
5,
-1,
-25,
11,
42,
17,
22,
26,
-40,
25,
-2,
7,
-8,
11,
5,
29,
-43,
-3,
-19,
-53,
4,
-11,
-10,
21,
29,
-22,
-23,
-21,
-6,
17,
-14,
-44,
-16,
11,
-49,
27,
56,
-10,
41,
30,
13,
9,
-7,
9,
42,
5,
16,
-4,
32,
16,
30,
9,
-25,
22,
14,
-8,
47,
88,
17,
11,
-9,
-50,
5,
10,
-29,
-16,
13,
-42,
-4,
19,
-3,
-51,
0,
-29,
-20,
-57,
2,
24,
9,
14,
-34,
-3,
1,
12,
63,
11,
64,
-56,
45,
-13,
44,
-23,
-42,
-5,
-20,
5,
11,
32,
11,
45,
6,
27,
-24,
9,
11,
19,
-38,
-4,
-40,
19,
19,
10,
64,
-19,
-1,
-29,
-23,
6,
-34,
8,
44,
-36,
35,
-41,
-15,
24,
-7,
-22,
27,
26,
12,
-12,
27,
33,
-3,
37,
39,
31,
-14,
6,
-37,
37,
18,
11,
-10,
14,
16,
-12,
17,
-2,
-44,
-9,
-1,
31,
90,
34,
-26,
0,
-35,
-36,
35,
-3,
42,
24,
-36,
-7,
14,
-50,
37,
3,
-13,
6,
29,
61,
46,
-5,
19,
-42,
-13,
43,
-18,
-11,
2,
11,
9,
-10,
-16,
-19,
10,
-46,
16,
7,
47,
-33,
-15,
-3,
-26,
3,
-3,
13,
32,
15,
-11,
-57,
-24,
-11,
95,
0,
-79,
3,
45,
-67,
53,
18,
34,
-41,
22,
-24,
-46,
38,
-79,
-62,
13,
8,
-19,
-19,
-33,
-22,
28,
3,
14,
19,
32,
61,
10,
11,
16,
-15,
59,
-8,
-61,
-15,
0,
18,
-11,
-50,
-36,
32,
14,
19,
62,
-52,
-9,
-41,
13,
9,
-52,
21,
-5,
-1,
1,
-39,
13,
27,
-15,
18,
-29,
10,
36,
18,
-44,
47,
-24,
62,
-19,
21,
20,
-19,
16,
-14,
25,
-23,
31,
5,
17,
-41,
-17,
28,
-31,
-6,
-7,
10,
17,
19,
-42,
1,
8,
-9,
-15,
28,
4,
38,
-88,
-19,
7,
-32,
-19,
-11,
-30,
-1,
-14,
11,
-63,
-20,
-48,
1,
3,
-8,
-18,
-19,
40,
-4,
-5,
-52,
51,
-20,
-17,
17,
-10,
-40,
1,
25,
-19,
38,
59,
-37,
20,
49,
13,
-21,
51,
31,
22,
-4,
-30,
-85,
24,
29,
20,
-14,
35,
24,
-54,
35,
-16,
26,
19,
52,
0,
5,
43,
-20,
-42,
-68,
6,
-1,
-2,
-4,
26,
17,
-26,
-57,
-6,
-9,
42,
-42,
5,
8,
-46,
-94,
-5,
-26,
-20,
-4,
18,
23,
10,
-50,
43,
8,
30,
25,
24,
3,
20,
117,
-38,
20,
-37,
29,
-17,
-1,
-53,
7,
-5,
-5,
29,
-9,
1,
4,
-2,
17,
-28,
-55,
28,
-50,
11,
-23,
-6,
-32,
-34,
2,
-48,
-34,
47,
-15,
-49,
-5,
-48,
5,
8,
-54,
10,
-25,
10,
19,
-20,
16,
46,
6,
4,
0,
27,
8,
-40,
-22,
-26,
-57,
2,
-11,
-13,
-6,
11,
28,
10,
-48,
43,
-61,
-24,
25,
0,
15,
-73,
-24,
12,
-9,
8,
28,
-4,
8,
33,
-5,
-14,
30,
-43,
-14,
19,
-8,
-25,
-22,
-35,
-7,
-25,
-6,
-21,
16,
-11,
20,
67,
26,
13,
-1,
17,
-28,
8,
-43,
-65,
29,
16,
8,
0,
0,
-60,
21,
5,
-18,
-4,
-6,
48,
9,
9,
28,
-23,
-39,
-11,
23,
24,
18,
-44,
-49,
-31,
-38,
-30,
39,
37,
-6,
-3,
20,
13,
38,
51,
17,
-71,
23,
-12,
37,
-24,
4,
-21,
3,
-3,
-5,
43,
9,
2,
-16,
-35,
44,
11,
17,
1,
4,
-3,
12,
4,
-42,
-43,
18,
6,
0,
-30,
-21,
6,
-49,
-11,
6,
-13,
18,
-34,
-80,
28,
27,
-10,
32,
-13,
-24,
-50,
-9,
-31,
41,
-22,
-3,
11,
-1,
54,
-2,
24,
42,
-12,
-8,
-14,
46,
12,
50,
-12,
38,
30,
-8,
-36,
12,
34,
-62,
-19,
-6,
13,
48,
39,
15,
0,
-44,
17,
-42,
-16,
19,
-14,
52,
-6,
42,
83,
2,
-15,
-13,
33,
4,
-56,
50,
4,
-3,
14,
15,
-7,
42,
-20,
17,
24,
-53,
-11,
-17,
44,
-14,
-29,
50,
-7,
-23,
36,
-40,
-89,
38,
55,
8,
-35,
-77,
-42,
24,
-13,
66,
55,
25,
5,
14,
-23,
-17,
-29,
-53,
-21,
-11,
-42,
24,
-32,
20,
25,
50,
5,
-21,
-50,
-10,
-16,
9,
-25,
51,
13,
0,
-68,
18,
-39,
37,
-33,
63
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On April 19, 1922, a petition in due form was filed with the county clerk of Fergus county, praying for the creation of Petroleum county from a portion of Fergus county. The clerk appointed May 18, 1922, at 10 o’clock A. M., as the time for hearing the petition, and gave the notice required by law. About 4:45 P. M. on May 17, certain petitions for the exclusion of territory from the proposed new county were filed, and at the same'time a protest by R. W. Blake against the creation of the new county was also filed. On the morning of May 18, before the hearing, a paper designated, “Withdrawal from Withdrawal from Petition for the Creation of the Proposed New County of Petroleum,” bearing the signatures of 109 persons, was filed with the clerk, and thereafter, and before the hearing, another paper designated “Withdrawal” and signed ;by a large number of persons was also filed.
The board of county commissioners proceeded with the hearing, and at the conclusion found that there were 1,319- persons residing within the boundaries of the proposed new county who were qualified electors whose names appeared upon the registration lists as having voted at the last preceding general election. The board deducted from the number of qualified signatures attached to the petition for the creation of the proposed county, the number of qualified signatures attached to the “withdrawal” petition, and then found that there were but 685 qualified signatures remaining on the original petition, or less than fifty-eight per cent of the number of qualified .electors within the proposed new county whose names appeared upon the official registration lists as having voted at the last preceding general election, and accordingly dismissed the petition and refused to proceed further. Thereafter an application was made to the district court for a writ of mcmdamvus to compel the board to rescind the order, find that the petition for the creation of the proposed new ■county contained the genuine signatures of at least fifty-eight per cent of the persons within the proposed county who were qualified to sign, and to make the proper order and pass the appropriate resolutions calling an election upon the question of the creation of the proposed county, etc. The board appeared by general demurrer, which after a hearing was sustained and the applicant for the writ, electing to stand upon his affidavit, suffered a judgment of dismissal to be entered and appealed.
In the application for the writ the only complaints made against the board are: (1) That it considered the Blake protest; (2) that it failed to disregard the exclusion petitions; and (3) that it failed to give effect to the withdrawals from the withdrawals.
1. The Blake protest did not do more than call the attention of the board to matters which it was required by law to consider in the absence of a protest. Among other things, the protest emphasized the fact that the petition for the creation of the proposed new county did not contain the required number of signatures of persons qualified to sign. The order of the board discloses that it was upon the determination of that question alone that the petition for the creation of the proposed new county was denied. Section 4393, Revised Codes of 1921, commands the board to determine “whether the said petition contains the genuine signatures of at least fifty-eight per cent of the qualified electors of the proposed new county as herein required.” If the decision of the board was correct, it is altogether immaterial whether it noticed the Blake protest <pr did not.
But counsel for appellant err’ in assuming that a protest against the creation of a new county must be filed at least one day before the date set for the hearing.' Section 4393 provides: “At the time so fixed for said hearing, the board of county commissioners shall proceed to hear the petitioners and any opponents and protestants upon the petition or protests filed on or before the time fixed for the hearing.” Coun sel for appellant place reliance upon the next sentence in the section; but it is manifest that it refers only to petitions for exclusion of territory and protest against such exclusion. The language of the sentence is not well chosen, but, if the contention of counsel for appellant be adopted, the two consecutive sentences in the same section would be rendered contradictory —a result which will not be reached if avoidable.
2. In the affidavit for the writ it is alleged that the board “illegally, wrongfully, arbitrarily, and in disregard of their duty, failed, neglected and refused to disregard, reject and deny the said petitions for the exclusion of territory”; but the order of the board, which is made a part of the application, dieloses that the board did not consider the exclusion petitions at all, but refused to proceed solely upon the ground that the petition for the creation of the proposed new county did not contain a sufficient number of qualified signatures. Indeed, it is not alleged that the board did give any consideration to the exclusion petitions or ever acted thereon, and this ground of complaint is without merit.
3. The principal contenton is made over the action of the board in deducting from the number of qualified names on the original petition the total number of qualified signatures attached to the withdrawal petition. It is the theory of appellant that before the board proceeded to the hearing, 109 qualified signers who had asked to have their names withdrawn from the petition for the creation of the county had withdrawn their signatures from the withdrawal; hence they were to be counted as qualified signers of the original petition, and if they had been so counted the board would have been compelled to find that the petition for the creation of the proposed county contained the genuine signatures of 794 qualified signers, or more than the fifty-eight per cent required 'by law, so that the question in its simplest form is this: May one who has signed a petition for the creation of a new county and then signed a withdrawal of his signature, thereafter, and before the hearing, withdraw from the withdrawal and thereby be entitled to have his name counted upon the original petition 1
In support of their contention that the 109 names should have been counted as signatures to the original petition, counsel for appellant cite Hoffman v. Nelson, 1 Neb. Unof. 215, 95 N. W. 347, State ex rel. Streissguth v. Geib, 66 Minn. 266, 68 N. W. 1081, and State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297. The decision in Hoffman v., Nelson supports counsel’s contention. It “was there held that one who had signed a petition for an election upon the question of the removal of a county seat and thereafter signed a withdrawal of his signature, might revoke the withdrawal before action was had upon the petition. It is said that there is not any statute in Nebraska reflecting upon the subject, and the only authority cited in support of the conclusion is the Minnesota case above. In State ex rel. Streissguth v. Geib the facts were that certain petitioners who had signed a petition for a county seat removal thereafter executed a power of attorney authorizing their attorney in fact to strike their names from the original petition. Before action was taken, however, they revoked the power of attorney, but, notwithstanding this fact, the county commissioners permitted the attorney in fact to strike the names from the petition. The court held, properly, that the grantors of the power of attorney had the right to revoke it before it was acted upon, and after it was revoked the attorney in fact had no authority to exercise the power. In State ex rel. Lang v. Furnish there was involved the question of the right of signers to petitions for the exclusion of territory from the proposed new county of Fallon to withdraw their names from the petitions prior to final action by the board. In disposing of the question Mr. Justice Sanner said: “We think the rule well established that, in the absence of legislative expression to the contrary, signers of a petition have an absolute right to withdraw therefrom at any time before final action thereon.” The correctness of the rule thus stated cannot be open to controversy, but the learned Justice, after disposing of the ques tion before the court effectively; added the following: “Indeed, the above rule is a necessary inference from the very nature of the right of petition, and of necessity applies, not merely to the petitions themselves, but to the withdrawals, so as to authorize the withdrawal of a withdrawal.” Since the right to withdraw from a withdrawal was not before the court and was not involved in -the controversy to any extent whatever, the added expression was purely dictum.
In State ex rel. Fadness v. Eie, 53 Mont. 138, 162 Pac. 164, there was presented directly the question now before us — that is, the right of one who had signed a petition for calling a local option election and then signed a withdrawal therefrom, to withdraw his withdrawal and have his name counted as upon the original petition. This court, after referring to the decision in State ex rel. Lang v. Furnish and pointing out the question therein for decision, held that the right of one to withdraw from a withdrawal “is at best not absolute and ought not to 'be enforced by mxmidamus.”
It is conceded, as it must be, that when State ex rel. Lang v. Furnish was decided, our legislature had not made any pronouncement upon the subject of the right of a petitioner to withdraw therefrom, nor had it made any declaration upon the subject of the right to withdraw from a withdrawal. The original New Counties Act (Chap. 112, Laws 1911), with the amendments (Chap. 133, Laws 1913), was repealed in 1915 (Chap. 53, Laws 1915), and another statute upon the same subject was enacted (Chap. 139, Laws 1915).‘ In the Act of 1915 for the first time reference is made to the right of withdrawal, as follows: “No withdrawals of signatures to the original petition for the creation of a proposed county shall be filed or considered which have not been filed with the county clerk on or before the date fired for the hearing.” (Sec. 2.) That provision has remained the law since, and is the only legislative declaration upon the subject. (Chap. 226, sec. 2, Laws 1919; sec. 4393, Rev. Codes 1921.) While this provision does not in terms prohibit a withdrawal from a withdrawal, it does give recognition only to the right to withdraw from the original petition, and may be said fairly to indicate a legislative intent that the right shall not be extended further, upon the familiar maxim, expressio unius est exclusio alterius. In any event, we are satisfied with the correctness of the conclusion announced in State ex rel. Fadness v. Eie, above, and since there was not imposed upon the board the clear legal duty to give effect to the withdrawals from the withdrawals, mandamus will not lie in this instance. (State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 Pac. 721.)
The judgment is affirmed.
‘Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-6,
36,
62,
-22,
-51,
-2,
0,
10,
-13,
31,
9,
-28,
-30,
59,
17,
39,
7,
-9,
41,
-18,
-69,
-26,
7,
-12,
46,
16,
-16,
4,
-35,
-20,
-41,
4,
-9,
9,
39,
-61,
-29,
-7,
29,
-15,
-10,
-8,
-24,
-38,
17,
50,
41,
-2,
-29,
13,
-52,
-15,
-19,
30,
-29,
8,
6,
-40,
-31,
29,
-6,
45,
3,
31,
16,
0,
-32,
-2,
51,
0,
-34,
-86,
-22,
-81,
56,
33,
12,
-39,
-14,
36,
8,
72,
-10,
-28,
1,
22,
-45,
48,
37,
-5,
25,
-8,
12,
1,
71,
-16,
1,
10,
3,
-23,
-54,
-23,
-21,
38,
-27,
-11,
-31,
60,
73,
-38,
-1,
-34,
-17,
-10,
34,
-29,
14,
20,
-32,
-20,
12,
71,
-13,
20,
-16,
33,
-10,
51,
60,
25,
-34,
-19,
27,
-20,
60,
5,
28,
-23,
-44,
8,
-71,
4,
12,
26,
-24,
1,
-3,
0,
-31,
-15,
33,
2,
40,
62,
0,
-40,
-1,
-13,
-1,
-6,
-36,
-17,
76,
-4,
-50,
-6,
7,
-16,
-23,
-40,
9,
26,
-23,
-1,
35,
-29,
-4,
35,
-28,
23,
56,
6,
-47,
-26,
36,
31,
-13,
55,
18,
-5,
-42,
25,
18,
-66,
-24,
-35,
9,
29,
-11,
41,
39,
-47,
48,
-8,
-5,
12,
-57,
-24,
32,
-12,
-45,
-3,
-2,
63,
-60,
57,
-25,
-89,
15,
-13,
7,
4,
33,
15,
9,
23,
61,
46,
11,
-12,
-13,
27,
22,
-34,
6,
-2,
-8,
-30,
-35,
31,
-29,
-21,
0,
30,
-17,
30,
45,
-26,
12,
42,
20,
-24,
-12,
35,
-24,
69,
49,
-16,
22,
-2,
-23,
-45,
12,
16,
-75,
-7,
18,
-22,
1,
25,
-16,
0,
-2,
18,
-4,
2,
81,
-60,
11,
30,
-10,
-27,
1,
-8,
-19,
62,
0,
22,
17,
-1,
-52,
-9,
-46,
52,
-24,
10,
75,
-12,
0,
-50,
-37,
38,
-8,
-10,
0,
-40,
-31,
-39,
-14,
0,
89,
9,
-13,
8,
-14,
-36,
-17,
107,
-1,
-4,
-17,
15,
41,
14,
-8,
0,
51,
12,
16,
44,
0,
-1,
-16,
7,
-23,
9,
-13,
3,
-10,
-96,
54,
-70,
-36,
59,
-4,
-19,
-29,
-9,
-21,
-12,
-9,
-14,
20,
29,
-41,
-24,
44,
-33,
-8,
-30,
4,
-67,
-1,
-13,
27,
-7,
-4,
-41,
-2,
-59,
2,
19,
44,
8,
15,
-22,
35,
3,
-2,
-44,
-47,
-21,
-32,
3,
45,
40,
25,
-43,
-45,
-72,
25,
17,
-63,
12,
4,
18,
3,
-42,
-38,
7,
-18,
36,
-64,
15,
-94,
62,
-44,
1,
0,
-19,
82,
-102,
16,
-46,
65,
-1,
-37,
65,
16,
-36,
-44,
26,
-21,
-24,
-37,
-11,
45,
12,
22,
-38,
-32,
0,
49,
24,
44,
40,
12,
30,
-16,
5,
-4,
45,
1,
14,
-78,
-22,
17,
49,
5,
-33,
14,
25,
-1,
-6,
9,
21,
27,
9,
-19,
-53,
-34,
78,
-17,
-29,
-24,
45,
-53,
20,
-39,
27,
-32,
22,
2,
-36,
29,
19,
28,
-2,
40,
-89,
25,
-47,
-63,
-10,
47,
0,
-28,
-15,
-19,
-31,
34,
-3,
-24,
-15,
-4,
-17,
-6,
-16,
-2,
15,
17,
29,
12,
-7,
-70,
18,
-17,
3,
-31,
28,
23,
-28,
-9,
-70,
-17,
29,
11,
5,
-21,
0,
-49,
18,
-42,
-42,
35,
-27,
27,
19,
24,
-43,
-24,
6,
7,
40,
-40,
59,
-35,
45,
-27,
-93,
117,
-29,
55,
12,
-24,
32,
-42,
-23,
-6,
-9,
-34,
-9,
-77,
11,
19,
-6,
-60,
-47,
7,
7,
6,
-32,
2,
-43,
16,
3,
-9,
-8,
-34,
-33,
22,
13,
73,
-4,
84,
-14,
-13,
-52,
-6,
20,
9,
9,
-19,
68,
-8,
7,
19,
-22,
-17,
21,
48,
-11,
-50,
71,
58,
42,
-8,
38,
-30,
-54,
-14,
20,
49,
87,
36,
-11,
-41,
-30,
5,
1,
-78,
25,
27,
58,
50,
15,
30,
0,
38,
-38,
4,
-9,
19,
0,
18,
-72,
-24,
10,
-21,
51,
17,
5,
-20,
50,
32,
4,
-2,
31,
23,
-14,
61,
-26,
-42,
-15,
-28,
40,
54,
-25,
67,
12,
27,
21,
-64,
-49,
-15,
86,
-4,
-33,
70,
26,
66,
-3,
-2,
27,
-29,
-30,
32,
45,
39,
35,
-21,
-11,
29,
-66,
-41,
17,
101,
72,
35,
23,
85,
39,
-50,
10,
26,
-46,
34,
4,
-48,
3,
34,
44,
-23,
47,
0,
-38,
-72,
-22,
-19,
-17,
53,
9,
-42,
52,
18,
11,
25,
-17,
20,
-19,
-20,
-34,
-7,
24,
-29,
12,
50,
-9,
-42,
-7,
-7,
-11,
-49,
52,
37,
32,
-41,
16,
-29,
-37,
-2,
43,
3,
12,
18,
-10,
-15,
55,
23,
54,
-18,
-37,
-55,
39,
-2,
75,
13,
-28,
-38,
-31,
27,
-25,
-25,
14,
-22,
-48,
-37,
10,
-34,
-23,
14,
-48,
13,
39,
-6,
23,
-20,
1,
-43,
29,
56,
15,
2,
-15,
24,
20,
-30,
-6,
16,
31,
-30,
-61,
31,
-67,
40,
-26,
-21,
62,
19,
7,
-48,
-20,
53,
-24,
-48,
-21,
7,
-32,
6,
67,
-54,
-14,
-12,
11,
27,
13,
7,
45,
-35,
59,
-17,
13,
30,
-14,
64,
-52,
11,
-4,
-75,
-82,
8,
-25,
65,
23,
56,
-43,
3,
30,
-53,
17,
29,
30,
-36,
2,
1,
-43,
-1,
11,
2,
7,
-24,
-29,
-12,
-44,
-60,
-3,
-46,
58,
-13,
58,
-5,
10,
-3,
23,
13,
-26,
8,
-6,
-47,
33,
23,
15,
10,
-62,
-60,
-28,
25,
15,
-38,
69,
-20,
-25,
16,
-3,
40,
47,
9,
-79,
-10,
3,
-39,
11,
6,
-19,
12,
-35,
45,
2,
65,
22,
48,
-20,
2,
45,
5,
12,
45,
5,
-20,
-6,
-16,
-1,
12,
16,
-6,
-38,
28,
-11,
58,
-8,
-25,
11,
28,
-55,
-31,
-76,
21,
-74,
-46,
19,
75,
5,
-95,
13,
-22,
16,
-8,
54,
59,
22,
-58,
-7,
-55,
-51,
21,
48,
-20,
-5,
11,
-19,
-8,
-15,
11,
-2,
-59,
22,
-14,
-1,
-83,
12,
52,
-18,
0,
32,
0,
-26,
-10,
-13,
34,
24,
-9,
5,
40,
36,
-68,
-39,
-15,
19,
5,
39,
10,
74,
-19,
53,
47,
6,
16,
13,
39,
-13,
-25,
-21,
-27,
-13,
-7,
-8,
-11,
-38,
-8,
30,
-3,
6,
69,
-40,
13,
10,
-3,
-13,
-40,
-52,
-1,
-32,
-47,
-16,
-6,
-76,
-3,
-27,
15,
1,
-4,
-3,
-30,
-24,
33,
45,
8,
47,
-4,
14,
-9,
-99,
-36,
-6
] |
MR. JUSTICE STARK
delivered the opinion of the court.
The material facts involved in this case are practically undisputed and will be most easily understood by reference to the following plat, which is taken from a map introduced in evidence at the trial.
Canyon Creek comes out of the mountains to the north, flowing in a southerly direction to a point near the northeast corner of section 6, township 12 north, range 5 west, where it turns and runs southeasterly across sections 5 and 8. Little Prickly Pear Creek comes in from the west, flowing across the northern part of sections 7 and 8, where the waters of Canyon Creek unite with it. The plaintiff has a ranch embracing sec tion 6 upon which he resides. The defendant Best is the owner of the southeast quarter of section 7, and the southwest quarter of this section belongs to Mrs. Holding.
It is not disputed but that in 1882 Joseph Parent and Joseph Hooper made an appropriation of the waters of Canyon Creek, and that a ditch was subsequently constructed for the conveyance of some portion of this water down to section 21, township 11 north, range 3 west, M. P. M., being a distance of about twenty-two miles. At a place about twelve miles from the point of diversion this ditch emptied into Silver Creek, which was used as a ditch for a portion of the remaining distance down to section 21. This ditch where it crosses sections 6 and 7 on the plat is designated as the “Gamer Ditch.” It is also undisputed that Fred Gamer acquired some interest in this ditch and water right, which wras commonly known as the Canyon Creek water right. On June 6, 1906, Gamer and his wife conveyed the above-mentioned section 21, together with an undivided one-fourth interest in and to the ditch and water right, to the Grand Lodge Charity Fund, a corporation. This title subsequently passed to the Masonic Home of Montana, a corporation, and on December 30, 1913, the latter corporation sold and conveyed to plaintiff all of its right, title and interest in and to the Canyon Creek water right and to the ditch from Canyon Creek to Silver Creek, being the interest therein which passed by conveyance from Gamer to the Grand Lodge Charity Fund.
The defendants have water rights out of Little Prickly Pear Creek and their ditch, which is designated “Gans and Klein Ditch” on the plat, runs at about right angles to the Gamer ditch down to the point marked “Dam,” where it was originally flumed across the Gamer ditch, and the two ditches then ran practically parallel to each other across the southerly part of the south half of section 7. At this place there is a hill or “hog back” projecting across the south line of the southeast quarter of section 7 and the contour of the land is such that only one ditch can be constructed around the same, so that from a place in the Gans and Klein ditch a short distance east of its point of entrance upon the southeast quarter of section 7 it was necessary to carry the water in a flume for several hundred feet. This flume was expensive to maintain, and finally about the year 1920 was washed out, so that the defendants, in order to avoid the expense of rebuilding the flume, cleaned out and improved the old Gamer ditch around the point of the hill from the point on the plat marked “Dam” down to about the point where it crossed the south line of the southeast quarter of section 7, intending to convey their Prickly Pear water through the same for that distance and then dump it back into the Gans and Klein ditch, when this action was commenced by the plaintiff for the purpose of restraining them from making use of that part of the Gamer ditch.
The defendants answered, setting forth numerous affirmative defenses wherein they claimed that the plaintiff’s right to the use of the ditch in question had been lost by abandonment, nonuser and adverse possession.
The case was tried to the court sitting without a jury. After hearing the testimony the trial judge visited and made a personal inspection of the ditches in question and subsequently' made findings in favor of the plaintiff and entered a decree restraining the defendants from taking ■ possession of or using the Gamer ditch across the south half of section 7, township 12 north, range 5 west, in whole or in part, or at all. Prom this decree the defendants have appealed to this court.
Counsel for defendants has made numerous specifications of error, but all of them present only the following'’matters for consideration: (1) Had the plaintiff, before the commencement of this suit, abandoned his rights in the Gamer ditch? (2) Was the plaintiff’s right of action barred under the provisions of sections 6432, 6433 and 6434, Revised Codes of 1907 (now sections 9015, 9016 and 9017, Rev. Codes 1921) ? (3) Had the plaintiff, prior to the commencement of this suit, lost his rights in the Gamer ditch by nonuser? (4) What was the extent of plaintiff’s right in the Gamer ditch?
1. The water flowing down the Gamer ditch was originally conveyed across Little Prickly Pear Creek by means of a flume. As early as 1906 this flume was washed out and has never been rebuilt. Prom that time down to the time of the trial of this action in June, 1922, no water had been conveyed through this ditch south of Little Prickly Pear Creek by the plaintiff or his predecessors in interest, nor had they cleared out the same or made any repairs thereto, and as a result of these years of disuse the ditch had' gotten into a dilapidated condition, had become filled with growths of underbrush and small trees, and could not be used for the purpose of conveying water without a great amount of cleaning out and repairs.
On the other hand, as appears from the foregoing, Fred Gamer owned the Canyon Creek water right and ditch down to June 6, 1906. In 1904 or 1905 his tenant used the water through the ditch -for irrigation purposes on section 21. On June 6, 1906, Gamer and wife conveyed section 21, together with the water right and ditch, to the Masonic Home. On May 14, 1907, by an instrument in writing, the Masonic Home authorized the plaintiff to take possession of the ditch and water right and to use the same in consideration of his keeping the ditch in repair, which condition was to continue until such time as it should desire to use the same upon its ranch. So far as the record discloses, this condition continued down to the month of December, 1913, when the plaintiff became the owner of the water right and the ditch as far down as Silver Creek by purchase. During this interval the plaintiff used the water on his ranch north of Little Prickly Pear Creek, and after the purchase of the ditch and water right continued to use it in the same manner.
The plaintiff testified that he owned about 700 acres of land lying north of Little Prickly Pear Creek, susceptible of irrigation through the Gamer ditch; that he had no land south of this creek and no present use for the ditch or water except on his own land, and never had had; that there was not enough water available under this right to irrigate the lands which he already owned; that he intended at some time in the future to acquire reservoir sites higher up in the mountains and to impound water and convey the same to his ranch, and if there should be more thus acquired than was necessary for his use, to run it down through the Gamer ditch and sell it to others who might want to purchase it below the point in controversy in this action. The court found that plaintiff had selected two sites for such reservoirs, and that he eventually intended to use the ditch for the above-mentioned purposes; and plaintiff testified that he had had this plan in contemplation since prior to the time when he purchased the ditch and water right. The court further found that in 1914 Mike Geier, a tenant of Mrs. Holding in possession of her lands in the southwest quarter of section 7, plowed up and obliterated a part of the ditch through said land, but that the same was done by permission of plaintiff under agreement with him that the .ditch would be restored upon his demand. These last-mentioned facts evince a clear intent on the part of the plaintiff and his predecessors in interest not to abandon either the ditch or water right.
To constitute abandonment, an intent to abandon must exist. (Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059; Thomas v. Ball, 66 Mont. 161, 213 Pac. 597; Moore v. Sherman, 52 Mont. 542, 159 Pac. 966.) The court found that, as a matter of law, plaintiff had not at any time abandoned his right to the possession and use of either the ditch or water right, and this finding is justified upon the record as presented here.
2. Defendants also take the position that, since neither the plaintiff nor his predecessors in interest had used the portion of the ditch in question during a period of more than ten years next before the commencement of this action, the plaintiff’s right to the use of the ditch had been extinguished under the provisions of subdivision 4, of section 6759, Revised Codes of 1921, which reads as follows: “A servitude is extinguished * * * (4) when the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” This position is not tenable. In the course of the trial it was claimed, and admitted by both plaintiff and defendants, .that this ditch was originally constructed over the public domain. The right of appropriators of water to use the public lands for conveyance of the same is expressly recognized and acknowledged by the Congress of the United States (sec. 2339, U, S. Comp. Stats.; 9 Fed. Stats. Ann., p. 1340), and section 2340 (Id., p. 1360) provides as follows: “All patents granted, or pre-emption of homestead allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.” In Cottonwood Ditch Co. v. Thom, 39 Mont. 115, 101 Pac. 825, speaking of the nature of the rights acquired by appropriators under these sections, Mr. Justice Smith said: “Such acknowledgment, from so supreme authority, amounts to a grant of the right of way to those who, in good faith, prosecute the work of construction, over unoccupied public lands, with reasonable diligence to completion, for the purpose of applying the completed ditch or canal to a beneficial use. ’ ’ So that the plaintiff did not acquire his right to maintain this ditch across the land in question by enjoyment, but rather by grant from the United States and therefore the above-quoted section of the Code is not applicable here.
3. Defendants further contend that the plaintiff’s right of action was barred by the provisions of section 9015, Revised Codes of 1921, because neither plaintiff nor his predecessors in interest had been seised or possessed of the ditch in question within a period of ten years next before the commencement of the suit. As above pointed out, the plaintiff’s title to the right of way for the ditch was acquired by grant from the government. This gave him the legal title to the same, and such an easement is classed as real property under sections 6667- and 6671, Revised Codes of 1921, and the same may be granted or held though not attached to land. (Sec. 6750, Rev. Codes 1921.)
By the provisions of section 9018, Revised Codes of 1921, “in every action for the recovery of real property, or the possession thereof, the person establishing- a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for ten years before the commencement of the action”; so that the plaintiff, having established the legal title to the ditch and right of way in question, is presumed to have been possessed thereof within the time required by law unless the same had been possessed adversely to him for a period of ten years before the commencement of this suit on April 19, 1920.
There is no claim in the testimony that the defendant Best or Mrs.. Holding ever made any use whatever of the ditch, or the right of way for the same, over the lands in question adverse to or in defiance of the rights of the plaintiff until Best and his codefendants commenced to clean out and repair the ditch just a few days before this suit was brought. Best did not even fence that part of his land occupied by the ditch until five or six years prior thereto, and the Holding land where the ditch crosses never has been fenced. “In order to extinguish an easement by grant, there must be some conduct on the part of the owner of the servient estate adverse to, and in defiance of, the easement, and the nonuse must be the result of it, and must continue for the statutory period of limitation; or, to produce this effect, the nonuse must originate in, or be accompanied by, some unequivocal acts of the owner inconsistent with the continued existence of the easement, and showing-an intention on his part to abandon it; and the owner of the servient estate must have relied or acted upon such manifest intention to abandon the right so that it would work harm to him if the easement should be thereafter obstructed [asserted?]. Nothing short of an adverse and hostile use of the servient estate, inconsistent with the rights of the owner of the easement, will start the statute of limitations running to defeat his right.” (Jones on Easements, see. 865.)
The determination of the court that plaintiff’s right to maintain the suit was not barred by the statute should not be disturbed.
4. The question presented under the fourth proposition is easily answered. Plaintiff alleged in his complaint that he was the exclusive owner of the Canyon Creek water right, the ditch and the right of way therefor and entitled to the exclusive use and enjoyment thereof, and in his testimony at the trial did not recognize that any other person had any interest whatever therein. However, according to the conveyances above referred to, the plaintiff only acquired such interest in the ditch from Canyon Creek to Silver Creek as had been conveyed by Fred Gamer and wife to the Grand Lodge Charity Fund, viz., an undivided one-fourth interest, and that is the limit of his right therein.
As above shown, the defendant Best owns all that part of the southeast quarter of section 7 occupied by the portion of the ditch in question, and Mrs. Holding owns the southwest quarter of the section which embraces the land occupied by the remaining portion of the ditch, and both Best and Holding testified that they were in possession of their several tracts and had- never recognized that any other person had any interest therein. The -record does not disclose that any person other than the plaintiff asserts any interest in the ditch across this land, and since “the owner of land in fee has the right to the surface and'to everything permanently situated beneath or above it” (sec. 6770, Rev. Codes 1921), and “the possessor of real estate is presumed to be the owner thereof until the contrary appears,” (Gropper v. King, 4 Mont. 367, 1 Pac. 755; sec. 10606, Rev. Codes 1921), prima facie, Best and Holding are the owners and possessors of this land and of the incidents pertaining thereto, including the ditch and right of way, subject only to the plaintiff’s asserted one-fourth interest in the ditch and right of way. As to this ditch and right of way, prima, facie, the plaintiff and defendant Best are each the owners of an undivided interest therein across the southeast quarter of section 7, and this makes them tenants in common. (Sec. 6682, Rev. Codes 1921; United States v. Northern Pac. R. R. Co., 6 Mont. 351, 12 Pac. 769.) The same condition prevails as to the plaintiff and Mrs. Holding in connection with the southwest quarter of section 7, but the record does not disclose that defendants had acquired any right to the use of her interest in the ditch across her land.
Rehearing denied September 11, 1923.
Tenants in common are equally entitled to the use, benefit and possession of the common property and may exercise acts of ownership in regard thereto, the limitation being that they are bound to so exercise their rights in the property as not to interfere with the rights of their cotenants. (38 Cyc. 17.) “Ownership of an easement over another’s land is not neces sarily inconsistent with a like use 'by the land owner of the servient tenement so long as such use is subordinate to the easement and does not restrict or limit its exercise.” (Wiel on Water Rights, 3d ed., 487, sec. 459; Hoyt v. Hart, 149 Cal. 722, 87 Pac. 569.)
From what has been said above, it is apparent that the defendant Best was entitled to use the Gamer ditch so far as the same was located upon his land and to consent to the use thereof by his codefendants, provided such use did not interfere with the right of the plaintiff to use his undivided one-fourth interest therein; and for this reason the decree of the court is so modified as not to restrain the defendants' from taking possession and using that portion of the diteh running through the southeast quarter of section 7, township 12 north, range 5 west, and as so modified the decree will stand affirmed. Each party will pay his own costs on this appeal.
Modified and affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
[
1,
45,
26,
34,
10,
-33,
20,
40,
24,
37,
9,
21,
37,
24,
58,
-56,
-43,
-35,
-12,
15,
26,
-11,
-54,
-22,
-8,
15,
-35,
-5,
-20,
-10,
29,
5,
12,
-6,
-15,
7,
9,
32,
-7,
19,
64,
3,
-8,
-40,
34,
22,
-2,
-62,
-34,
-21,
23,
-31,
8,
5,
-52,
-13,
-20,
2,
-49,
34,
-4,
-27,
40,
30,
65,
10,
24,
-31,
40,
8,
-27,
-14,
-28,
-24,
14,
-11,
55,
-51,
-38,
-24,
-91,
1,
11,
7,
-11,
-33,
-44,
21,
26,
6,
-3,
-15,
32,
20,
-24,
33,
-12,
-18,
-76,
25,
32,
-54,
-17,
54,
68,
-33,
-65,
-8,
34,
-10,
8,
27,
-2,
-18,
2,
-37,
8,
45,
-68,
-42,
-5,
-14,
26,
0,
-45,
-16,
7,
-7,
11,
2,
-8,
-13,
25,
-4,
-4,
14,
-27,
-40,
-24,
-3,
0,
32,
3,
-32,
10,
-28,
23,
4,
-18,
-15,
4,
-9,
18,
6,
39,
-27,
-9,
-2,
34,
-3,
5,
-13,
38,
24,
-29,
67,
4,
-41,
-3,
3,
-12,
-3,
-19,
-30,
47,
31,
0,
-41,
-17,
31,
16,
26,
-16,
13,
-32,
-14,
-4,
-36,
29,
13,
-10,
-43,
18,
-18,
-23,
45,
-17,
-39,
-18,
-20,
29,
-15,
18,
-7,
-17,
23,
-23,
23,
4,
-12,
14,
-17,
38,
-23,
-12,
-27,
-16,
-6,
15,
0,
43,
30,
18,
10,
-8,
10,
-4,
13,
18,
-39,
-24,
-7,
51,
-1,
-25,
25,
-51,
-1,
-58,
-36,
-14,
-25,
-17,
-29,
53,
38,
16,
-12,
-41,
24,
-36,
-43,
-24,
11,
1,
-7,
-15,
-9,
-2,
-34,
45,
-27,
34,
35,
-27,
-23,
-38,
-15,
-3,
25,
-21,
3,
60,
24,
-35,
-53,
24,
13,
-3,
5,
17,
3,
-36,
23,
8,
11,
-5,
4,
-40,
15,
19,
-3,
-20,
-11,
25,
-35,
7,
-45,
19,
-22,
40,
-25,
31,
40,
9,
51,
-31,
35,
6,
20,
53,
6,
-33,
20,
-22,
51,
-43,
3,
0,
28,
18,
13,
27,
-15,
-14,
67,
36,
-58,
-52,
41,
10,
28,
-9,
59,
32,
-40,
43,
-4,
18,
-14,
-17,
-40,
4,
3,
-2,
20,
15,
43,
-48,
-46,
-12,
57,
1,
-25,
9,
-40,
-33,
-21,
-32,
24,
14,
-20,
-3,
11,
-47,
2,
-32,
-14,
16,
5,
4,
25,
26,
32,
33,
-2,
34,
21,
-63,
28,
-13,
16,
55,
16,
49,
45,
66,
-11,
-12,
-17,
-5,
-35,
-2,
67,
-28,
9,
18,
16,
14,
-19,
-1,
27,
2,
-24,
-35,
-8,
0,
-25,
-6,
-18,
-32,
-12,
-30,
-66,
21,
18,
-11,
24,
-22,
38,
-40,
-48,
21,
19,
25,
-49,
-8,
-1,
-35,
5,
-25,
19,
-12,
6,
-35,
16,
-10,
7,
-51,
35,
15,
2,
0,
-53,
-32,
-16,
-24,
-7,
72,
-47,
12,
21,
-38,
31,
-35,
15,
1,
-39,
25,
-19,
-24,
21,
-19,
16,
-11,
-6,
-8,
-30,
5,
18,
26,
57,
41,
-21,
33,
28,
39,
18,
-20,
-50,
20,
2,
26,
11,
-31,
9,
-5,
-17,
38,
14,
45,
-2,
26,
-44,
20,
-6,
-3,
19,
53,
-34,
-9,
23,
16,
-51,
-43,
36,
1,
-7,
-45,
54,
31,
-46,
4,
-33,
-35,
11,
51,
-14,
0,
32,
27,
8,
-8,
33,
-6,
-10,
-26,
5,
86,
-4,
-32,
40,
-31,
37,
-15,
-1,
-47,
-2,
-12,
-65,
-24,
-38,
69,
26,
-81,
21,
36,
-49,
17,
11,
22,
23,
-29,
59,
19,
-1,
-36,
-18,
4,
50,
-19,
9,
-26,
-51,
36,
17,
-6,
28,
-33,
-42,
7,
25,
-2,
-17,
11,
-23,
13,
22,
-45,
85,
-23,
-26,
-45,
-10,
-11,
54,
37,
22,
10,
2,
5,
-23,
20,
3,
-1,
18,
38,
-16,
-45,
7,
-2,
16,
-12,
-10,
-21,
-28,
-4,
-49,
1,
-22,
-27,
13,
34,
11,
31,
45,
25,
-57,
25,
4,
40,
-7,
-5,
18,
25,
-14,
-50,
52,
-10,
31,
-7,
-20,
-16,
13,
32,
-24,
18,
23,
-42,
1,
28,
-6,
25,
-27,
-34,
20,
1,
-4,
-26,
-28,
-22,
39,
47,
-16,
2,
-5,
-11,
0,
0,
-55,
32,
0,
-28,
8,
-66,
4,
23,
-6,
8,
3,
-7,
-41,
23,
20,
29,
-17,
37,
48,
35,
-6,
-8,
-23,
26,
-24,
26,
28,
23,
3,
9,
19,
31,
33,
-7,
10,
-9,
-28,
39,
-14,
-62,
-62,
-23,
-12,
-17,
22,
0,
-3,
-42,
-44,
29,
3,
7,
-7,
0,
11,
-87,
-4,
-15,
-43,
-42,
-4,
18,
3,
-65,
8,
60,
-16,
-40,
16,
-6,
40,
-8,
38,
4,
39,
44,
57,
3,
16,
-10,
-11,
4,
-20,
-6,
47,
-16,
48,
34,
-20,
8,
0,
15,
30,
16,
-11,
-8,
-32,
-23,
50,
-11,
12,
48,
-12,
-25,
-13,
23,
-38,
-3,
-16,
-36,
18,
20,
-19,
-23,
11,
-28,
-3,
-16,
5,
45,
-26,
-13,
-21,
-46,
-20,
28,
-47,
34,
83,
6,
50,
-45,
-11,
-11,
7,
-37,
24,
52,
15,
-17,
21,
-35,
26,
96,
28,
19,
-29,
11,
1,
-6,
12,
-8,
-19,
24,
-20,
-5,
-36,
-58,
-39,
51,
-21,
-1,
-17,
-3,
-29,
14,
25,
5,
-37,
-42,
-19,
55,
-4,
-15,
43,
-35,
-16,
30,
-2,
3,
-21,
-56,
-3,
-25,
-32,
13,
-24,
-56,
15,
15,
17,
-23,
14,
6,
-11,
4,
-39,
-31,
-5,
6,
32,
57,
5,
-11,
8,
-7,
4,
65,
11,
1,
-19,
-12,
40,
-37,
-21,
-46,
-7,
-45,
-13,
37,
14,
-24,
-22,
-28,
11,
-15,
6,
-2,
37,
47,
30,
15,
-82,
16,
20,
29,
26,
-23,
12,
9,
-24,
0,
-17,
-38,
0,
9,
11,
53,
43,
20,
1,
-22,
-55,
-66,
55,
-22,
2,
-9,
-16,
-8,
39,
-4,
43,
-2,
-6,
-52,
15,
-28,
11,
-43,
50,
-41,
4,
29,
0,
-6,
19,
-50,
-28,
33,
-14,
23,
-19,
2,
54,
15,
-38,
25,
-39,
-15,
18,
22,
70,
-29,
63,
29,
-44,
-65,
-3,
6,
-69,
-62,
41,
-19,
3,
3,
-2,
27,
3,
50,
3,
9,
-5,
-1,
-28,
5,
-30,
35,
17,
4,
-66,
49,
19,
-38,
0,
23,
15,
0,
-42,
-5,
-16,
-15,
39,
-10,
20,
50,
-4,
-32,
-6,
-16,
-45,
-30,
-44,
-29,
23,
-2,
36,
-31,
25,
43,
-34,
-15,
-23,
64,
-25,
-2,
20,
-7,
73,
5,
15,
-2,
-2,
-8,
-5
] |
MR. JUSTICE STARK
delivered the opinion of the court.
In this action the plaintiff seeks to recover from the defendant the sum of $200 which is alleged to have been unlawfully obtained from him by the use of force, coercion and threats. The case was tried to a jury, and at the close of the testimony on the part of the plaintiff the court sustained defendant’s motion for a nonsuit, whereupon judgment was entered in its favor, from which the plaintiff has appealed. The ruling of the court on the motion for nonsuit is assigned as error.
We approach a consideration of this case bearing in mind the rule so frequently announced by this court that on a motion for nonsuit all the evidence tending to prove the plaintiff’s case will be assumed to be true.
Upon the trial the plaintiff testified that he was a wholesale dealer in billiard supplies at South Great Falls and occupied, as a tenant, the storeroom and basement of a building located at No. 11 Fifth Street South; that the basement was used as a workshop; that in the storeroom he used a three-burner gas-plate, which was connected with the defendant’s gas-main through a gas-meter located in the back corner of the basement under a stairway near a large window on the alley-side; that on some occasions the gas flowing from the meter to the gas-plate “froze,” and instead of calling upon the defendant company to send its man down to thaw out the pipe to remedy the defect, he tapped the gas-pipe leading from the outside of the building to the meter, and inserted a short piece of pipe and a device for burning gas without allowing it to pass through the meter; that the device was installed along in November or December, 1921; that he intended to take the matter up with the gas company and its officers and tell them what he had done, but had overlooked doing so; that he was willing to pay for what gas he had used and intended to do so.
On January 31, 1922, plaintiff had the gas burning through the device above described, and left his place of business for the purpose of going to the bank and postoffice. During his absence the building was set on fire by this burning gas, the fire department was called out, extinguished the flames and shut off the gas. Plaintiff did not return to his place of business until after the fire had been extinguished and the gas shut off. Meantime Mr. Bertke, manager of the defendant company, had arrived upon the scene with his attorney, and when the plaintiff approached, Bertke called out to him: “I have got the goods on you now. You are stealing gas. I will send you over the road to the penitentiary.” Bertke, his attorney, and the plaintiff went dowm into the basement, and there Bertke said: “You have burned it all winter and I want $200.” Plaintiff and Bertke then argued about the amount of gas which plaintiff had consumed through the device; Bertke claiming $200, based on an estimate of $50 per month, plaintiff insisting that he had not burned the gas on more than three occasions of thirty to forty-five minutes each, and that he could not have used to exceed $10 worth. In the course of the conversation Bertke said to his attorney: “I want you to attach everything he has got.” Testifying further as to state ments made by Bertke at the time, plaintiff said: “He was making threats and said he would send me to the penitentiary and attach everything I had and take everything I had away from me; that I had done a criminal offense.” During the course of the conversation a policeman came in, and plaintiff testified: “I did not know but what he was making an arrest. I believed that was what he was there for at the time. * * * Bertke said he wanted $200 right there and then or he would send me to the penitentiary.” As to the effect of this conduct upon the plaintiff he said: “In regard to my believing he would send me to the penitentiary, the way he looked, I did not know what he would do. In my state of mind he looked like an elephant to me; he scared me, that was all; I was afraid they would arrest me and prosecute me.” Under these circumstances plaintiff gave his check to the defendant company for $200, and in reference thereto-testified: “I gave the check for the purpose of avoiding prosecution or being sent to the penitentiary or jail.”
The statute relied upon by defendant to establish the fact that plaintiff was guilty of a criminal offense is section 11385, Bevised Codes of 1921, which provides that every person who, with intent to injure or defraud, procures, makes or causes to be made any pipe or other conductor of gas, and connects the same with any main, service pipe or other pipe for conducting illuminating gas in such manner as to supply illuminating gas to any burner or orifice by or at which illuminating gas is consumed, around or without passing through the meter pro-, vided for the measuring and registering the quantity consumed, or in any other manner so as to evade payment therefor, is guilty of a misdemeanor.
The consent of a party to a contract must be free. (Sec. 7473, Bev. Codes 1921.) An apparent consent is not free when obtained through duress or menace. (Id., sec. 7475.) The unlawful confinement of the person of the party constitutes duress (Id., sec. 7477), and the threat of such unlawful con finement constitutes menace under the provisions of section 7478.
Did the acts of the defendant, through its manager, Bertke, amount to a menace as above defined? The circumstances that defendant demanded from plaintiff the immediate payment of $200 or it would send him to the penitentiary, that thereupon the plaintiff gave the defendant his check for the sum demanded for the purpose of avoiding prosecution and imprisonment, coupled with the further facts that the plaintiff strenuously contended that the total amount of his liability to the defendant for the gas which he had consumed did not exceed in value the sum of $10, and that after obtaining this money the defendant wholly refrained from instituting criminal proceedings against the plaintiff, would have justified the jury in coming to a conclusion that the defendant’s threats to prosecute and imprison the plaintiff were not made for the mere purpose of calling to his attention the fact that he was liable to prosecution under the penal statutes of the state, but were made solely to compel the payment of a debt alleged to be due to the defendant from the plaintiff. If the defendant had actually caused the institution of criminal proceedings and the actual arrest and imprisonment of the plaintiff for such purpose, the arrest and imprisonment, so far as the defendant was concerned would have been unlawful, and so would have constituted duress under the statute above quoted, although as between the state and the plaintiff the arrest and imprisonment might have been lawful.
In Richardson v. Duncan, 3 N. H. 508, the court said: “It is now well settled, that when there is an arrest for improper purposes, without a just cause, or where there is an arrest for á just cause, and without lawful authority, or where there is an arrest for a just cause, and under lawful authority for unlawful purposes, it may be construed a duress.”
In the case of Heaton v. Norton County State Bank, 5 Kan. App. 498, 47 Pac. 576, it is said: “While it has been held that threats of imprisonment, to constitute duress, must be unlawful imprisonment, we think the question is, whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener, who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered with reference to his effort to use for his private benefit, processes provided for the protection of the public and the punishment of crimes. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of the laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way.” To the same effect is the case of Hargreaves v. Korcek, 44 Neb. 660, 62 N. W. 1086.
“An arrest by a legal warrant on a criminal charge, to compel the satisfaction of a mere private civil demand, is a misuse of process, and fraud upon the law, and an illegal arrest as respects the party who knowingly and purposely perverts the machinery in that way.” (Heaton v. Norton County State Bank, supra, citing Sieber v. Price, 26 Mich. 522; Thompson v. Niggley, 53 Kan. 664, 26 L. R. A. 803, 35 Pac. 296.)
In the case of Hackett v. King, 6 Allen (Mass.), 58, the trial court instructed the jury: “If the plaintiff was arrested under a legal warrant and by a proper officer, yet if one of the objects of the arrest was thereby to extort money or property from him, or to enforce the settlement of a civil claim, such arrest would be a false imprisonment by all who directly or indirectly procured the same or participated therein for any such purpose.” Upon appeal the supreme court held such instruction correctly stated the law.
The fact conditions in Bullard v. Smith, 28 Mont. 387, 72 Pac. 761, cited and relied upon by defendant, are so different from those here presented as to render that case of no controlling effect in this case.
The foregoing authorities fully sustain the proposition that even a lawful imprisonment for an unlawful purpose will constitute duress, and therefore the threat of imprisonment for such purpose constitutes menace under the Code sections above cited. Since the testimony on the part of the plaintiff would have justified a finding that the object of the threatened imprisonment was for such unlawful purpose, the case should have been submitted to the jury.
Defendant further contends that, since the plaintiff’s tes timony shows the $200 was paid to suppress a criminal prosecution, it cannot be recovered. The general rule is that money paid on an agreement to suppress a threatened criminal prosecution cannot be recovered, because, this being an illegal agreement, the law will not aid either party thereto; it leaves the parties where it finds them.
In pari delicto potior est conditio defendentis. (13 C. J. 492.) This rule, however, is subject to the qualification that, if the payment has been induced by duress, menace, or oppression, it can be recovered, for the reason that the parties to the agreement in such circumstances are not in pari delicto. (13 C. J. 498; Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069. See, also, cases collected in note at page 43 of L. R. A. 1918C.)
The case of Union Exchange Nat. Bank. v. Joseph, 231 N. Y. 250, 17 A. L. R. 323, 131 N. E. 905, cited by counsel for defendant, is not in accord with the principle announced in the foregoing qualification to the general rule; but this ease is clearly not in accord with the great majority of the authorities, and the reasons given to sustain the same, which, in addition to holding that the parties are not in pwri delicto, also hold that it would be contrary to public policy to permit the oppressor to retain the results of his wrongful act.
The judgment is reversed and the cause remanded to the district court of Cascade county for further proceedings.
Reversed and remanded.
Mb. Chief Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
[
-32,
33,
-3,
20,
-11,
-44,
4,
-22,
10,
9,
0,
64,
4,
22,
25,
-15,
3,
35,
32,
-17,
52,
-63,
12,
-60,
-11,
-17,
-25,
-1,
-5,
44,
65,
2,
-9,
40,
-65,
19,
-35,
7,
-13,
-23,
16,
9,
50,
-20,
27,
14,
-31,
-20,
65,
-5,
4,
-12,
53,
6,
-32,
-36,
-11,
55,
-39,
54,
48,
-55,
28,
25,
18,
-16,
19,
-15,
-14,
54,
-21,
-47,
22,
-6,
24,
-12,
0,
-27,
-20,
-2,
-56,
-13,
0,
19,
-30,
-6,
21,
-18,
-30,
-17,
10,
-1,
-2,
22,
27,
-18,
-22,
19,
-34,
-9,
-29,
-38,
-53,
68,
49,
30,
-37,
31,
-17,
-2,
-53,
40,
11,
-15,
0,
-23,
53,
-8,
0,
-14,
36,
18,
17,
-30,
-42,
11,
-30,
-50,
35,
-14,
-18,
26,
7,
20,
-23,
-20,
-9,
13,
-40,
44,
-16,
8,
-27,
14,
-20,
39,
39,
43,
-29,
-5,
-38,
-4,
39,
-8,
2,
-15,
7,
-62,
25,
5,
-6,
-23,
22,
-8,
2,
2,
9,
-6,
-9,
-37,
-52,
-14,
-31,
-16,
36,
32,
-23,
-99,
-62,
9,
11,
16,
13,
4,
79,
-10,
10,
40,
19,
6,
42,
41,
-52,
46,
-69,
19,
-28,
13,
36,
-16,
21,
-34,
-36,
-41,
-1,
34,
33,
-1,
48,
-7,
-15,
16,
-10,
-38,
-41,
27,
-11,
-41,
-34,
-5,
-18,
-27,
-30,
48,
-3,
-45,
38,
30,
42,
13,
-103,
-25,
-6,
-18,
0,
4,
-14,
-1,
6,
23,
19,
26,
-30,
11,
31,
-9,
-31,
-18,
-30,
0,
-32,
-27,
31,
45,
33,
47,
1,
15,
4,
-20,
16,
12,
-32,
-2,
15,
2,
0,
-48,
-14,
51,
-90,
-13,
18,
73,
-18,
-60,
7,
24,
42,
10,
-77,
-35,
-34,
39,
40,
19,
18,
-25,
-36,
-54,
16,
17,
17,
3,
40,
6,
-16,
-23,
-63,
0,
-63,
-54,
-10,
-28,
-1,
14,
-16,
-10,
-52,
1,
21,
-1,
-20,
7,
53,
17,
-13,
60,
11,
-33,
18,
20,
-40,
-3,
-31,
-4,
0,
-10,
33,
-37,
25,
20,
5,
45,
-69,
0,
39,
24,
71,
-16,
-45,
-10,
4,
-14,
-9,
19,
37,
-19,
-2,
-49,
-9,
-31,
18,
21,
-17,
11,
1,
22,
-43,
60,
55,
-18,
-15,
-19,
-19,
43,
-23,
-9,
-11,
59,
-2,
-10,
-33,
-16,
45,
-14,
-26,
10,
-60,
39,
7,
-41,
28,
-36,
0,
59,
39,
-50,
-30,
14,
-58,
2,
9,
54,
4,
0,
-11,
-13,
1,
-2,
34,
16,
-19,
-74,
-31,
-27,
-23,
23,
-15,
-14,
5,
-36,
15,
-44,
1,
-22,
-18,
13,
15,
-14,
12,
-29,
47,
40,
43,
-37,
8,
21,
-37,
-33,
-28,
46,
-5,
-17,
-55,
19,
-17,
-9,
8,
28,
-15,
26,
-35,
-34,
45,
45,
-22,
8,
51,
64,
5,
14,
88,
39,
31,
23,
44,
-13,
93,
-20,
-26,
22,
-3,
24,
-12,
-4,
-29,
-25,
-41,
29,
-9,
42,
5,
-39,
5,
37,
0,
-46,
8,
-13,
-36,
59,
42,
-26,
-23,
-13,
17,
-28,
-1,
0,
49,
9,
6,
-45,
-30,
-23,
-10,
30,
-18,
-15,
-54,
-67,
-51,
-26,
-27,
4,
0,
-41,
14,
10,
44,
18,
3,
0,
18,
-38,
13,
28,
5,
62,
-13,
-18,
-14,
61,
-60,
3,
-17,
-9,
38,
-63,
-13,
-1,
-33,
-5,
4,
-30,
23,
6,
29,
-14,
-1,
-31,
30,
21,
-12,
-7,
-17,
27,
6,
25,
-17,
15,
11,
22,
9,
-20,
2,
42,
-5,
51,
6,
36,
-11,
-32,
5,
-3,
8,
-2,
-4,
-45,
-27,
23,
10,
-7,
-15,
-67,
-26,
-34,
-20,
0,
32,
17,
23,
-44,
-55,
52,
1,
61,
-25,
19,
1,
9,
11,
3,
19,
26,
-34,
-4,
-47,
0,
-12,
-12,
5,
-8,
-8,
-5,
-41,
8,
61,
-15,
38,
54,
-15,
-21,
8,
-8,
-5,
-5,
34,
-4,
50,
7,
-14,
54,
34,
-17,
-54,
10,
-29,
11,
-42,
21,
29,
20,
6,
-18,
22,
32,
-25,
-13,
-18,
-40,
44,
-48,
-45,
51,
0,
18,
2,
1,
12,
-7,
35,
-3,
-4,
-9,
26,
8,
33,
-81,
-48,
-23,
-33,
11,
-2,
4,
50,
-47,
18,
19,
-5,
-13,
11,
-20,
-12,
-11,
0,
23,
1,
17,
19,
-21,
-10,
51,
-3,
-29,
20,
-2,
-3,
11,
-43,
21,
-68,
40,
28,
63,
13,
-31,
0,
-28,
9,
-37,
36,
43,
-63,
21,
2,
-58,
17,
-27,
26,
-5,
0,
-2,
-20,
-12,
16,
-42,
-43,
-10,
-33,
-33,
13,
28,
-10,
11,
8,
61,
-67,
-39,
-12,
20,
9,
29,
-17,
27,
-53,
-15,
-15,
-40,
-14,
26,
35,
24,
-3,
-30,
33,
-23,
39,
-19,
7,
-2,
22,
-2,
15,
4,
12,
-13,
-91,
25,
55,
24,
54,
-20,
-21,
50,
32,
-15,
-46,
-50,
11,
-7,
10,
15,
0,
56,
-1,
-7,
35,
18,
-36,
-24,
0,
-41,
-8,
-14,
6,
60,
25,
45,
-12,
7,
-12,
-45,
-25,
4,
38,
15,
-6,
-14,
-9,
3,
15,
0,
7,
-18,
42,
0,
47,
-1,
-36,
-44,
48,
-9,
20,
-31,
-63,
-58,
25,
-2,
8,
45,
-29,
18,
40,
-11,
-20,
-32,
-32,
-63,
34,
-6,
-29,
42,
17,
16,
32,
12,
22,
-62,
-14,
9,
-57,
86,
32,
2,
-23,
-13,
8,
16,
-24,
58,
-49,
24,
-6,
32,
15,
3,
36,
24,
20,
-4,
-84,
15,
49,
-31,
-55,
-17,
9,
-30,
16,
6,
21,
-22,
7,
48,
16,
-33,
72,
-10,
-24,
-19,
30,
-28,
-8,
21,
-3,
-47,
-12,
59,
51,
3,
-4,
-18,
16,
-6,
17,
-18,
36,
-34,
16,
-32,
13,
48,
-4,
15,
8,
-25,
-6,
33,
20,
-17,
-9,
9,
13,
53,
-22,
-19,
-3,
15,
16,
-25,
-1,
-17,
-5,
5,
-61,
36,
-26,
64,
-38,
-3,
28,
7,
32,
-13,
0,
-46,
-6,
5,
-22,
-15,
52,
15,
2,
-31,
-1,
-31,
-15,
38,
39,
47,
-13,
46,
12,
-33,
-28,
8,
-24,
-16,
-54,
48,
11,
14,
31,
-3,
63,
-13,
40,
-35,
-7,
14,
26,
-32,
-64,
6,
0,
-12,
-34,
-21,
35,
18,
-26,
0,
27,
-52,
-30,
-13,
24,
7,
18,
-13,
-29,
58,
2,
-6,
36,
9,
43,
-42,
-51,
12,
-46,
-9,
9,
26,
27,
6,
16,
9,
-21,
-12,
41,
21,
11,
30,
-43,
38,
-34,
-22,
14,
45,
-26,
31
] |
PER CURIAM.
Upon motion of respondent it is ordered that the appeal in the above-entitled cause be dismissed.
|
[
-80,
-40,
11,
4,
57,
-6,
20,
0,
-7,
-25,
-47,
42,
-91,
-10,
-58,
19,
-11,
-53,
35,
-24,
23,
61,
28,
-34,
-22,
-41,
6,
42,
67,
13,
-9,
-13,
-48,
38,
20,
-78,
17,
-9,
12,
-2,
-14,
18,
35,
21,
-22,
-24,
35,
24,
0,
35,
4,
73,
-75,
-27,
-66,
8,
10,
-16,
17,
-16,
-11,
44,
-24,
14,
-18,
-4,
11,
-36,
-17,
26,
-32,
23,
77,
4,
32,
-10,
-12,
23,
-9,
65,
14,
58,
13,
28,
7,
26,
62,
83,
-65,
25,
-11,
-21,
8,
-55,
-83,
27,
53,
-19,
18,
13,
51,
34,
40,
-13,
-14,
-57,
47,
35,
-42,
-10,
0,
4,
-34,
-41,
-24,
58,
-4,
-1,
29,
10,
-7,
29,
28,
26,
6,
49,
5,
11,
5,
4,
-5,
41,
0,
15,
45,
13,
30,
22,
2,
0,
5,
-20,
-4,
9,
-59,
-21,
-36,
17,
0,
-20,
50,
20,
-43,
22,
34,
38,
-11,
-39,
63,
77,
25,
-13,
-35,
49,
14,
16,
-34,
-15,
24,
54,
11,
-17,
35,
-9,
-40,
14,
-37,
33,
34,
36,
42,
27,
31,
-5,
-59,
-6,
-39,
70,
0,
-50,
-58,
-10,
18,
1,
36,
-30,
56,
18,
1,
-15,
-57,
9,
-31,
-56,
-47,
-5,
-61,
-68,
9,
-3,
4,
17,
-19,
9,
22,
32,
13,
22,
21,
65,
31,
-19,
6,
13,
64,
-33,
-32,
39,
4,
72,
2,
12,
-57,
35,
40,
-6,
36,
34,
-10,
-62,
-45,
31,
63,
-37,
-64,
27,
76,
81,
51,
-45,
64,
18,
79,
-25,
19,
-31,
-22,
38,
-2,
-68,
23,
23,
-16,
-31,
-39,
76,
56,
24,
12,
-24,
-29,
56,
-12,
0,
28,
-20,
-11,
-29,
4,
38,
-66,
-29,
-26,
-10,
-41,
11,
0,
-34,
27,
-28,
-14,
21,
1,
0,
36,
26,
-66,
27,
-65,
-55,
-13,
-19,
-7,
2,
30,
26,
-11,
-30,
7,
-44,
-30,
50,
35,
5,
-42,
66,
-55,
-47,
10,
-13,
-5,
-7,
-81,
-3,
-15,
-11,
-21,
-12,
59,
22,
-2,
16,
25,
-4,
-20,
91,
20,
55,
24,
42,
-4,
31,
-41,
12,
-5,
-19,
13,
-19,
46,
8,
-84,
1,
9,
-58,
50,
-68,
4,
-49,
-9,
30,
-20,
16,
84,
11,
102,
8,
6,
29,
-66,
-9,
-61,
7,
22,
-73,
-26,
-26,
-2,
-3,
13,
-7,
-15,
-41,
68,
-11,
18,
17,
56,
51,
-33,
-16,
-10,
-32,
-4,
-35,
-89,
50,
18,
22,
2,
23,
45,
-50,
-19,
23,
-27,
-16,
47,
-5,
2,
34,
-43,
71,
0,
32,
86,
-14,
9,
52,
79,
-27,
75,
-11,
-8,
57,
-15,
81,
-15,
-62,
18,
-15,
19,
-31,
47,
27,
-15,
58,
41,
-12,
7,
78,
-28,
-23,
41,
-25,
-105,
6,
-58,
-21,
-40,
-10,
-18,
-21,
0,
-43,
11,
6,
-6,
50,
-9,
35,
-10,
-17,
-40,
-36,
-58,
22,
45,
21,
39,
9,
-52,
-18,
-35,
-10,
-23,
-26,
-27,
-19,
-72,
-59,
42,
-5,
3,
6,
-55,
14,
12,
46,
18,
-19,
-46,
-9,
-5,
-5,
-22,
-22,
-25,
-5,
-75,
-14,
14,
-39,
-31,
25,
32,
-35,
14,
-3,
50,
-37,
17,
-48,
36,
23,
5,
36,
12,
-16,
0,
8,
-54,
-41,
-27,
-35,
32,
-27,
-21,
17,
31,
32,
-15,
-22,
1,
-24,
5,
-25,
-26,
-5,
9,
-19,
15,
-15,
33,
46,
39,
57,
6,
71,
39,
35,
-12,
32,
-47,
49,
-2,
-11,
-92,
-39,
54,
-55,
-15,
-58,
-58,
1,
-20,
0,
23,
-53,
-13,
58,
47,
-39,
12,
6,
28,
-39,
78,
-6,
-33,
-48,
23,
9,
-45,
5,
-14,
18,
9,
-52,
12,
-26,
-41,
8,
56,
-58,
11,
-13,
-30,
5,
-15,
40,
-58,
-23,
-6,
44,
-34,
11,
8,
11,
23,
-21,
49,
29,
-46,
23,
-42,
-59,
-42,
38,
19,
18,
19,
45,
-27,
61,
26,
6,
-65,
-30,
-29,
79,
21,
85,
-27,
-38,
-46,
69,
-19,
68,
-38,
-53,
-69,
27,
6,
-81,
38,
25,
47,
-28,
65,
41,
27,
64,
-47,
-57,
26,
-28,
-13,
-38,
21,
1,
-82,
-49,
2,
-66,
-23,
40,
-39,
66,
-25,
17,
-22,
47,
-15,
-5,
-1,
14,
41,
17,
-83,
-48,
-17,
-45,
-8,
22,
3,
-44,
52,
29,
-29,
61,
12,
12,
0,
-19,
-10,
-16,
17,
25,
58,
-19,
34,
-27,
46,
42,
-37,
-43,
-34,
-7,
-53,
-2,
-36,
25,
-36,
13,
-9,
-6,
4,
-43,
26,
-49,
33,
15,
2,
-12,
6,
-6,
3,
18,
29,
-17,
-6,
-39,
43,
5,
-46,
-74,
-28,
-17,
-13,
-52,
-49,
12,
10,
-7,
36,
6,
-34,
43,
-23,
-37,
43,
-73,
-1,
41,
24,
-49,
41,
-22,
21,
48,
9,
-29,
0,
25,
6,
34,
17,
0,
-48,
11,
-10,
-22,
90,
-36,
-65,
-7,
-31,
1,
76,
19,
-18,
-78,
-22,
77,
22,
61,
-21,
-45,
-29,
-37,
36,
14,
-32,
52,
38,
-9,
-21,
-64,
12,
-22,
16,
9,
17,
-4,
-1,
55,
-22,
17,
-34,
-33,
21,
-34,
-53,
-9,
-6,
42,
19,
-56,
-9,
-45,
12,
29,
22,
93,
-1,
-32,
61,
0,
48,
16,
56,
-67,
5,
46,
-55,
-17,
45,
-20,
-11,
-25,
-82,
41,
-10,
34,
30,
-3,
-21,
53,
5,
31,
-47,
14,
33,
58,
24,
-3,
-19,
-21,
41,
-53,
36,
27,
26,
-24,
-35,
-8,
-38,
-3,
16,
-17,
8,
-10,
23,
20,
15,
-22,
16,
-22,
1,
37,
0,
17,
-14,
-17,
-4,
-14,
-28,
-44,
-75,
-8,
12,
4,
-6,
65,
44,
43,
-29,
-35,
34,
78,
-8,
27,
59,
3,
47,
3,
-36,
38,
29,
1,
-27,
65,
30,
27,
37,
-1,
-10,
-30,
32,
-49,
54,
31,
-5,
6,
11,
-13,
45,
-54,
-7,
-57,
40,
-28,
-11,
11,
-47,
-76,
-32,
-44,
-31,
70,
-23,
-19,
-19,
5,
13,
-30,
13,
-23,
5,
-15,
57,
-68,
-24,
-34,
-36,
-7,
21,
73,
-11,
-29,
-15,
-41,
-26,
20,
-52,
0,
-39,
16,
23,
59,
-42,
46,
37,
-8,
-31,
-42,
19,
-32,
10,
75,
-13,
-54,
43,
-95,
-76,
11,
-19,
15,
11,
-74,
27,
34,
-18,
-74,
-19,
-32,
14,
-5,
50,
38,
-47,
15,
8,
-46,
0,
55,
-8,
-9,
-40,
-7,
4,
25,
41,
-18,
11,
-68,
22,
20,
16,
9,
-22,
-36,
15,
-47
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an action brought by the county of Silver Bow against Peter J. Kelly as assessor of that county, and the defendant corporation as surety on his official bond.
Plaintiff’s complaint contains allegations to the effect that because of the willful failure and neglect of the assessor to assess property belonging to individuals and corporations, properly assessable in Silver Bow county, for the year 1920, there was lost to the county, School District No. 1, and the state of Montana, the sum of $1,412,678. A copy of Kelly’s' official bond is annexed to the complaint. The penal sum of the bond is $25,000. Plaintiff attempted to allege a cause of action against the assessor for the sum of $1,412,678, and against the surety company for the sum of $25,000, and prayed judgment accordingly. The defendants severally demurred to the complaint, both generally and specially; among other grounds of demurrer it was alleged that a misjoinder of actions appears. The court sustained the demurrers and ordered judgment for defendants on the merits. From this judgment the county has appealed.
The action • of the court in sustaining the demurrers was correct.
There is a misjoinder of causes of action. Section 9130, Revised Codes of 1921, provides: “The plaintiff may unite several causes of action, legal or equitable, or both, in the same complaint, where they all arise out of: 1. Contracts, express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same, and for an injunction to stay waste or injury thereto; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a contract, or by operation of law; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property. The causes of action so united must all appear on the face of the complaint to belong to one only of these classes and must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injnry to character or to the person.”
Manifestly this section does not authorize the joining of such causes of action as the plaintiff has attempted to state in the complaint before us. That the statutory rule has a substantial basis is well illustrated by the conditions in the present case. Here the surety company is liable for $25,000 only upon the bond; according to the complaint the assessor is liable for over $1,400,000 because of his willful failure and neglect to assess different individuals and corporations, the particulars of which are set forth in the ’ complaint. In order to defend itself in the action it would be incumbent upon the surety company to defend against each and all of the acts of malfeasance and nonfeasance alleged against the assessor. The surety company is not interested in- any liability of the assessor beyond the amount of its official bond. A separate liability of the principal cannot be joined in an action on the bond against the sureties. (State v. Kruttschhitt, 4 Nev. 178; Albie v. Jones, 82 Ark. 414, 12 Ann. Cas. 433, 102 S. W. 222; Pittsburg etc. R. R. Co. v. Wakefield Hardware Co., 135 N. C. 73, 47 S. E. 234; and see Bliss on Code Pleading, 3d ed., see. 123; 23 Cyc. 428; Cummings v. Americcm Gear & Spring Co., 87 Hun, 598, 34 N. Y. Supp. 541.)
Rehearing denied September 15, 1923.
The foregoing must not be confused with the action upon the assessor’s bond which is contemplated in section 2039, Revised Codes of 1921, which reads as follows: “The assessor and his sureties are liable on his official bond for all taxes on property within the' county which, through his willful failure or neglect, is unassessed.” Under this section and the one succeeding, it is the duty of the county attorney to commence an action on the assessor’s bond for the amount of taxes lost from such willful failure or neglect. As the action is upon the official bond, the fact that tortious acts of the assessor are involved does not militate against the rule above stated; not only is the action provided by the statute but it affects the principal and surety alike.
Plaintiff contends that the court should have entered a judgment simply dismissing the action, instead of upon the merits. Properly, a judgment of dismissal should have been entered. It is only when a judgment determines the merits of the controversy as distinguished from the merits of the pleading attacked that it may be said to be upon the merits. (Glass v. Basin & Bay State Min. Co., 35 Mont. 567, 90 Pac. 753.) But plaintiff is not injured on this score. The entry of the judgment did not preclude the county attorney from immediately commencing an action against the defendants upon the bond, nor one against the assessor upon his personal liability.
The judgment is affirmed.
Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-53,
33,
-31,
60,
-16,
-23,
41,
-3,
-18,
55,
6,
24,
4,
34,
-27,
-13,
-42,
-52,
12,
20,
-13,
-40,
-41,
-11,
-3,
9,
-12,
-2,
-57,
-19,
41,
10,
-48,
-10,
10,
13,
24,
-14,
9,
-9,
30,
10,
46,
-34,
10,
9,
10,
-86,
64,
33,
37,
-12,
34,
-14,
14,
4,
-19,
30,
-13,
-24,
39,
-3,
-3,
19,
5,
-5,
19,
-18,
-13,
-28,
-29,
16,
-7,
-4,
-22,
16,
-30,
-45,
-33,
40,
-31,
-19,
4,
6,
-14,
-22,
-21,
-20,
-7,
42,
-30,
35,
4,
13,
59,
9,
-25,
-54,
-37,
-10,
20,
-45,
0,
45,
-10,
9,
-36,
-16,
47,
5,
-23,
18,
-11,
-35,
-24,
-23,
-8,
-43,
27,
-6,
33,
39,
38,
-4,
-20,
12,
73,
-8,
8,
44,
13,
33,
4,
18,
-61,
-9,
-48,
-9,
45,
30,
-5,
29,
19,
-27,
-33,
24,
12,
-26,
-7,
-10,
-7,
32,
15,
62,
1,
-42,
58,
2,
17,
-55,
39,
4,
34,
-11,
-26,
8,
-10,
-14,
0,
50,
44,
16,
-39,
-1,
11,
3,
2,
3,
15,
26,
12,
-24,
21,
-6,
17,
1,
11,
39,
-13,
42,
27,
-40,
-19,
-16,
-33,
31,
-18,
-5,
2,
-34,
17,
-21,
-15,
13,
-44,
33,
24,
-36,
-12,
-5,
-57,
-13,
13,
-11,
-26,
5,
0,
34,
16,
-7,
16,
57,
-20,
22,
9,
-64,
-18,
-20,
33,
-60,
-13,
2,
10,
-8,
8,
-20,
9,
13,
-19,
6,
-22,
0,
-8,
-7,
-44,
-4,
-15,
-16,
0,
31,
8,
-3,
23,
30,
0,
-13,
31,
9,
-19,
7,
-13,
-2,
34,
-17,
-23,
-50,
-12,
0,
-4,
26,
-35,
48,
47,
-11,
-20,
-40,
31,
-33,
44,
5,
-2,
-29,
-9,
48,
-21,
67,
23,
43,
-39,
-21,
-41,
-36,
30,
4,
25,
-31,
27,
-26,
-19,
-37,
-1,
-31,
-13,
1,
-46,
-2,
-52,
0,
0,
20,
-42,
28,
3,
-7,
50,
13,
10,
8,
38,
3,
22,
46,
-9,
-7,
29,
4,
44,
16,
-11,
-14,
1,
-55,
26,
-2,
43,
-16,
31,
-5,
-58,
8,
23,
21,
32,
-43,
-10,
45,
10,
0,
6,
31,
17,
-13,
-40,
44,
-22,
-24,
63,
-34,
0,
37,
37,
12,
31,
-64,
16,
-36,
-15,
-41,
-5,
-1,
10,
27,
20,
-17,
50,
-20,
-13,
7,
-48,
62,
36,
-16,
-18,
14,
69,
-19,
-2,
3,
-31,
-11,
-5,
-19,
21,
26,
11,
-16,
-22,
-72,
-17,
-27,
-26,
23,
9,
-11,
-84,
7,
6,
-11,
1,
13,
12,
1,
-31,
-22,
43,
-18,
10,
42,
2,
-3,
67,
-8,
66,
-31,
58,
-31,
33,
10,
-43,
-13,
-46,
40,
-28,
26,
50,
-55,
-2,
8,
-12,
-28,
-6,
-1,
27,
11,
-24,
-30,
-43,
27,
65,
21,
-14,
36,
19,
20,
6,
22,
80,
-15,
17,
-38,
26,
17,
-20,
25,
-10,
-15,
21,
-18,
27,
8,
9,
19,
-35,
23,
-25,
6,
-44,
-11,
-6,
-20,
-28,
-30,
31,
-13,
-1,
12,
-32,
-23,
-7,
14,
-18,
-17,
-30,
-44,
-22,
-4,
-10,
-7,
1,
-21,
-36,
-25,
-35,
9,
5,
32,
8,
10,
5,
49,
-14,
5,
23,
14,
-16,
13,
39,
9,
9,
15,
-19,
5,
-37,
-7,
13,
-14,
-15,
-18,
47,
18,
-54,
57,
10,
15,
-45,
39,
33,
25,
-34,
-34,
36,
-3,
38,
15,
-15,
21,
9,
31,
51,
32,
35,
-31,
46,
29,
-45,
32,
-45,
-2,
2,
-28,
8,
28,
-44,
-8,
11,
0,
-6,
-34,
-27,
27,
-30,
5,
-8,
8,
24,
-28,
-32,
-26,
0,
5,
46,
-35,
-15,
16,
-12,
33,
85,
-21,
35,
50,
-7,
-25,
-31,
18,
-11,
31,
10,
13,
7,
-10,
-42,
-6,
19,
21,
-24,
15,
22,
-28,
40,
-30,
-28,
-1,
12,
1,
-7,
10,
-12,
-34,
32,
1,
20,
-33,
71,
19,
-6,
-33,
-25,
3,
-46,
3,
8,
-10,
-19,
-13,
-17,
75,
-48,
57,
-64,
-24,
9,
-25,
0,
-7,
-27,
13,
-52,
33,
-22,
-66,
-11,
32,
14,
-6,
2,
42,
13,
1,
22,
-39,
31,
-9,
14,
-9,
-8,
46,
15,
45,
10,
31,
36,
-45,
-11,
-21,
-5,
-67,
32,
9,
13,
-34,
0,
-56,
7,
31,
-2,
-10,
0,
8,
-10,
-10,
-14,
35,
-10,
27,
-36,
5,
5,
6,
-19,
6,
-15,
-56,
-6,
10,
4,
1,
13,
-19,
-37,
-18,
-2,
-28,
-25,
11,
-22,
-17,
19,
16,
-38,
24,
-20,
-45,
11,
-50,
19,
-17,
0,
16,
19,
30,
0,
58,
-32,
11,
-50,
12,
-4,
4,
-1,
-17,
-3,
-34,
13,
14,
41,
17,
3,
3,
-17,
-22,
31,
14,
0,
-19,
-18,
-34,
-32,
33,
-3,
0,
28,
-2,
7,
13,
-9,
0,
7,
-49,
-18,
6,
10,
-12,
-10,
-17,
-3,
-26,
-15,
-17,
23,
-3,
-11,
-5,
-3,
-1,
-41,
-22,
-20,
-25,
5,
20,
-17,
-31,
-35,
-56,
-16,
-8,
0,
0,
-77,
18,
11,
18,
-19,
40,
6,
-18,
-37,
20,
-12,
32,
-30,
3,
-16,
-70,
-4,
-31,
-62,
38,
-7,
-24,
-42,
10,
13,
55,
68,
0,
11,
8,
-73,
32,
48,
1,
-72,
3,
42,
-58,
2,
13,
0,
24,
13,
-4,
-32,
8,
-1,
0,
-26,
-12,
41,
-3,
-51,
50,
-33,
36,
11,
9,
8,
-33,
11,
11,
9,
2,
-4,
-10,
9,
17,
55,
-11,
-31,
12,
55,
28,
-34,
43,
-12,
23,
-23,
-8,
68,
13,
-20,
24,
-16,
-4,
-9,
-29,
46,
-21,
24,
50,
8,
-17,
-16,
10,
-4,
-34,
16,
-28,
-18,
-10,
24,
-8,
-26,
-8,
-7,
-17,
61,
15,
-21,
9,
0,
-32,
20,
2,
-58,
8,
-18,
-35,
25,
30,
37,
-38,
6,
0,
9,
-7,
-24,
49,
-18,
80,
-21,
75,
28,
24,
23,
8,
-21,
-45,
-17,
-29,
57,
6,
24,
23,
-34,
-3,
22,
-38,
-36,
21,
-20,
-17,
-7,
95,
6,
-44,
-51,
-18,
-15,
-6,
-43,
23,
0,
12,
3,
19,
-20,
-22,
16,
7,
-44,
-12,
8,
6,
-28,
-8,
-11,
1,
18,
19,
41,
-8,
-12,
-36,
25,
10,
27,
-35,
-46,
-18,
-12,
26,
-14,
-12,
4,
-10,
-5,
-24,
22,
-38,
4,
-12,
0,
5,
23,
-15,
51,
43,
24,
25,
29,
-24,
20,
35,
-12,
44,
49,
26,
-25,
13,
19,
-13,
-14,
-6
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The plaintiff, an employee of the defendant, while in the course of his employment fell into an elevator shaft in defendant’s store. Charging the accident to have been the result of defendant’s negligence, plaintiff brought this suit. There was a verdict for plaintiff in the sum of $5,000, upon which judgment was entered. Motion for a new trial having been denied, defendant appealed. The transcript embraces 314 printed pages, while the “briefs” contain 226. There are forty-six specifications of error. Were we to discuss them all, this opinion might rival one of the briefs in length. But as we view the case an extended discussion will not be useful to anyone.
Asserting that the complaint does not state facts sufficient to constitute a cause of action, defendant first challenged it by demurrer which was overruled. Attack upon the same ground was renewed frequently during the trial and is made the basis of many alleged errors urged upon this appeal. The complaint charges in part that at all times men tioned the defendant was the owner of and operating a drug store in a two-story brick building with basement in the city of Missoula; that in the northeast part of the storeroom on the ground floor there was at all times “an old, dangerous and out-of-date elevator owned and operated by the defendant, which ran from the basement below said ground floor to the said ground floor and second story of said building,” the power therefore being supplied by the person operating it; that there was a doorway about four to five feet in width and about six feet in height opening into the elevator shaft; that there was no gate, screen, chain or other contrivance in the doorway whatsoever; that the corner occupied by tbe elevator was dark and without any light sufficient for one to see whether the elevator cage was up, down or on the level with the ground floor; that there was no lock, device or contrivance whatsoever “by which the said cage could be made stable and fast, so that it would remain or stay even with the floor on which it was stopped, but that at said times when it was so stopped on such level it would gradually slide or creep upward about four or five feet above said floor and leave a dangerous opening between the bottom of the cage and the said ground floor”; that the elevator had been in substantially the same dangerous condition without improvement, repair or state inspection for more than ten years; and that all of these facts and conditions were known to the defendant, or by the exercise of reasonable care would have been known to him.
In a succeeding paragraph the foregoing conditions and others were charged specifically as negligence on the part of the defendant; for instance, it was charged that defendant negligently and carelessly failed and omitted to provide any light in or about the elevator or the shaft, but negligently kept the same and the surroundings dark; that he negligently failed and omitted to provide any appliance in or about the opening of the door leading to the shaft so as to prevent one from falling therein or to give one warning thereof; that he negligently and carelessly failed and omitted to provide any lock or other appliance on the elevator “so as to prevent the same from gradually slipping and creeping up above the floor when and where stopped, so as to prevent persons from falling in said shaft while and when the bottom of the cage would so get above the floor where stopped.”
It was then alleged that as a direct and proximate result of these acts of negligence the plaintiff, while in the exercise of due care, and while acting within the scope of his authority and in the line of his employment, and while working on the ground floor in the northeast corner thereof, fell into “said dark and unguarded opening down into said ele vator shaft,” a distance of about sixteen feet, the injuries complained of resulting.
The defendant insists that the complaint is fatally defective for the reason that it does not show any causal connection between any alleged act of defendant and the injuries sustained by plaintiff. In other words, the precise attack the defendant makes in this respect is that it is not alleged specifically that the aperture between the ground floor and the bottom of the elevator at the time the accident occurred was caused by any particular negligence of defendant.
The complaint was sufficient' against a general demurrer. It appears from its allegations that the defendant was negligent, that plaintiff was injured, and that the negligence charged was a proximate cause of the injury. No other reasonable inference can be drawn from the allegations of the complaint but that the injury suffered would not have happened but for the negligence alleged, and hence the causal connection between the two appears. In other words, it is reasonably clear from the allegations that if the cause had not existed the injury would not have occurred. (Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont 342, 197 Pac. 252, and cases cited.) The pleading here comes within the rule laid down in Stricklin v. Chicago, M. & St. P. Ry. Co., 59 Mont. 367, 197 Pac. 839, wherein the court said: “It is the rule of pleading announced by our Code that the facts constituting plaintiff’s cause of action must be set forth ‘in ordinary ana concise language.’ (Rev. Codes, sec. 6532.) The rule requires the facts to be stated by direct averment so that the party who is to answer may understand the specific acts of remissness with which he is charged and that material issues may be framed for trial.” If the defendant had complained that he was unable to properly prepare his defense because not apprised of the precise details of the act or acts of negligence upon which plaintiff intended to rely at the trial, he might have moved to have the complaint made more spe eific, or have called for a hill of particulars, neither of which he did.
Pointing out what they claim to be a fatal defect in the complaint, defendant’s counsel say that it does not even allege that at the time plaintiff fell into the basement — an accident undisputed and properly alleged — an opening existed between the building floor and the elevator floor. This objection is hypercritical. An obvious answer to it is that if there had been no hole there plaintiff would not and could not have fallen into the basement.
They also object that “the complaint is fatally defective in failing, to state within what time the defendant knew of any defects and dangerous condition to exist, or within what time defendant should have known.” This objection also is without merit in view of the recitals of negligence followed by the allegation that the elevator contrivance and apparatus had been in substantially the same dangerous condition without improvement, repair or state inspection for more than ten years, and “that all the facts and conditions herein stated were known to defendant, or by the exercise of reasonable care would have been known to him.” Thus the complaint is brought within the doctrine announced in Hollingsworth v. Davis-Daly Estates Copper Co., 38 Mont. 143, 99 Pac. 142. In this particular the complaint was not vulnerable to a general demurrer; if the defendant required more specific information he should have made proper demand for it.
The defendant’s answer, after admitting some of the allegations of the complaint, consists otherwise of a general denial, followed by two affirmative defenses. In the first of these defendant pleads that plaintiff assumed the risks of his employment, alleging that at the time of the accident plaintiff went to the elevator for the purpose of entering and operating it and observed, knew and appreciated the position of the elevator and the danger incident to entering the same in its then position, the floor of the elevator being above the floor of the store, or in the exercise of ordinary care he might and should have known and appreciated the same; that as plaintiff attempted to enter the elevator he accidentally lost his position and fell beneath the same, causing him some injury. In the second defense the defendant pleads that the plaintiff was guilty of contributory negligence. In this defense the defendant avers that at the time of the accident the plaintiff went to the elevator for the purpose of entering and operating the same, and observed that the elevator was raised so that the floor thereof was above the main floor of the store; that upon observing the position of the elevator plaintiff negligently endeavored to enter the elevator from the floor and in attempting so to do lost his position and fell between the floor of the elevator and the main floor to and into the basement under the elevator. Further allegations are to the effect that there was a safe way in which the plaintiff might have proceeded, but instead of adopting the safe way the plaintiff negligently failed and omitted to use the same and deliberately chose the more dangerous course; “that if there was any negligence which caused the elevator to be in the position it was in at the time the plaintiff attempted to enter the same it was due and caused by the plaintiff himself; that plaintiff caused said elevator to be in said position at said time; that if there was any negligence that by reason thereof and of the premises, said injuries to the plaintiff were proximately due to and caused by his contributing fault and negligence.” The affirmative defenses were denied by plaintiff.
It is plain that the defendant was not misled by any allegations or lack of allegations made by the plaintiff in his complaint. The defendant was fully prepared to defend the ease against the allegations of the complaint and in every respect against the evidence put forth by plaintiff. In confirmation of the foregoing it is interesting to note that as a matter of fact the defendant was at the store at the time of the accident and himself examined the conditions obtaining at the elevator contemporaneously with the happening o£ the accident. This is a good illustration of the common-sense rule that, unless there is a want of substance in a complaint upon the particular issue involved and a failure of proof in consequence, a ease should not be reversed at the instance of a defendant who has not been deprived of a substantial right, but who, on the contrary, has been enabled to and has defended the action upon the merits of the cause irrespective of the technical condition of the pleadings. The idea that a disappointed litigant who has had a fair and impartial trial upon the merits of the cause may obtain a new trial because of the absence of a nonessential allegation, or for some mere defect in a pleading, is archaic, and has been relegated to the past in this jurisdiction. (See secs. 9164, 9191, Rev. Codes 1921; Bogness v. Northern Pac. Ry. Co., 59 Mont. 373, 196 Pac. 989; Grant v. Nihill, 64 Mont. 420, 210 Pac. 214.)
Briefly, the contentions of the respective parties as to how the accident occurred may be summed up as follows: The plaintiff testified that as far as he knew he was the last one Avho used the elevator, and he applied the lock. The floor of the elevator was then level with the first floor of the building. The occasion of its use then was that he and Miss Saderstrom, a clerk in the defendant’s employ, had brought from the basement some boxes of goods Avhich they were packing to send away. When the elevator stopped one of the boxes rolled off the elevator to the floor a short distance from the elevator shaft. Then the plaintiff attended to some other errands, including several trips to the postoffiee. About half-past 3 in the afternoon M'iss Saderstrom and himself were packing a box for export when it became necessary to obtain the box which had rolled off the elevator. In stooping for this box, the dim outline of which he could see, visibility in the room being difficult, he either stumbled or slipped, plunging forAiard into the elevator shaft, the elevator having moved up or having been moved up a considerable distance above the floor. On his part, defendant admits that at the time of the accident the elevator was thirty or forty inches above the floor. He contends that the plaintiff left it there. He says he did not leave it there, and Miss Saderstrom says she did not. Nobody had used the elevator except plaintiff,' defendant and Miss Saderstrom. There was nobody else to use it. Defendant’s theory is that plaintiff “put his hands on the top of the elevator and was going to jump on top of the elevator and his feet slipped underneath and thus he went down the elevator shaft.” It is contended by counsel for plaintiff that if this had been the manner of the occurrence plaintiff necessarily would have fallen upon his back and they say the physical facts show that this was not the manner of the occurrence because all of plaintiff’s wounds were upon the front part of his body. The front part of his head was bruised, his collar-bone was broken, his left arm was broken at the wrist, and his body in front was otherwise bruised. Plaintiff says it was dark about the elevator shaft so that he could not see the aperture made by the elevator being above the floor. Defendant says it was light and what plaintiff did was negligence on his part, also, as has been adverted to, that plaintiff assumed the risk. All of these questions of fact properly were submitted to the jury and by them resolved in favor of plaintiff. Upon every essential point the evidence is in conflict. Whether the jury should have found the other way is not material here, even if we should think they might well have done so. (Stillinger v. Kelly, 66 Mont. 441, 214 Pac. 66.)
But defendant argues that the evidence on plaintiff’s part is insufficient to sustain the verdict. The point is not well taken. Considering it most favorably to defendant, it must be said that there is a fair inference from the evidence that the negligence of the defendant was the proximate cause of plaintiff’s injuries. “At least we are satisfied that it was a matter properly submitted to the jury for its determination.” (Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940.) Other language of the Birsch Case is appli cable to this: “We think it may be said to be the general rule, sustained by the great weight of authority, that ‘where the primary cause of an injury is a pure accident, occasioned without fault of the injured party, if the negligent act of the defendant is a co-operating or culminating cause of the injury, or if the accident would not have resulted in the injury excepting for the negligent act, the negligence is the proximate cause of the injury, for which damages may be recovered.’ (Goe v. Northern Pac. Ry. Co., 30 Wash. 654, 71 Pac. 182.) This doctrine has been directly recognized and applied in this state. (Lundeen v. Livingston E. L. Co., 17 Mont. 32, 41 Pac. 995; Cannon v. Lewis, 18 Mont. 462, 45 Pac. 572.) In Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130, the same rule is stated as follows: ‘Where two causes contribute to an injury, one of which is directly traceable to the defendant’s negligence, and for the other of which neither party is responsible, the defendant will be held liable, provided the injury would not have been sustained but for such negligence.’ ”
The question as to whether plaintiff was guilty of contributory negligence was submitted to the jury and properly so. The same may be said as to the defense of assumption of risk. The court seems to have been duly mindful of the rules on this subject as laid down by this court in Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45, Hollingsworth v. Davis-Daly Estate C. Co., supra, Cameron v. Judith M. & C. Co., 61 Mont. 118, 201 Pac. 575, and Grant v. Nihill, supra.
Defendant complains of the action of the court in giving certain instructions and in refusing to give others to the jury. There are twenty-two assignments of error on this score. Twenty-eight instructions were given to the jury by the court. In none of these was error committed against the defendant. On the contrary, if any criticism were warranted it would be because some of the instructions lean too strongly in defendant’s favor. As to the instructions offered by defendant which the court refused to give, we find that each is either covered by those given, or inapplicable under the evidence, or would have been erroneous if given.
It is contended that the verdict is excessive. Plaintiff was twenty-two years old at the time of the accident. Prior to that, so he testified, he had worked for the Northern Pacific at one of its roundhouses for about sixteen months. In that employment he shoveled coal and cinders and wiped engines. He had worked in the mines at Philipsburg for over eleven months. He said: “My work there in the mines was pretty heavy work; they had ten different tunnels and one shaft; I had to go through all of those with the steel — carried the steel on my back to the blacksmith-shop; I worked at that for three months, and when the tunnels there got so far from there that I couldn’t make the rounds they changed me, and put me to mucking, and they put two men on the same job that I had; and I was mucking inside for about three months; and then I started to run the car, and then the last month I sorted ore. ’ ’ Pie went to Seattle where he worked in the shipyards for two months. All the while he drew a man’s wages.
When he fell down the elevator shaft he lost consciousness; when he revived the morning after the accident he was at home in bed. He testified that his head was bruised and cut, collar-bone broken, right arm at the wrist fractured, right leg and ankle injured, and his body otherwise bruised. He was confined to his bed for three weeks. He said: “My neck was stiff and over to one side, and I couldn’t move my head without it hurting me — and I didn’t notice the pain so much in my arm as I did in my leg' at first — the leg and neck bothered me most for a While, and then a couple of days after that it started to bother me, my arm started to bother me worse then, and they got medicine to put on it and from the time they put that medicine on I started to hollering about 6 o’clock at night, when they started putting it on, and I hollered all night long, with that medicine in there * * * and they put something on it to take the pain out, and they gave me morphine— that was about the third night that they gave me morphine, and they gave me morphine, then, for three or four days, to make me sleep, because I was hollering all night, most of the time, and my folks couldn’t sleep, and when I got so that I kept begging for morphine all the time, why he wouldn’t give it to me, and said I couldn’t have no more. * * * When I first woke up my arm was all bandaged up, and it was swollen so that they couldn’t do nothing with it for about three days, and he comes down, and they took me up to the office in the car, took an X-ray picture of the arm, and he told me that they would have to break the wrist over, and he said he would be down and bring another doctor with him when he come, and I said all right, and they came down and put me to sleep and they broke it over, and then I had to go back three or four different times to the office again and have X-ray pictures taken of it after they broke it over, and the pictures showed the bones was crossed and had the cords of my fingers pinched in there so that I couldn’t wiggle my fingers, and so they broke it over again, and the last time they broke it over it caused the flesh on the back of my hand to dry, and it dropped off the bone, and then they had to operate on it in order to limber my fingers so I could move my fingers." * * * I suffered pain all the time during this period; I was in pain all the time; 'I was in pain and I couldn’t put my foot on the ground or anything for about a month before I could put any weight on my foot at all, on my right leg. * * * As to my ability to get around and things of that kind, well, I had my wrist strapped fast to me, and my left shoulder I couldn’t use, or arm or anything to help me around, and whenever I would go up town and slide my foot along I used to have to take my sister along to help me from falling over. I also suffered from cramps during all of this period.”
There was testimony tending to show that as a result of the accident plaintiff’s right wrist and consequently right hand and fingers are seriously and permanently weakened; that his right leg is atrophied, there is a contraction of the muscles and ligaments at the ankle joint, and inability to flex the foot in a normal way; that the sciatic nerve is affected. The testimony tended to show that by reason of the injuries to his wrist and hand plaintiff’s earning capacity is permanently impaired. Plaintiff lost employment for a number of months. Necessary disbursements because of the injuries to the extent of $451 were shown. Much of this testimony was combated by defendant, but this too the jury passed upon. From the record we cannot say the verdict is excessive. On this point nothing need be added to what this court has said in Nilson v. City of Kalispell, 47 Mont. 416, 132 Pac. 1133, and Hollenback v. Stone & Webster Engineering Corp., 46 Mont. 559, 129 Pac. 1058.
Other assignments of error we deem without merit.
The judgment is affirmed.
Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
1,
15,
12,
1,
50,
-57,
-30,
6,
-10,
38,
-7,
48,
-11,
-41,
-27,
-1,
-12,
1,
22,
-1,
-1,
-55,
-17,
-25,
-20,
-6,
-5,
-15,
-38,
52,
56,
8,
7,
-31,
-26,
69,
53,
15,
-10,
-32,
-11,
21,
97,
-35,
23,
32,
65,
1,
69,
38,
25,
6,
4,
-7,
-4,
-30,
-6,
52,
-7,
49,
13,
21,
57,
-32,
61,
-4,
24,
9,
-44,
-18,
-24,
68,
12,
-46,
-5,
-25,
-57,
23,
-65,
-25,
-33,
-2,
43,
-36,
-25,
21,
-16,
8,
-52,
1,
-9,
10,
31,
7,
10,
11,
-42,
-8,
-21,
-24,
-48,
-22,
-9,
-14,
15,
-20,
4,
-1,
37,
23,
-25,
56,
-20,
27,
-29,
12,
32,
15,
-45,
27,
32,
-1,
-36,
-15,
-51,
-10,
-4,
-1,
30,
16,
-45,
100,
-29,
55,
-41,
-45,
0,
-1,
4,
18,
6,
5,
31,
26,
-17,
17,
-52,
41,
-10,
9,
5,
21,
1,
6,
36,
-20,
-48,
8,
17,
15,
46,
10,
26,
-7,
19,
-4,
-16,
-27,
16,
-12,
16,
-26,
-6,
-29,
81,
18,
0,
-16,
-32,
-22,
-24,
0,
40,
-55,
-44,
-29,
52,
-18,
19,
-24,
-22,
-19,
-48,
-16,
-28,
-2,
-20,
13,
47,
-23,
-7,
-20,
5,
6,
3,
27,
-41,
8,
23,
10,
4,
22,
-23,
-36,
8,
-45,
-30,
-51,
-6,
-18,
12,
14,
-42,
6,
-21,
-44,
37,
-27,
-43,
-34,
-44,
-7,
13,
-38,
54,
-20,
8,
-44,
34,
0,
37,
13,
-44,
-14,
-43,
19,
-39,
-28,
-34,
-23,
20,
6,
10,
6,
16,
-24,
13,
34,
-45,
-46,
48,
-20,
7,
-6,
40,
1,
-37,
-22,
-26,
-5,
15,
58,
33,
16,
-37,
-37,
4,
33,
44,
-50,
7,
-17,
11,
11,
-12,
6,
20,
23,
-66,
-8,
6,
-51,
-29,
2,
44,
-12,
28,
24,
-67,
-4,
-60,
-33,
-30,
-13,
11,
57,
-44,
-13,
11,
-13,
-4,
5,
15,
3,
24,
53,
1,
21,
48,
-10,
3,
44,
-19,
4,
14,
-65,
53,
-14,
76,
-50,
39,
-2,
10,
22,
7,
-8,
61,
16,
-37,
24,
1,
27,
27,
-57,
-64,
32,
14,
11,
-10,
-2,
12,
-53,
10,
-13,
30,
-21,
59,
4,
-14,
1,
22,
-9,
12,
-39,
-58,
-25,
-43,
-29,
3,
29,
-39,
-28,
11,
-8,
7,
-27,
13,
7,
-23,
85,
18,
-50,
3,
-47,
-4,
-13,
-6,
-16,
-40,
19,
-53,
-35,
39,
38,
10,
-6,
-23,
18,
-3,
2,
16,
-23,
24,
-15,
-23,
5,
-8,
8,
4,
23,
8,
-13,
15,
-21,
-28,
8,
30,
-2,
6,
24,
-17,
-28,
46,
0,
59,
9,
22,
0,
-46,
-13,
-1,
4,
-18,
32,
-19,
-35,
9,
12,
-13,
-13,
-31,
-6,
-57,
-37,
53,
-5,
21,
36,
51,
7,
9,
3,
66,
-6,
26,
13,
22,
-5,
4,
-55,
66,
8,
-47,
40,
33,
-49,
10,
-55,
42,
-22,
12,
-6,
-8,
59,
14,
33,
19,
-39,
-13,
-27,
-6,
16,
96,
54,
-37,
-3,
11,
-2,
-17,
25,
-4,
56,
-4,
-71,
-58,
3,
10,
35,
-20,
-49,
-64,
-40,
-35,
0,
15,
-54,
-1,
-6,
-14,
82,
-43,
20,
31,
17,
-14,
5,
32,
38,
-12,
-12,
19,
-9,
-2,
36,
-32,
5,
-29,
-23,
25,
-12,
15,
3,
-18,
-15,
0,
7,
41,
-21,
10,
-54,
63,
-32,
51,
33,
-13,
-16,
-34,
59,
18,
29,
57,
42,
0,
34,
0,
-5,
-20,
26,
-16,
13,
31,
8,
-37,
-3,
17,
54,
2,
-15,
50,
-7,
-74,
47,
-12,
5,
-30,
-65,
-23,
41,
-7,
7,
29,
0,
16,
-14,
-56,
-13,
7,
18,
14,
37,
-44,
-31,
16,
-10,
35,
34,
-13,
15,
2,
14,
-43,
-33,
1,
48,
16,
45,
-29,
-29,
64,
-7,
-11,
-66,
-23,
-22,
-59,
34,
-56,
-8,
41,
9,
29,
-2,
9,
-25,
-21,
-13,
-41,
-31,
-17,
-58,
-28,
31,
17,
-42,
7,
20,
35,
43,
-22,
-9,
25,
36,
43,
2,
-21,
-14,
13,
61,
7,
-1,
35,
3,
44,
-12,
55,
18,
-7,
50,
-15,
-43,
-60,
48,
10,
-13,
14,
63,
-4,
-62,
-2,
-20,
28,
50,
-16,
25,
49,
-50,
19,
-4,
-1,
-59,
20,
-16,
16,
1,
25,
-15,
17,
-20,
0,
-21,
-46,
-16,
46,
24,
26,
62,
34,
-12,
-39,
-46,
16,
-33,
45,
12,
-24,
-8,
23,
-21,
-35,
-6,
2,
-24,
-31,
-9,
-5,
12,
-46,
-14,
-36,
-36,
-3,
-27,
-8,
-21,
-29,
22,
17,
38,
21,
25,
-35,
-61,
-23,
16,
-57,
53,
-52,
-5,
59,
-8,
21,
52,
-29,
0,
-15,
-7,
26,
-32,
8,
-32,
22,
27,
-4,
-58,
-17,
-42,
14,
21,
-17,
-6,
32,
-15,
34,
-21,
-33,
-1,
47,
-49,
-32,
-16,
14,
-4,
-9,
-5,
-44,
16,
0,
-19,
0,
1,
-14,
-5,
-25,
29,
-14,
43,
24,
65,
53,
10,
16,
20,
-13,
-21,
0,
-8,
0,
54,
-29,
35,
-3,
-21,
14,
24,
27,
-29,
-10,
5,
18,
-15,
-25,
-25,
-6,
0,
17,
11,
-2,
8,
-33,
13,
-7,
-7,
-55,
-14,
27,
-40,
-35,
1,
-13,
35,
7,
3,
-13,
-37,
-2,
11,
-18,
6,
-22,
35,
31,
25,
-34,
25,
45,
-51,
9,
-15,
26,
22,
-27,
5,
19,
-37,
3,
37,
3,
8,
59,
24,
-9,
28,
-55,
4,
-1,
-18,
-2,
-15,
-19,
2,
8,
10,
18,
-2,
-41,
9,
-10,
-6,
82,
5,
-13,
-18,
14,
11,
1,
-29,
5,
10,
16,
31,
-19,
-4,
-32,
-38,
-46,
-45,
-15,
17,
13,
-39,
-3,
19,
3,
53,
19,
6,
7,
7,
15,
-37,
32,
7,
26,
0,
0,
75,
-57,
63,
15,
6,
-61,
26,
47,
-8,
0,
5,
-39,
-1,
-31,
44,
-23,
-12,
72,
-3,
4,
22,
4,
-3,
-61,
5,
-12,
-18,
91,
44,
-18,
-56,
9,
-35,
-4,
-9,
38,
-10,
-45,
37,
53,
4,
3,
-14,
-46,
-3,
-53,
-15,
-1,
12,
1,
-14,
45,
-18,
-34,
-26,
-7,
0,
12,
-12,
-56,
40,
-17,
-23,
5,
25,
37,
-10,
-1,
22,
21,
30,
-17,
-14,
0,
-37,
-12,
-14,
-40,
1,
-7,
17,
-36,
30,
27,
-8,
28,
-23,
-17,
5,
-3,
33,
8,
3,
24,
3,
31,
1,
3,
-14,
43,
3,
-11,
-23,
0,
-7,
-8,
-6,
-6,
-47
] |
MR. COMMISSIONER BENNETT
prepared the opinion for the court.
In August, 1909, plaintiff, Yalley Mercantile Company, a corporation, and defendants Myrtle L. and Frank H. Bailey, had some oral negotiations relating to the sale by plaintiff to defendants of certain real estate situate in Ravalli county, Montana. As a result of these negotiations, defendants paid to plaintiff in cash a certain sum of money and made, executed and delivered to plaintiff their promissory note for the balance of the amount agreed upon as the purchase price of the premises. Defendants thereupon entered into and have remained in possession thereof until the present time. No deed was delivered. In 1919, the note not having been paid, plaintiff demanded in writing payment or possession of the premises, tendering a deed to be delivered upon payment of the note. Payment was not made, and this action was commenced to obtain the possession of the premises.
By way of defense the answer in effect set up that the sale of the premises was consummated upon the delivery of the cash and the note; that the transaction was completely settled thereupon; that the note was given and accepted as payment of the amount which was not paid in cash; and that defendants have the complete equitable title to the premises and are entitled to the possession thereof. The affirmative matter in the answer was denied. The case was tried to a jury, which was instructed as to the issue of payment. A verdict was returned in favor of defendants, and judgment was entered thereon. A motion for a new trial was overruled, and plaintiff appealed from the judgment.
We have examined all the specifications of error and find nothing which warrants a reversal of the judgment.
The case was tried and determined on the theory that the only issue to 'be passed upon was whether or not the note was given and accepted as payment. Plaintiff takes the posi tion that a note is not payment until it is itself paid. From this premise it is argued that the facts pleaded do not show that defendants are entitled to the possession. We think that neither the premise nor the conclusion is correct. It has been said: “An equitable title arising out of a contract for the sale of land is a defense to an action instituted to recover the possession of the land, the subject of the contract.” (Tibeau v. Tibeau, 19 Mo. 78, 59 Am. Dec. 329; and see 15 Cyc. 74.)
In discussing certain phases of that doctrine the supreme court of California, in Love v. Watkins, 40 Cal. 547, 6 Am. Rep. 624, said: “Upon the execution of a contract to convey, the vendee becomes in equity, the owner of the land. His estate, however, is subject to be defeated if he fails to comply with his agreement. After he has fully performed, he is, in equity, regarded as the absolute owner of an indefeasible estate, and the vendor is a naked trustee, having no interest, but charged with the simple duty to convey to the vendee upon demand. Equity regards the vendee as the owner, upon the principle that it considers that as done which ought to be done. Now, it seems to me that while counsel recognize the fact that he is, in equity, regarded as the owner, they must suppose it to be in some different sense from which he is regarded as owner at law, when he has the legal title. But this is not so.He is supposed, for the purposes of courts of equity, to have acquired, and to hold the title. They will compel the conveyance of the legal title to him, because, at law, his equitable title is not recognized. But wherever it is recognized it constitutes ownership. ’ ’
Plaintiff cites a number of authorities for the proposition which is stated in the last quotation that “his estate, however, is subject to be defeated if he fails to comply with his agreement.” With these authorities we would probably agree if the facts brought the case within the rule. In order to apply that rule counsel are put to it to establish that the note was not accepted as payment. In other words, if the note was accepted as payment the contract was fully performed and immediately defendants became entitled to a conveyance of the legal title. If it was not given and accepted as payment, the defendants were then either without the exception or the rule, whichever it may be termed, and could not defend this action.
The sole question which remains, therefore, is as to whether or not the note was given and accepted as payment. Where such is the agreement, it will be held that the note is an ex-tinguishment of the precedent obligation, whether the note is afterward paid or not. (See 21 R. C. L., p. 72.) Obviously, where there is no such agreement, the obligation will not be extinguished. (See United States Nat. Bank v. Shupak, 54 Mont. 542, 172 Pac. 324.) In that case this court, considering the question of whether a check was payment, said: “A check is merely an order for money and in the absence of any agreement to the contrary its acceptance in discharge of an indebtedness is conditional upon its payment.” There can be no distinction between a cheek and a note in this respect. We think that as to both propositions the last quotation is a correct statement of the rule. However, when there is any testimony which raises the issue, the ultimate determination thereof must be left to the proper officers as a question of fact. (21 R. C. L. 82.) In this instance the jury did determine that issue in favor of defendants.
If there was sufficient testimony to support that finding, we cannot disturb it. We are of the opinion that the testimony was sufficient. The officer of plaintiff corporation who transacted this business for the company testified by deposi tion. There were two depositions by this witness read, both of which were taken at plaintiff’s instance. In one he stated unequivocally that the note was given and accepted as payment and outlined the bookkeeping methods employed by plaintiff. "While these methods are not conclusive of the question, they are susceptible to the inference that it was the company’s intention to complete the sale in that manner, and that as far as title to the premises was concerned it was complete in defendants upon delivery of the note, subject only to the company’s liability to convey the bare legal title. 1 "When it was learned that the witness had so testified, plaintiff got in touch with him by correspondence, and as a result he deposed, that the note was only taken as an evidence of the indebtedness. The deposition given last in time was used by plaintiff, and the1 one given first was used by defendants. From these statements the jury could have found either way. The conflict was resolved in defendants’ favor.
Rehearing denied July 16, 1923.
It is our opinion that taking the view which the jury must have taken that the note was accepted as payment, the complete equitable title vested in defendants and they should prevail.
We recommend that the judgment be affirmed.
Per Curiam :
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
Affirmed.
|
[
1,
25,
-27,
-2,
35,
-3,
81,
23,
18,
58,
10,
48,
23,
-2,
16,
13,
-1,
-30,
26,
-11,
-84,
-34,
-18,
-52,
7,
20,
-22,
3,
18,
60,
14,
17,
-35,
38,
-28,
22,
-29,
-23,
11,
5,
51,
55,
68,
19,
-8,
-3,
-32,
-59,
-17,
-15,
39,
-53,
-10,
12,
-31,
-25,
-19,
-27,
-12,
-8,
-30,
-77,
22,
2,
-24,
-26,
42,
-36,
0,
-31,
-31,
24,
10,
-25,
27,
-11,
-39,
-18,
0,
-37,
34,
-22,
6,
-31,
-28,
-29,
3,
-39,
48,
28,
-44,
24,
17,
43,
-5,
25,
22,
-13,
36,
10,
12,
-30,
-30,
26,
-19,
-8,
-32,
0,
-18,
32,
-22,
4,
-24,
-66,
-27,
15,
3,
-13,
-8,
-1,
9,
-5,
-7,
-12,
-51,
11,
-24,
45,
57,
28,
19,
-37,
-32,
39,
-38,
-6,
-4,
-11,
-5,
10,
-26,
-43,
-7,
-12,
8,
-5,
3,
-7,
-90,
-18,
3,
44,
27,
48,
-23,
-28,
58,
-40,
-14,
-45,
40,
-21,
10,
-39,
26,
77,
3,
10,
-22,
-11,
14,
-18,
-37,
-16,
45,
32,
42,
-32,
36,
-10,
7,
14,
-24,
-3,
27,
34,
-24,
34,
17,
-2,
-28,
26,
-24,
58,
-43,
-6,
-10,
0,
-28,
-6,
-4,
-25,
-13,
-22,
-37,
21,
59,
-1,
42,
58,
-48,
-17,
-29,
-5,
-24,
-3,
65,
-7,
-8,
-33,
-9,
-26,
-38,
12,
-16,
-32,
49,
-20,
37,
17,
-27,
42,
-17,
15,
12,
-16,
-15,
-51,
-30,
3,
13,
-38,
-49,
-51,
13,
-18,
-30,
-20,
-18,
25,
-24,
-32,
-41,
53,
10,
-6,
18,
5,
-45,
-58,
18,
36,
-25,
-6,
-2,
-46,
23,
-28,
-10,
46,
17,
1,
-8,
55,
-22,
-18,
0,
2,
-30,
-24,
3,
-18,
24,
20,
-22,
-8,
-5,
52,
-16,
15,
-15,
6,
-6,
-23,
-2,
39,
26,
18,
13,
-1,
-39,
-46,
30,
33,
-25,
46,
-18,
14,
-19,
-30,
-17,
52,
-24,
-50,
-17,
32,
-33,
-16,
23,
-18,
82,
23,
29,
-1,
36,
19,
41,
-11,
-33,
-2,
63,
-16,
-6,
22,
-28,
0,
56,
-61,
-1,
-11,
16,
19,
25,
8,
52,
57,
-27,
-6,
-46,
19,
-35,
-41,
-71,
22,
-11,
-6,
-15,
-23,
-26,
23,
14,
18,
11,
-32,
-5,
53,
-39,
-26,
2,
1,
1,
14,
-2,
-30,
-88,
32,
0,
-15,
-62,
55,
-3,
-39,
9,
15,
53,
5,
-22,
-18,
5,
-24,
-54,
18,
-2,
66,
12,
-33,
-26,
-43,
-10,
-42,
10,
35,
-34,
4,
-30,
-31,
-7,
-38,
-52,
45,
4,
-50,
-68,
-42,
-7,
48,
11,
10,
-13,
-4,
43,
-28,
-26,
7,
15,
-21,
28,
3,
-44,
-10,
-39,
53,
-14,
-25,
30,
14,
-29,
0,
-18,
-4,
73,
34,
-10,
16,
15,
13,
16,
18,
1,
56,
-7,
5,
6,
-1,
16,
55,
82,
-21,
0,
-68,
59,
-26,
32,
52,
29,
-25,
41,
-28,
-6,
53,
20,
14,
17,
-3,
-37,
36,
-40,
-4,
-22,
48,
-31,
27,
44,
0,
-8,
-5,
-83,
-42,
22,
-6,
33,
-33,
52,
32,
-30,
-51,
-37,
-37,
6,
-1,
26,
3,
25,
23,
-10,
39,
33,
-40,
-45,
59,
18,
49,
56,
-41,
25,
11,
57,
3,
32,
63,
14,
13,
-39,
-28,
-44,
-15,
27,
10,
-4,
-22,
-77,
13,
16,
33,
16,
13,
22,
54,
29,
-26,
-49,
26,
10,
43,
-32,
60,
8,
-14,
-4,
0,
-16,
-4,
42,
23,
-28,
29,
53,
-34,
3,
24,
33,
54,
12,
-11,
55,
0,
30,
20,
-9,
43,
-40,
-38,
-42,
-22,
-27,
-30,
-18,
-31,
47,
-6,
-41,
-28,
-19,
-53,
-2,
4,
45,
12,
3,
23,
16,
11,
-17,
-15,
-23,
14,
12,
-17,
-9,
41,
-8,
11,
-70,
3,
24,
-32,
-12,
-32,
30,
9,
-17,
19,
0,
45,
15,
7,
3,
-66,
55,
-9,
0,
12,
31,
30,
1,
-9,
-57,
10,
-42,
11,
23,
4,
58,
-6,
-22,
32,
-15,
-6,
0,
-86,
8,
14,
-24,
38,
-4,
-1,
-51,
42,
52,
-44,
-7,
28,
3,
-9,
-7,
0,
3,
0,
13,
32,
44,
-24,
-34,
-21,
24,
-12,
28,
-25,
-14,
5,
24,
-41,
9,
-2,
-10,
4,
16,
37,
46,
-2,
22,
-33,
57,
50,
-31,
-25,
20,
-28,
12,
21,
-12,
-43,
-9,
39,
-8,
-3,
14,
41,
-20,
-6,
67,
-41,
-21,
1,
-34,
18,
-37,
-3,
4,
-62,
12,
-22,
-19,
-42,
-16,
21,
-20,
55,
-27,
23,
19,
-45,
66,
-28,
6,
0,
72,
-12,
-10,
7,
19,
38,
-13,
27,
37,
25,
3,
-5,
-7,
-33,
-31,
-17,
8,
31,
-14,
-2,
5,
-10,
-17,
-2,
40,
6,
38,
30,
19,
12,
-44,
0,
-36,
-11,
34,
37,
-14,
21,
5,
0,
-45,
-53,
-20,
-45,
-23,
-36,
-41,
-9,
45,
19,
23,
3,
27,
10,
43,
-49,
-54,
-16,
-8,
-24,
-8,
15,
-2,
74,
-34,
18,
-47,
-37,
-59,
-36,
0,
11,
-15,
-21,
-22,
-55,
36,
25,
26,
-3,
-12,
34,
27,
21,
-40,
-32,
-2,
-11,
21,
41,
-32,
41,
14,
-56,
-15,
-15,
10,
3,
42,
26,
-8,
-21,
-120,
50,
16,
-31,
-49,
-20,
-64,
13,
8,
-5,
29,
-6,
-9,
-57,
-51,
22,
38,
-5,
-15,
30,
-18,
-37,
-15,
18,
-3,
29,
-34,
-16,
-18,
-10,
39,
9,
0,
-13,
0,
34,
63,
-28,
-16,
-12,
11,
37,
4,
42,
13,
41,
28,
25,
52,
-11,
52,
52,
-14,
9,
-25,
29,
-29,
17,
-1,
-6,
-8,
14,
-13,
-53,
-48,
12,
-6,
-35,
18,
-75,
9,
2,
13,
-10,
24,
12,
4,
18,
1,
16,
60,
61,
59,
-61,
3,
-35,
-15,
-6,
-14,
-51,
23,
16,
23,
14,
-12,
-43,
0,
-13,
1,
19,
-1,
28,
-83,
43,
3,
16,
16,
-3,
21,
-9,
-17,
-32,
-18,
-3,
86,
7,
-15,
29,
4,
-33,
3,
20,
-29,
77,
42,
48,
-5,
-37,
-67,
-19,
1,
-45,
-23,
-12,
-13,
-93,
33,
-11,
42,
-33,
28,
-3,
25,
8,
-21,
8,
-17,
14,
41,
-1,
-27,
31,
-1,
5,
-32,
-7,
40,
44,
14,
-11,
-2,
-39,
16,
-7,
-41,
34,
11,
-2,
26,
3,
0,
-32,
-6,
-36,
-44,
-48,
9,
-70,
24,
38,
8,
-40,
-16,
-44,
61,
10,
-32,
-6,
8,
40,
-12,
43,
-3,
-17,
3,
55
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In August of this year a complaint was lodged with the police court of the city of Bozeman, charging that Frank E. Davis and Albert B. Erickson were carrying on the business of operating auto taxis and auto busses for hire within the city, without first having procured the license therefor required by Ordinance No. 535 of the public ordinances of the city. The police court sustained a general demurrer to the complaint, discharged the accused and dismissed the proceeding, whereupon the city applied to this court to exercise its power of supervisory control, and annul the order of the police court. An order nisi was issued, and upon the return a motion to quash was interposed, and the cause submitted for final determination.
The complaint filed in the police court states a cause of action if Ordinance No. 535 is in effect, but the validity of the ordinance is assailed upon numerous grounds, and the most important of these will be considered in order.
1. It is contended that the ordinance is a revenue measure and for that reason alone cannot be upheld. If the premise is correct, the conclusion follows, for it is now settled beyond further controversy in this state that a city cannot raise revenue for general municipal purposes by the imposition of license taxes. (Johnson v. City of Great Falls, 38 Mont. 369, 16 Ann. Cas. 974, 99 Pac. 1059; Reilly v. Hatheway, 46 Mont. 1, 125 Pac. 417.)
The case last mentioned was tried upon its merits, and evidence was introduced from which it appeared conclusively that the ordinance there involved was intended to raise revenue for general city purposes, and was not designed for regulatory purposes under the police power of the city. In the case now before us there is not anything to indicate the character of Ordinance No. 536 except the terms of the ordinance, and from them alone the validity of the ordinance must be determined, so far as this proceeding is concerned.
The ordinance is entitled: “An ordinance requiring those engaged in certain occupations, industries, trades, pursuits, and professions in the city of Bozeman to pay a license fee in aid of the police regulations of the city,” etc.
Section 1 declares that “In aid of the police power and regulations of the said city of Bozeman it is hereby ordained that no person, firm, association or corporation shall conduct, operate, transact, engage in or carry on any of the industries, trades, pursuits, professions, vocations or businesses within the city of Bozeman hereinafter specified and enumerated without first applying for and obtaining a license therefor from the city of Bozeman as herein provided and if such application for license be granted, shall pay therefor as follows.”
Then follows in alphabetical order an extended list of occupations with the amount of the license fee for each. To illustrate:
“Art stores, $10.00 per year.
“Auctioneers. E'ach firm or individual auctioneer $20.00 per year or $5.00 per day.
“Auto taxis for hire. First taxi $25.00 per year; each additional one $12.00 per' year.
“Auto busses for hire. First bus $25.00 per year; each additional one $15.00 per year,” and so on throughout the list.
Section 13 provides: “It is hereby declared that the industries, pursuits, professions, occupations, businesses, trades and vocations required to procure licenses under this ordinance require special regulation, inspection, control and protection under the general police power of the said city of Bozeman,” etc.
The same section provides that all funds collected under the ordinance together with one-half of all fines and penalties collected by the police court, one-third of all building permit fees and one-third of all building inspection fees collected by the city shall be deposited in a special fund to be known as the “Protection of Life and Property Fund,” and after defraying the expenses of administration of the ordinance, seven and one-half per cent of the fund shall be devoted toward the payment of the expenses of the health department, two and one-half per cent toward paying the expenses of the police court, fifty per cent toward paying the expense of the police department, and forty per cent toward paying the expenses of the fire department.
While it must be conceded that this court is not 'bound by the recitals in the title or body of the ordinance, in determining whether the purpose is to raise revenue or enforce reasonable police regulations, there is not anything in this ordinance which tends to contradict the deeclared purpose of the Act. Whether a particular business requires special police inspection, regulation or control is usually a question of fact, and, since the legislative department of the city government has declared that the industries required to be licensed by Ordinance No. 535 do call for such special police regulation, tbe presumption must be indulged, in tbe absence of any showing to the contrary, that the finding is justified by the facts.
The ordinance is not open to the objection that it does not contain any regulatory provisions — the objection that was sustained to the ordinance considered in Los Angeles v. Lankershim, 160 Cal. 800, 118 Pac. 215, and to the one involved in Ex parte Tepper, 60 Cal. App. 98, 212 Pac. 220.
It is true that the ordinance now under review does not specify in detail the duties of the several officers who may be engaged in carrying its provisions into effect, but it is not necessary that it should do so. It does provide: ‘ ‘ Sec. 5. Every person, firm, association or corporation licensed under the provisions of this ordinance shall be subject to regulation, inspection, control and supervision under the general police power of the city of Bozeman and of all of the ordinances now in force or which may hereafter be adopted in aid of such police power and regulation.” And this is further convincing evidence that the ordinance is intended as a police regulation.
A distinction between a license tax and a tax proper or a revenue measure is stated as follows: “Where the fee is imposed for the purpose of regulation and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper imposed by virtue of the police power; but when it is exacted solely for revenue purposes without any further condition it is a tax.” (17 R. C. L. 479.)
The general structure of this ordinance, and the particular purposes to which the funds collected under it are devoted, tend strongly to give to it the character of a police regulation; at least it cannot be said from an inspection of the ordinance itself that it is a revenue measure. (John Rapp & Son v. Kiel, 159 Cal. 702, 115 Pac. 651.)
2. It is contended further that, if the ordinance be con- sidered as a police regulation, it is so unreasonable in the amounts exacted that it is void. It is the general rule that the license fee required by an ordinance designed as a police regulation must not exceed the cost of issuing the license and the additional cost of inspection and supervision. However, this rule is subject to the qualification that the licensing authority is not limited, in fixing the amount of the fee, to the expense of direct regulation alone, but may adjust the fee to cover the cost of all incidental consequences which may reasonably subject the public to expense as a result of the conduct of the business licensed (17 R. C. H 539). The nature of the business and the necessity, character and extent of the regulations are the dominating elements which determine the reasonableness of the fee to be paid. (3 MeQuillin on Municipal Corporations, sec. 1002; 17 R. C. L. 5M.)
Cases may arise wherein it is possible for a court to say, as a matter of law, that a given fee is out of all reasonable proportion to the expense of proper police inspection and supervision, as was done in Smith v. Mahoney, 22 Ariz. 432, 197 Pac. 704, but such is not the case before us. In considering a somewhat similar ordinance under like circumstances, the supreme court of Washington said: “The amount of the license fee fixed by the ordinance .for the business of pawnbroking is $100 per annum. There is nothing in the record to show what the actual costs are, or what a reasonable charge would be, for enforcing the regulations prescribed, and we are asked to say, as a matter of law, that the amount fixed is so far in excess of any sum that could be legitimately charged for regulating the business as to enter the domain of taxation. We do not feel that we are authorized to do this in the case before us. It is not doubted that the business of pawnbroking is a proper subject of police regulation, nor is it doubted that it is within the province of the municipal authorities to make the business bear the costs of such regulation. As these costs must be prescribed in advance, they must of necessity be based upon estimates which it is the right and duty of the municipal authorities to make. The courts cannot, therefore, on any mere difference of opinion as to the amount necessary to meet these costs, say that they are excessive. They must be shown to be so by evidence, or else they must be so exorbitant and arbitrary as to leave no room for turn opinions on the matter — so exorbitant and arbitrary as to show that they could not have been based upon any possible estimate of the probable cost. The amount of the fee in question here is not subject to these objections. It cannot be said that it will exceed even the actual cost of surveillance, much less can it be said it is excessive or arbitrary.” (City of Seattle v. Barto, 31 Wash. 141, 71 Pac. 735.) So likewise in this instance, the presumption is that the fee is reasonable until the contrary appears (17 R. C. L. 537), and in the absence of anything in this record to indicate that the fee exacted from .persons engaged in the business of operating motor vehicles for hire exceeds the reasonable cost of proper supervision of the business, the ordinance is not open to the charge that it is unreasonable.
3. It is idle for counsel to contend that the motor vehicle business, when conducted for hire, is not subject to police regulation, or that the business does not require police regulation. Chapter 154, Laws of 1923, in force prior to the enactment of Ordinance No. 535, has to do with the licensing and regulation of the motor vehicle business for hire upon the public highways of the state. Section 3 of the Act provides, among other things: “Cities and towns may enact and enforce reasonable regulations and regulatory ordinances including the imposing of regulatory licenses not destructive of the general purposes of this Act.” Our attention is not directed to any provision of Ordinance No. 535 which is even inconsistent with the purpose of Chapter 154 above.
4. Again, it is insisted that, if it were the purpose of the city of Bozeman to license the business of operating motor vehicles for hire, Ordinance No. 535 fails to carry that intention into effect. It is argued in this behalf that at best the ordinance only assumes to license each auto taxi and auto bus and not the business of operating such vehicles. The same objection wag made to the ordinance involved in Kents v. City of Mobile, 120 Ala. 623', 24 South. 952, but the court disposed of it by saying: “It is manifest that the business or occupation tax referred to is required to be determined by the number of drays or vehicles that are used in the transportation of goods, and that the number of drays and other vehicles are referred to, not to impose a tax on them as property, but simply, to arrive at a proper ascertainment of the just amount of the license tax in each particular case. A party engaged in business in the city, and employing drays or other vehicles for the transportation of their merchandise, or parties using vehicles at the public stands, may use one or many of them, and different persons may use more or fewer of them than other persons engaged in the same business. The number so used, therefor, was a proper, and perhaps as good a basis for determining the amount to be paid for the license to do the business, as any other — if not the best.” In 3 McQuillin on Municipal Corporations, section 1010, it is said: “A license tax of so much per vehicle is a tax against the owner and not a property tax against the vehicle and is proper as a basis for determining the amount to be paid by the owner.”
5. Again, it is insisted that the ordinance is void in so far as it attempts to exact a license fee exceeding $10 for each vehicle. Section 5039, Revised Codes of 1921, provides: “The city or town council has power: * * * 3. To license all industries, pursuits, professions and occupations, and to impose penalties for failure to comply with such license requirements; but the amount to be paid for such license must not exceed the sum required by the state law when the state law requires a license therefor.”
Chapter 154, Laws of 1923, above, confers upon the state Railroad Commission general supervision of rates to be charged and facilities and service to be furnished by transportation, companies engaged in operating motor vehicles for hire upon the highways of the state (section 3). It provides also that “No transportation company, as defined in section 1 of this Act shall hereinafter operate any motor vehicle, motor truck, motor trailer, bus trailer, semi-trailer or other trailer in connection therewith for the purpose of transportation of persons or property for compensation on any public highway of this state without first having obtained from the Railroad Commissioners of Montana a certificate which shall set forth the special terms and conditions under which permission is granted to operate any of the vehicles above mentioned.” (Section 4.) The Act provides further: “The Railroad Commission of Montana is hereby authorized and empowered in the regulation of the persons and corporations as defined in this Act, to require the payment of an annual license fee to be paid by each transportation company doing business within the meaning of this Act, in accordance with the number and weight and size of such vehicle or vehicles owned or operated by it, such license fee not to exceed the sum of ten dollars ($10) per vehicle, to be imposed for the purpose of defraying the expenses of administration of this Act and the regulation of the businesses herein described.” (Section 8.)
Waiving aside for the present the question of the power of the legislature to delegate to the Railroad Commission the authority to exact a license fee from anyone and to determine the amount thereof within the limit indicated in section 8 above, it is to be observed that the Act itself does not require that a license fee be exacted at all, and does not attempt to fix the amount which the commission may exact beyond designating the maximum fee which may be charged. There is nothing in this record to indicate that the Railroad Commission has exercised the power (if power'it has) to impose a license fee upon transportation companies engaged in operating motor véhicles for hire. Under these circumstances it cannot be said that the license fee prescribed by Ordinance No. 535, for engaging in the business of operating motor vehicles for hire, exceeds the sum required by the law of the state as a license fee for the same business. It is no objec tion to the validity of the ordinance that the state may also license the business of operating motor vehicles for hire. The power to license any given business subject to police regulation may be exercised concurrently by the state and municipal government. (Johnson v. City of Great Falls, above; 17 R. C. L. 560.)
6. Finally it is urged that the ordinance operates retro- actively, and for that reason cannot be upheld. The ordinance was not enacted until May 14, 1923. It prescribes the license fee for those engaged in the business of operating motor vehicles for hire upon a yearly basis. It is insisted that the city cannot exact the entire fee prescribed by the ordinance for the year 1923 and, since no provision is made for apportioning the amount to be paid for the remaining portion of that year, the ordinance is void in so far as it undertakes to authorize the imposition and collection of the fee for the entire year 1923. The same attack was made upon the income tax law of Wisconsin, and the supreme court of that state disposed of it summarily as follows: “One further objection we overrule here without comment, for the reason that it seems very unsubstantial, namely, the objection that the law is retroactive and void, because assessed on incomes received during the entire year 1911, while it did not go into effect until July 15th of that year.” (State v. Frear, 148 Wis. 456, Ann. Cas. 1913A, 1147, L. R. A. 1915B, 569, 606, 134 N. W. 673, 135 N. W. 164.) The objection now under consideration is equally without merit. The ordinance is not retroactive (36 Oye. 1201), and the accused were not charged with operating without a license previous to May 14, 1923, but were charged with operating without the necessary license on August 22, 1923, long after the ordinance became effective.
The ordinance appears to be proof against any of the attacks made upon it. Its validity will be presumed in the first instance (2 McQuillin on Municipal Corporations, sec. 794), and until that presumption is overcome it is the duty of the police court to uphold it.
The order of the police court sustaining the demurrer to the complaint is annulled.
Order annulled.
Mr. Chief Justice Callaway and Associate Justices Cooper, Stark and Galen concur.
|
[
26,
18,
16,
23,
20,
-38,
-2,
-14,
-3,
71,
21,
14,
31,
-38,
54,
9,
-22,
-2,
25,
-28,
0,
-41,
-19,
-8,
9,
17,
-17,
-16,
-100,
28,
41,
-12,
13,
20,
1,
73,
-13,
26,
52,
24,
38,
62,
-34,
-29,
27,
8,
24,
-23,
-35,
-47,
-50,
14,
6,
22,
-36,
-32,
6,
-11,
14,
39,
-25,
8,
7,
38,
4,
-51,
-29,
58,
15,
-19,
-32,
31,
-20,
-9,
31,
-8,
24,
-64,
-30,
22,
-57,
1,
14,
-20,
3,
36,
-25,
-38,
26,
-49,
23,
11,
13,
5,
13,
10,
39,
-43,
-26,
-34,
-6,
-43,
-3,
68,
-11,
-13,
-34,
4,
52,
-13,
-33,
14,
35,
-20,
0,
0,
10,
31,
62,
-25,
11,
-5,
-2,
-6,
-30,
-51,
2,
14,
-1,
35,
-13,
10,
52,
-11,
-21,
-10,
23,
-19,
-24,
92,
33,
26,
3,
-12,
-16,
-1,
5,
58,
-11,
-13,
-44,
13,
88,
28,
-26,
-50,
-28,
-29,
42,
-12,
-5,
-28,
22,
-25,
11,
36,
-28,
-10,
-11,
-3,
-16,
43,
-34,
15,
65,
-33,
-59,
40,
-31,
-71,
-50,
-19,
-59,
-10,
54,
-26,
35,
-21,
47,
-17,
23,
-54,
-24,
-16,
6,
-37,
33,
0,
14,
-60,
11,
21,
-23,
43,
-55,
46,
10,
57,
46,
20,
16,
-33,
28,
2,
17,
10,
-47,
5,
-6,
-12,
-6,
-45,
-33,
-9,
-25,
-36,
-31,
11,
17,
-12,
-1,
8,
-17,
-20,
-40,
-41,
19,
-12,
-21,
-11,
-36,
50,
-21,
-15,
-18,
51,
-20,
-64,
-5,
8,
18,
-40,
12,
56,
-28,
-16,
26,
32,
43,
20,
56,
1,
48,
24,
24,
-55,
-15,
-14,
14,
57,
-32,
50,
6,
3,
-24,
-33,
-10,
-29,
12,
17,
-58,
-14,
3,
55,
15,
54,
-2,
20,
8,
-19,
39,
-21,
-18,
26,
23,
30,
51,
56,
-25,
-16,
-3,
19,
38,
22,
26,
-39,
-53,
17,
2,
27,
-24,
-15,
-42,
10,
19,
12,
21,
-29,
34,
-8,
20,
18,
-4,
20,
-18,
-31,
48,
49,
19,
-48,
36,
-31,
-27,
20,
-26,
-35,
46,
5,
-12,
-30,
-40,
-7,
27,
4,
8,
30,
-9,
31,
-28,
-51,
-63,
11,
-33,
28,
-15,
-3,
27,
-2,
-31,
-7,
25,
16,
-6,
-6,
-29,
-10,
-11,
-14,
5,
-27,
3,
-26,
-57,
9,
16,
-32,
-2,
-4,
-56,
24,
4,
-54,
-10,
-67,
24,
0,
65,
-37,
-58,
-53,
1,
69,
-29,
4,
16,
4,
-15,
-16,
26,
-4,
-67,
83,
-14,
17,
-23,
-26,
46,
41,
-23,
12,
-35,
-47,
45,
7,
25,
89,
-24,
-18,
-36,
4,
-4,
13,
8,
-17,
63,
2,
7,
27,
-13,
-20,
-5,
-10,
62,
-13,
-8,
-97,
0,
-75,
-24,
-4,
-44,
-13,
-63,
37,
-36,
-50,
-34,
6,
-3,
13,
81,
42,
-23,
30,
6,
55,
21,
32,
-1,
28,
37,
27,
-14,
0,
0,
-20,
31,
7,
-14,
20,
-17,
-32,
-56,
-29,
0,
-21,
-71,
-19,
-12,
6,
-15,
7,
40,
17,
13,
-31,
15,
14,
-22,
80,
57,
30,
-53,
-41,
22,
-3,
0,
25,
16,
-37,
15,
31,
-51,
12,
-82,
15,
42,
12,
-16,
49,
-28,
31,
30,
-2,
-10,
5,
-15,
50,
-3,
-36,
10,
26,
-34,
-24,
24,
39,
4,
-18,
12,
14,
-43,
32,
-11,
-28,
16,
-25,
4,
39,
47,
-13,
50,
-27,
5,
-26,
8,
20,
-5,
0,
66,
-25,
-22,
-6,
-7,
-26,
11,
-11,
-3,
35,
-45,
45,
-2,
63,
-31,
10,
6,
67,
-30,
33,
52,
11,
-41,
22,
-7,
-3,
-3,
20,
-6,
-5,
-30,
-16,
9,
8,
-11,
42,
15,
-13,
13,
26,
-19,
-50,
52,
7,
17,
26,
20,
12,
43,
18,
0,
-5,
-8,
11,
-40,
15,
-17,
-41,
-13,
-53,
-8,
-36,
0,
2,
-6,
9,
7,
75,
-27,
-36,
61,
-58,
-53,
-77,
-9,
10,
15,
-53,
0,
-10,
43,
-19,
-54,
-27,
-14,
18,
11,
-13,
43,
83,
-22,
-23,
42,
36,
41,
14,
-9,
55,
-6,
109,
32,
20,
-31,
3,
18,
-37,
13,
35,
-37,
-13,
-24,
8,
-7,
29,
-39,
1,
-17,
-23,
10,
-5,
18,
30,
10,
-38,
27,
1,
10,
-30,
-7,
-32,
-4,
-5,
23,
-4,
-49,
-40,
-12,
-17,
27,
6,
13,
17,
38,
-14,
5,
16,
-30,
50,
-24,
-1,
-5,
-12,
40,
-38,
-9,
-33,
-19,
19,
-11,
-2,
-42,
-15,
-16,
-53,
-23,
-19,
-58,
-25,
-2,
0,
6,
-37,
-6,
-17,
-41,
-19,
53,
37,
-2,
-8,
-20,
-5,
12,
61,
-2,
-14,
-12,
-32,
-41,
-9,
-25,
-14,
29,
-8,
0,
44,
-33,
-18,
22,
-4,
-55,
50,
39,
-7,
20,
-3,
-31,
5,
10,
66,
-29,
-88,
57,
29,
32,
73,
-8,
-12,
-44,
8,
-12,
-16,
22,
19,
-6,
-46,
21,
-19,
-21,
-13,
28,
18,
1,
-10,
-37,
18,
-39,
49,
-32,
65,
2,
46,
14,
-64,
73,
-35,
-35,
21,
-60,
10,
4,
25,
-14,
20,
-5,
3,
5,
49,
4,
52,
3,
-18,
-7,
-17,
-22,
-14,
32,
-23,
10,
3,
-31,
-68,
-9,
-27,
15,
38,
20,
0,
8,
-45,
-55,
35,
24,
-11,
-28,
-12,
-48,
46,
-1,
1,
23,
-13,
0,
-13,
-10,
75,
-4,
32,
0,
8,
-52,
-7,
-23,
56,
-12,
-7,
0,
42,
9,
6,
17,
43,
27,
-5,
2,
-29,
-10,
-12,
23,
-12,
8,
13,
-22,
17,
16,
33,
-19,
32,
31,
40,
17,
-19,
-15,
0,
-5,
-26,
1,
12,
-29,
0,
60,
40,
47,
-13,
-60,
-43,
-18,
9,
-57,
7,
51,
-87,
-8,
-19,
-11,
45,
-20,
-22,
14,
7,
-14,
11,
48,
-19,
-3,
-31,
16,
-28,
-39,
1,
48,
-8,
4,
27,
-47,
64,
-53,
26,
-47,
10,
29,
45,
-54,
-1,
25,
19,
-9,
10,
5,
86,
-27,
-23,
-70,
0,
14,
41,
31,
-7,
-42,
-28,
-9,
-1,
29,
44,
21,
39,
-28,
16,
-86,
-8,
58,
-36,
-30,
-30,
50,
-18,
-39,
-18,
17,
-46,
3,
17,
-10,
19,
24,
9,
0,
22,
-54,
-7,
33,
-28,
41,
30,
58,
36,
19,
43,
17,
13,
-27,
7,
13,
-14,
-60,
-31,
-46,
25,
-49,
14,
29,
-35,
32,
46,
-70,
0,
22,
-31,
-16,
-16,
10,
1,
-28,
0,
-46,
6,
-27,
36,
21,
32,
-47,
-31,
-11,
15,
-48,
-11
] |
HONORABLE W. L. FORD, District Judge,
sitting in place of MR. CHIEF JUSTICE CALLAWAY, disqualified, delivered the opinion of the court.
In this action the plaintiff sues upon a promissory note of which the following is a copy:
“$17,976.00. Dillon, Mont., Aug. 28th, 1914.
“On demand, for value received, I, we, or either of us promise to pay to the order of T. H. Mulany seventeen thousand nine hundred seventy-six and no/100 dollars, with interest thereon at the rate of twelve per cent, per annum from and after the date hereof. All parties, whether primarily or secondarily liable upon this note, severally waive the benefit of all exemption laws; and in ease the holder hereof -shall employ an attorney to collect any part of the same, we agree to pay in addition ten per cent, of the amount due for collection charges, and in case of suit a reasonable attorney’s fee.
“James P. Murray.
“Mary Adele Murray.
“C. E'. Gruwell.”
Indorsed: “Paid 9-25-15, on note, $12,976.00. Paid 9-25-15, on interest, $2,336.88.”
The complaint is in the usual form, and the defendant Mary Adele Murray is sued both in her individual capacity and as the executrix of the estate of James P. Murray, deceased, but at the trial the cause was dismissed as to the estate and the defendant Gruwell was. not served. The defendant Mary Adele Murray answered, admitting the execution of the note, alleging that the defendant James P. Murray, during his lifetime, paid said note, and pleading affirmatively want of consideration for her signature upon the promissory note, to which answer, reply was filed. The plaintiff had judgment for the balance due upon the note, and the defendant Mary Adele Murray appeals from the judgment and the order denying her motion for a new trial.
The evidence discloses that on August 28, 1909, James P. Murray and C. E. Gruwell made, executed and delivered to the plaintiff their promissory note for the sum of $15,000, with interest at twelve per cent per annum, which note was renewed in 1910 and 1911; the defendant Mary Adele Murray was not a party to either the note or the renewals. On August 18, 1914, the note sued on was given in renewal of said note of 1909, including the interest therein, which was signed by the defendant Mary Adele Murray, and in that connection she testified in part as follows: “When I signed this note dated August 28, 1914, I knew that it was to take the place of a note that existed that my husband and Mr. Gruwell were liable on to Mr. Mulany. At that time my husband was not in good health. He was not almost an invalid at that time. I signed this new note in order to relieve my husband’s mind and also so that Mr. Mulany might have a new note. I did that at my husband’s request. I knew also at that time the interest on this note for $15,000 had not been paid, and that therefore the amount for which I signed the new note, to-wit, $17,976, was due on the $15,000 note, that Mr. Murray and Mr. Gruwell owed to Mr. Mulany. This note for $17,976 was signed by Mr. Murray and Mr. Gruwell either before or after I signed it. I signed the note for $17,976 at the request of my husband.’’
As counsel for defendant (appellant herein) state in their brief, the only question submitted for our consideration is whether any consideration ever existed for the signature of the defendant Mary Adele Murray; and in that connection counsel contend that the defendant was a guarantor upon the debt of her husband and Gruwell, and that she could not be held liable for the reason that the original obligation was incurred five years previous, and no consideration distinct from the original obligation exists. On the other hand, counsel for the plaintiff (respondent herein) contend that she is an accommodation maker.
“A guaranty is a promise to answer for the debt, default, or miscarriage of another person.” (Sec. 8171, Rev. Codes 1921.)
“A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice.” (Id., sec. 8182.) “The undertaking is the guarantor’s own separate contract.” (Square Butte State Bank v. Ballard, 64 Mont. 554, 210 Pac. 889; Cole Mfg. Co. v. Morton, 24 Mont. 58, 60 Pac. 587; Daniel on Negotiable Instruments, 6th ed., sec. 1753.)
“An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.” (Sec. 8436, Rev. Codes 1921.)
“The person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are ‘secondarily7 liable.” (Id., see. 8403.)
From the above citations, as well as from the testimony of the defendant herself, the conclusion is irresistible that she is not a guarantor but an accommodation maker.
No consideration moving to the accommodating party is necessary to uphold accommodation paper (8 C. J., sec. 403, p. 255), and the fact that the defendant herein signed the note without receiving any part of the consideration, and for the purpose of lending her name to her husband, does not alter her situation. She is liable notwithstanding the plaintiff, at the time he took the note, knew her to be only an accommodation party. In other words, the fact that she is an accommodation maker gives rise to a duty on her part to the holder for value, no greater, no less, nor different than that imposed on the maker who received value. (Merchants’ Nat. Bank v. Smith, 59 Mont. 280, 292, 15 A. L. R. 430, 196 Pac. 523; Spear v. Ryan, 64 Mont. 145, 148, 208 Pac. 1069; In re Stinger’s Estate, 61 Mont. 173, 201 Pac. 693.) To uphold the note it is only necessary that one or more of the makers receive the consideration (Skagit State Bank v. Moody, 86 Wash. 286, L. R. A. 1916A, 1215, 150 Pac. 425); and the consideration for the note sued bn, so far as James P. Murray and Gruwell are concerned, is the preexisting indebtedness (Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469; sec. 8432, Rev. Codes 1921), and so far as the record discloses, the plaintiff Mulany is a holder for value (Merchants’ Nat. Bank v. Smith, supra; Lowell v. Bickford, 201 Mass. 543, 88 N. E. 1).
Rehearing denied September 13, 1923.
The judgment and order appealed from are affirmed.
Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-48,
10,
8,
14,
-2,
-16,
30,
-19,
47,
-10,
-3,
-12,
19,
-2,
-30,
16,
53,
-55,
46,
-6,
0,
-30,
-10,
-8,
-34,
68,
-30,
40,
1,
13,
25,
27,
-44,
25,
-33,
-1,
-7,
-29,
28,
-16,
17,
2,
22,
46,
-12,
-1,
-17,
-30,
17,
-26,
-26,
-58,
18,
25,
2,
-10,
-8,
-2,
-14,
-7,
-42,
-59,
17,
-9,
24,
-42,
19,
-16,
-2,
3,
41,
-13,
33,
4,
-39,
1,
-57,
-48,
-38,
-15,
-10,
-42,
-44,
60,
-35,
-45,
-3,
-26,
-38,
75,
-2,
55,
-25,
-37,
-7,
-11,
1,
18,
-21,
1,
-15,
-73,
3,
40,
14,
25,
-55,
5,
-26,
46,
-13,
28,
16,
-11,
-29,
-27,
2,
-25,
17,
-34,
20,
35,
-14,
-37,
-16,
-23,
-12,
32,
63,
0,
51,
-5,
-4,
-9,
-18,
0,
36,
-71,
38,
23,
20,
-44,
-12,
17,
27,
22,
16,
-43,
-59,
-54,
-20,
-15,
23,
62,
16,
-54,
7,
-59,
18,
-5,
18,
19,
123,
-2,
-29,
22,
-20,
3,
33,
-60,
4,
4,
2,
6,
7,
14,
-25,
-34,
11,
17,
13,
24,
1,
-31,
-21,
-15,
-77,
-6,
36,
42,
5,
-58,
-16,
0,
29,
-49,
40,
-26,
25,
-9,
7,
14,
21,
6,
-6,
-23,
15,
5,
3,
-2,
4,
-7,
-5,
26,
-82,
41,
35,
-44,
-40,
-8,
-45,
-22,
-26,
-19,
1,
-63,
5,
-16,
10,
-31,
-84,
15,
28,
33,
36,
13,
17,
-4,
-8,
12,
-66,
22,
12,
-33,
7,
10,
-27,
20,
26,
34,
31,
7,
-14,
48,
30,
33,
8,
11,
-1,
-42,
-17,
3,
-9,
22,
13,
-16,
14,
-22,
22,
-8,
43,
-43,
17,
20,
30,
-30,
31,
5,
-10,
28,
-8,
-27,
4,
62,
78,
-23,
31,
2,
-36,
-17,
30,
17,
61,
36,
-2,
43,
6,
24,
-19,
67,
-24,
11,
19,
-29,
-16,
36,
-5,
-5,
-40,
-6,
-22,
64,
-5,
-14,
42,
35,
-16,
-4,
42,
35,
27,
22,
-17,
12,
9,
-15,
12,
-21,
23,
-8,
57,
20,
52,
-24,
-53,
-40,
80,
37,
-4,
-41,
33,
8,
-16,
40,
-68,
3,
-45,
19,
-36,
32,
-56,
9,
-38,
52,
-7,
72,
34,
-2,
13,
75,
-16,
27,
22,
-19,
-13,
14,
-23,
-20,
-23,
-8,
21,
21,
-43,
-56,
3,
14,
-8,
54,
-8,
59,
14,
-9,
-17,
54,
6,
12,
-7,
-55,
-17,
-40,
-22,
55,
13,
51,
-4,
-68,
13,
-14,
-70,
-23,
-7,
35,
-20,
-3,
-51,
21,
-16,
7,
-45,
0,
-9,
-25,
-8,
-4,
33,
-20,
12,
0,
-14,
-8,
45,
6,
38,
3,
-5,
-72,
60,
32,
40,
8,
10,
70,
-29,
-55,
48,
0,
-15,
-6,
16,
35,
84,
89,
-9,
55,
19,
-20,
6,
-55,
0,
47,
39,
-30,
18,
-26,
15,
-3,
34,
5,
-44,
1,
62,
-13,
17,
33,
-32,
47,
53,
-5,
-26,
10,
-39,
20,
9,
-18,
-20,
36,
-4,
-54,
50,
21,
-30,
53,
30,
-28,
8,
0,
-72,
-66,
-6,
-35,
-37,
-50,
-28,
-7,
-18,
-30,
-72,
-42,
-45,
-11,
-30,
55,
28,
31,
-34,
-3,
25,
-24,
-54,
31,
36,
-42,
-10,
26,
31,
40,
56,
2,
15,
-27,
20,
28,
-42,
44,
40,
-13,
-6,
-21,
-2,
-5,
-65,
38,
-20,
-46,
-11,
-14,
3,
16,
-19,
-21,
24,
14,
-27,
36,
-28,
-9,
-17,
14,
-5,
-13,
34,
-50,
27,
7,
-36,
26,
18,
0,
-2,
-26,
41,
42,
-44,
-63,
75,
35,
23,
-10,
0,
-14,
-17,
-66,
-2,
-58,
4,
-22,
-16,
12,
54,
-22,
28,
-35,
10,
-34,
-17,
-8,
10,
-16,
-44,
34,
25,
-5,
3,
20,
26,
-6,
-30,
-19,
32,
45,
-43,
-17,
40,
57,
-9,
0,
-32,
27,
-3,
-38,
28,
-7,
-19,
6,
-12,
-59,
-49,
-46,
44,
2,
18,
31,
22,
20,
35,
8,
-83,
-30,
-66,
69,
70,
-46,
0,
52,
-3,
57,
-57,
20,
8,
-45,
-37,
32,
51,
-21,
-47,
20,
5,
15,
26,
-23,
30,
42,
51,
-48,
-16,
-29,
57,
0,
-6,
35,
48,
5,
-25,
47,
14,
-4,
6,
24,
-39,
22,
11,
-15,
3,
-57,
-3,
-7,
3,
6,
26,
-44,
20,
-5,
15,
69,
-75,
-3,
-12,
8,
-31,
-25,
12,
-17,
-53,
56,
-12,
14,
32,
-37,
-34,
-19,
34,
-39,
9,
49,
-61,
17,
-31,
17,
-1,
-35,
8,
-20,
-67,
-7,
26,
-5,
39,
25,
-40,
-64,
48,
-16,
30,
0,
-42,
-1,
31,
-4,
-37,
3,
29,
32,
-15,
14,
6,
-14,
-19,
-36,
-62,
3,
-11,
28,
12,
20,
-25,
18,
-15,
-17,
-21,
20,
5,
-19,
11,
-5,
3,
5,
-11,
28,
7,
-16,
-38,
57,
9,
-14,
7,
46,
1,
1,
-41,
-21,
-6,
9,
0,
30,
-9,
3,
10,
0,
19,
36,
26,
39,
-30,
-48,
7,
1,
9,
51,
39,
89,
10,
-24,
-30,
-22,
2,
0,
-19,
7,
-54,
30,
-2,
-32,
-9,
28,
54,
36,
43,
40,
28,
87,
-67,
11,
10,
-16,
-6,
49,
-24,
24,
-15,
-29,
-26,
-5,
38,
74,
-14,
37,
-79,
44,
-29,
-5,
0,
-47,
-47,
-44,
-18,
43,
45,
43,
-6,
-24,
-8,
-27,
-52,
-3,
-10,
23,
-2,
49,
0,
0,
4,
26,
-17,
-32,
-68,
-16,
41,
-66,
-30,
0,
8,
-60,
-35,
-35,
47,
6,
0,
-24,
2,
46,
-27,
22,
14,
-4,
16,
-6,
78,
-64,
43,
87,
-41,
2,
-7,
3,
-3,
-6,
-2,
19,
13,
-12,
-16,
0,
-25,
-19,
23,
-46,
11,
-52,
33,
25,
39,
-28,
52,
6,
-25,
-18,
-23,
46,
-1,
-10,
63,
-38,
30,
-29,
-51,
22,
5,
29,
32,
-45,
48,
-11,
-64,
5,
3,
-26,
21,
-32,
-42,
46,
-22,
-3,
19,
-7,
-29,
7,
-16,
-25,
-25,
-8,
6,
-17,
57,
44,
17,
19,
51,
-32,
-7,
40,
8,
14,
22,
74,
-43,
-11,
-16,
-31,
71,
23,
-6,
0,
-45,
-83,
-37,
-31,
10,
1,
40,
-30,
-18,
30,
36,
-39,
-32,
14,
106,
-7,
9,
-69,
60,
13,
-31,
-6,
-3,
-12,
10,
4,
-29,
-60,
7,
7,
-34,
6,
41,
-6,
35,
7,
6,
15,
-16,
-46,
-37,
-8,
-28,
-95,
-21,
-13,
-44,
4,
-1,
-27,
-3,
16,
15,
24,
5,
-44,
-34,
3,
-6,
-40,
30,
39
] |
MR. JUSTICE COOPER'
delivered the opinion of the court.
This action was brought in the district court of Hill county to recover $591 and interest overpaid to defendant by plaintiff, and a balance upon a current account in the sum of $135 and interest, for work done and merchandise furnished between March 15, 1909, and December 1, 1920. With a copy of the complaint a summons was served on defendant June 9, 1922. On June 30, the defendant having failed to answer, judgment in favor of plaintiff was rendered. On July 17 following, the court, upon affidavit of defendant and his proposed answer and counterclaim for services as a blacksmith, the records and files in the cause, and on motion of defendant’s attorney, issued an order requiring the plaintiff to show cause on August 7, 1922, why the default judgment should not be set aside and the defendant allowed to file his answer and defend the action. A hearing was had, and on August 15 the court vacated the default and permitted the defendant to answer and defend the cause on the merits. From this order the plaintiff has appealed.
The affidavit of the defendant states that on the day summons was served upon him he employed one J. K. Bramble, an attorney residing at Havre and engaged in the practice of law there, and gave him $5 with which to pay the clerk of the court for filing his answer; that Bramble informed him that the case would not be heard for several months, and on one occasion thereafter told him that “he was looking after the matter for him”; that about July 13 he heard rumors that a judgment had been entered against him in favor of the plaintiff, and upon making inquiries found such to be the fact; that he has fully and fairly stated the facts to his present counsel and is advised and verily believes that he has “a full and substantial defense on the merits to the action,” as appears by his proposed answer; that after learning of the default he endeavored to see Bramble, but learned that he had left Havre on account of his health “and is now supposed to be in Canada”; that the allegations of the complaint with reference to the indebtedness of defendant are untrue, and that he desires an opportunity to defend the action. The answer consists of general denials and a counterclaim to each of the causes of action set forth in the complaint. The allegations of the counterclaim are: “That the plaintiff is indebted to him in the sum of $142.10, for the balance of an account for work, labor and services performed as a blacksmith, and material furnished by defendant to plaintiff, the whole done, performed, and furnished at the request of the plaintiff between the first day of April, 1909, and the first day of December, 1920; that the whole aggregate value of said services and materials furnished is the sum of $1,571.18, and after deducting sundry payments made by plaintiff, the said sum of $142.10 is the balance remaining due therefor to this defendant. ’ ’
Rehearing denied September 11, 1923.
If Mr. Bramble’s failure to file an answer for his client was attributable to his ill health, the defendant might have been able to produce a certificate of his attending physician which would have had a tendency to show some excuse for allowing the default to be taken. If so, it should have been produced. Something more than a statement of the bare fact that his attorney had told him he “was looking after the matter for him,” and that he had “learned that he [Mr. Bramble] had left Havre on account of his health,” was required to justify the district court in vacating a judgment entered according to law. (Green v. Wiederhold, 56 Mont. 237, at page 240, 181 Pac. 981.) Having chosen to stand upon the meager and insufficient allegations of his affidavit, he is in no better position than was the defendant in Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814, who failed to show why his counsel had failed and neglected to prepare and file an answer within the time fixed by the statute.
The order is reversed, with directions to the district court of Hill county to set aside the order vacating the judgment.
Reversed.
Mr. -Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
|
[
-48,
27,
-5,
43,
-4,
-24,
67,
-75,
35,
24,
43,
-46,
9,
0,
-12,
-58,
-15,
-59,
24,
-14,
-6,
-35,
34,
-43,
16,
-4,
-26,
1,
-55,
1,
21,
26,
-18,
58,
-44,
-16,
-3,
-55,
22,
-13,
0,
59,
-16,
4,
36,
60,
-44,
-13,
53,
-16,
46,
-23,
-17,
-8,
0,
-28,
-9,
18,
7,
-4,
-8,
-18,
3,
-24,
18,
-14,
-41,
-12,
-43,
54,
-52,
-12,
23,
-44,
-21,
-51,
-9,
-16,
-11,
-21,
-29,
15,
-33,
-33,
-63,
0,
-38,
-22,
-25,
11,
19,
37,
29,
54,
32,
-21,
9,
3,
-21,
12,
0,
-46,
-30,
-11,
15,
18,
-48,
-10,
35,
32,
-35,
31,
34,
-17,
-1,
-38,
3,
-34,
22,
-5,
13,
26,
9,
-48,
-1,
13,
15,
5,
35,
43,
2,
13,
4,
6,
-32,
-23,
-40,
-3,
-28,
9,
17,
-54,
-27,
-23,
32,
27,
-22,
5,
29,
4,
29,
-17,
68,
14,
27,
-33,
-35,
-29,
39,
11,
29,
-2,
49,
2,
5,
33,
16,
-3,
3,
-68,
-18,
12,
-19,
-37,
-19,
24,
-11,
-21,
0,
27,
9,
-13,
5,
-46,
1,
-12,
21,
19,
49,
29,
-4,
-25,
-6,
26,
-57,
-46,
23,
-82,
33,
-53,
0,
2,
3,
9,
-25,
2,
20,
-38,
13,
11,
-1,
-31,
-9,
-1,
-23,
41,
11,
-33,
-38,
-7,
-14,
61,
-54,
26,
-27,
-44,
26,
-9,
22,
-22,
-71,
0,
8,
14,
34,
-25,
30,
1,
-74,
-10,
-85,
-42,
-12,
-31,
-22,
-5,
13,
-22,
34,
3,
-23,
-7,
-5,
34,
-20,
5,
21,
-52,
-32,
-28,
-12,
13,
-17,
24,
41,
-18,
6,
36,
-8,
5,
27,
-34,
47,
21,
-18,
-37,
18,
22,
-7,
-22,
-32,
-40,
9,
-18,
16,
7,
30,
23,
0,
-25,
31,
-56,
27,
-3,
38,
31,
38,
-14,
10,
13,
-7,
-39,
-32,
1,
-13,
0,
-42,
-36,
-39,
-15,
-10,
18,
-2,
-8,
61,
-8,
2,
35,
-1,
-1,
-14,
3,
-18,
-28,
-27,
-4,
4,
-25,
-17,
23,
-16,
28,
-10,
30,
-53,
-29,
12,
23,
32,
-12,
32,
8,
9,
-18,
-22,
39,
-40,
9,
5,
0,
12,
1,
-12,
47,
24,
11,
36,
-4,
5,
29,
45,
2,
12,
-33,
63,
21,
-67,
17,
-45,
30,
-1,
18,
27,
-22,
17,
-28,
-33,
-2,
-48,
48,
13,
-41,
-27,
-29,
39,
0,
21,
3,
-54,
-32,
-13,
43,
45,
25,
-7,
15,
5,
-56,
-53,
-22,
-13,
2,
-11,
-58,
-63,
-18,
-22,
-16,
11,
-6,
25,
-18,
-17,
3,
-7,
-57,
-20,
31,
22,
15,
40,
11,
38,
0,
30,
15,
75,
14,
-48,
5,
28,
-3,
33,
-16,
-5,
-30,
8,
-16,
19,
-21,
14,
91,
0,
20,
48,
-5,
20,
16,
27,
-28,
-1,
31,
25,
33,
38,
27,
39,
-33,
40,
-15,
39,
54,
-9,
35,
-5,
7,
28,
-1,
-23,
24,
-9,
18,
-19,
-27,
18,
82,
24,
-12,
34,
21,
3,
11,
-23,
34,
-31,
21,
-16,
-21,
-32,
-8,
37,
-37,
-64,
-35,
-43,
-8,
-39,
-2,
-15,
25,
-80,
9,
24,
-32,
-38,
-5,
-1,
-50,
-9,
12,
-2,
33,
9,
-9,
19,
17,
29,
52,
-8,
8,
1,
32,
-36,
44,
-6,
11,
-36,
49,
32,
-56,
9,
-24,
-55,
-41,
-37,
21,
52,
-3,
-16,
2,
20,
3,
29,
47,
-65,
5,
-48,
36,
36,
64,
-17,
-12,
45,
36,
41,
20,
-2,
-13,
27,
-4,
20,
10,
-38,
-4,
29,
6,
-9,
2,
-60,
-15,
0,
-43,
20,
0,
-7,
0,
-68,
-29,
-5,
-20,
7,
-4,
-26,
-34,
-2,
28,
32,
-38,
-6,
23,
28,
1,
-11,
25,
3,
-31,
-31,
38,
-24,
15,
-24,
5,
-28,
17,
-22,
1,
-49,
57,
2,
11,
12,
48,
9,
-11,
17,
-51,
-5,
-18,
54,
22,
2,
30,
10,
30,
19,
-18,
-46,
-49,
-55,
4,
9,
-15,
8,
18,
-21,
37,
-42,
52,
-60,
-16,
-49,
0,
50,
-19,
-21,
-28,
21,
-4,
1,
-45,
5,
16,
2,
-1,
-21,
-21,
55,
-11,
5,
-64,
35,
-16,
5,
9,
-11,
34,
23,
76,
-15,
44,
31,
-71,
21,
-20,
10,
-18,
-6,
6,
39,
34,
20,
-26,
8,
48,
-52,
-68,
38,
-24,
-41,
8,
7,
13,
-40,
20,
-27,
42,
51,
21,
-28,
-45,
-22,
-41,
-13,
5,
16,
-3,
-3,
22,
16,
26,
-20,
-26,
-27,
29,
12,
-40,
45,
-1,
-38,
-8,
-18,
-33,
46,
-9,
29,
-2,
31,
27,
-37,
13,
56,
93,
10,
18,
-10,
-39,
-20,
-30,
-52,
-2,
5,
1,
3,
41,
-3,
-2,
22,
-7,
-46,
-4,
33,
2,
-23,
4,
36,
-22,
-39,
6,
-13,
0,
23,
30,
51,
8,
-32,
3,
-30,
-25,
-54,
-10,
7,
34,
8,
-10,
25,
43,
18,
16,
27,
-23,
32,
11,
-46,
-55,
-20,
-37,
23,
25,
0,
44,
-14,
-6,
-32,
-33,
-44,
-17,
-1,
-10,
-32,
4,
-31,
31,
22,
19,
62,
3,
76,
63,
-6,
61,
-11,
-8,
37,
-28,
-30,
-35,
-21,
2,
3,
17,
-28,
13,
12,
11,
32,
27,
-28,
30,
-23,
6,
-17,
-42,
-38,
15,
10,
-8,
33,
-8,
-21,
-38,
31,
-45,
17,
16,
7,
32,
-8,
33,
-52,
20,
-34,
24,
-16,
6,
-6,
-41,
26,
-43,
-6,
3,
38,
-13,
-55,
12,
19,
-5,
-2,
-36,
-13,
3,
44,
72,
-12,
-12,
0,
23,
32,
-15,
72,
-13,
-65,
-27,
-45,
14,
-17,
21,
45,
-53,
-3,
46,
19,
-4,
36,
-8,
43,
-46,
-52,
-38,
14,
6,
6,
10,
22,
27,
17,
-21,
-9,
2,
4,
26,
0,
-24,
-48,
-8,
-10,
23,
30,
-28,
16,
40,
15,
-27,
-13,
35,
-20,
8,
-10,
20,
-35,
66,
-19,
-3,
14,
1,
19,
35,
-34,
-39,
-30,
24,
29,
10,
9,
-24,
-20,
-28,
6,
-1,
15,
78,
5,
32,
30,
63,
46,
-21,
-31,
-35,
0,
-21,
-60,
15,
9,
-35,
38,
58,
-17,
-14,
38,
-16,
-21,
1,
32,
-33,
6,
-4,
32,
33,
53,
-32,
59,
5,
-21,
55,
20,
-10,
-5,
-6,
-14,
-30,
9,
3,
0,
15,
-5,
-5,
-5,
-30,
-35,
-19,
-68,
-41,
12,
0,
-2,
-60,
21,
12,
14,
-15,
1,
46,
-33,
-20,
-20,
49,
17,
19,
10,
25,
48,
-16,
6,
21
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an action upon a promissory note for $4,000, executed by the defendants in part settlement for certain plows and machinery purchased by the defendants from the plaintiff under a conditional sales contract. The defendants interposed the defense of want of consideration; otherwise the allegations of plaintiff’s complaint, save as to allowance of attorney’s fees, are admitted. At the close of the trial, which was had before a jury, both parties moved for a directed verdict, and the cause was by the court taken from the jury with the consent of counsel. Thereafter the court made certain findings of fact and conclusions of law in the defendants’ favor, upon which judgment was duly entered dismissing the action, costs being taxed against the plaintiff. The appeal is from the judgment.
The question determinative of this appeal is whether there was consideration for the note. There is no dispute as to the facts. It appears that the defendants were engaged in the business of retailing farm implements and machinery at Great Falls, and that the note sued upon was one of four executed by the defendants, aggregating a total of $8,276.62, in settlement for twenty-one plows, 150 disc blades, and 'other machinery consigned by the plaintiff to the defendants under a conditional sales contract whereby title and right of possession of the goods were to remain with the plaintiff until fully paid for. Written order for the plows and machinery was given by the defendants to the plaintiff November 26, 1919, on the back of which the terms of sale were incorporated in contract form. Shipment of the goods was made May. 23, 1920, and they were duly received by the defendants, ivho in regular course of business disposed of a portion thereof. On November 1, 1920, the parties had a settlement of account, and the note in suit, together with the other three notes, were then executed by the defendants to cover the aggregate amount on that date agreed to be due and owing to the plaintiff on account. The notes so executed not having been paid, on December 21, 1921, the plaintiff herein instituted an action in claim and delivery against the defendants to recover therein a portion of the property consigned to the defendants. Certain of the property was retaken in that action, and thereafter the plaintiff gave credit to the defendants on the other three notes for the value of the property so recovered, and instituted the present action on April 21, 1922. The trial court found as facts that the defendants executed the note, together with the other three notes, in settlement of the purchase price of the plows under the terms of the contract of sale, and made default in payment of all of the notes, although they had disposed of seven of the plows up to December 20, 1921, and had only fourteen thereof on hand at that time. Farther, that under the terms of the contract of sale the plaintiff took possession of the remaining fourteen plows, and gave the defendants credit therefor to the full amount of the other three notes.
In our opinion these findings of fact do not support the court’s conclusion and judgment in defendants’ favor. Defendants cite and rely upon the ease of Madison River Live Stock Co. v. Osler, 39 Mont. 244, 133 Am. St. Rep. 558, 102 Pac. 325, but in our opinion it is without application to the present case. The Osier Case merely dealt with a vendor’s remedy for alleged breach of contract on sale of certain cattle, horses and harness. It appeared therein that the plaintiff took possession of all of the property sold, save a few head of cattle which had died during the winter, and long before the notes given in payment for the property were due. The jury found that the property was wrongfully retaken from the vendee’s possession, and it was there held by this court, and properly so under the facts, that the plaintiff could not thus retake the property sold, renounce the contract of sale, and at the same time insist upon payment under the contract.
Here we have a different situation. There is no rescission of the contract; the plaintiff merely insisting on its right of recovery thereon. It is admitted that the defendants bought and received the goods sold to them by plaintiff, that the note in suit was executed in payment thereof, that no part of it has been paid, and that defendants have sold and retained a portion of the property consigned to them by the plaintiff. Had the defendants shown that plaintiff rescinded the contract of sale and wrongfully took possession of all of the property sold as alleged in their answer, there would be merit in defendants’ contention. It would be a manifest injustice to permit the defendants to escape payment of their just and admittedly due indebtedness upon any such flimsy pretext. The absurdity of the defendants’ position is conclusively demonstrable upon its mere statement, insisting, as they do, upon their right to retain a portion of the goods consigned to them by the plaintiff, and avoid the payment therefor simply because some of the property sold and delivered to them by the plaintiff in consequence of defendants’ default in payment has been retaken and applied upon the defendants’ indebtedness; a unique and unheard-of method of liquidating such an obligation. To us it appears too plain to require further discussion or citation of authorities that a sufficient consideration existed for the execution of the note (sec. 7503, Rev. Codes 1921), and that the defendants are liable for the payment thereof.
Rehearing denied September 11, 1923.
The judgment is reversed, and the cause remanded to the district court of Cascade county, with directions to enter its judgment for the plaintiff.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
-19,
12,
18,
24,
-29,
-23,
33,
-34,
34,
19,
-8,
41,
25,
46,
-20,
12,
25,
-69,
42,
21,
-59,
-33,
-20,
-44,
-8,
-11,
-40,
5,
0,
28,
2,
28,
-18,
10,
-54,
15,
6,
25,
25,
-8,
34,
20,
45,
-18,
23,
19,
23,
-80,
69,
-13,
57,
-53,
14,
-45,
-5,
23,
29,
11,
-34,
10,
12,
-47,
33,
22,
24,
-51,
2,
7,
0,
-1,
-57,
-11,
21,
-19,
24,
-60,
-20,
12,
-28,
-10,
27,
-49,
15,
11,
-38,
-1,
-1,
-22,
21,
16,
1,
5,
34,
4,
4,
26,
4,
4,
-13,
2,
-28,
-68,
-15,
0,
16,
10,
-40,
-1,
10,
11,
-9,
61,
-18,
1,
-18,
-25,
-13,
-23,
0,
-9,
-15,
35,
-22,
-16,
-12,
-24,
-80,
0,
17,
3,
27,
9,
-15,
56,
-43,
3,
-2,
-31,
-23,
-4,
-23,
-24,
-25,
-32,
15,
60,
16,
4,
-46,
-17,
-45,
-9,
0,
-9,
21,
-62,
-21,
-58,
40,
-36,
54,
-5,
41,
-21,
1,
53,
-22,
29,
14,
-27,
37,
0,
-50,
-23,
36,
-1,
36,
-39,
5,
-11,
9,
30,
10,
-4,
30,
-7,
-39,
40,
21,
-3,
34,
-9,
-7,
13,
-36,
-46,
-26,
-11,
36,
0,
12,
-11,
-14,
0,
-44,
35,
-1,
-22,
-1,
46,
14,
-16,
-19,
-16,
-40,
16,
10,
-24,
-22,
-3,
7,
29,
-45,
-26,
-15,
-26,
35,
2,
0,
-8,
-75,
28,
-3,
33,
10,
1,
24,
-11,
-56,
0,
-16,
-28,
1,
-43,
0,
48,
-46,
5,
27,
17,
-9,
0,
-46,
29,
26,
21,
3,
2,
-30,
-49,
11,
55,
-7,
-7,
-13,
-35,
31,
0,
-1,
42,
12,
-44,
2,
45,
-2,
-36,
43,
-24,
17,
-24,
27,
-33,
-17,
-14,
39,
13,
-1,
27,
-19,
-5,
22,
0,
38,
-26,
9,
27,
-3,
5,
0,
10,
-40,
-29,
-24,
2,
-9,
1,
-17,
-14,
-60,
-29,
-9,
4,
-21,
-45,
15,
26,
-26,
22,
56,
26,
69,
57,
18,
9,
5,
18,
33,
-30,
31,
-3,
35,
-2,
-5,
4,
-36,
-44,
29,
-5,
13,
1,
43,
29,
-13,
-11,
0,
24,
0,
20,
-1,
47,
-1,
4,
-2,
23,
2,
-23,
42,
11,
-32,
31,
27,
-2,
0,
-24,
10,
37,
-31,
-21,
-21,
38,
-63,
57,
-5,
-49,
-37,
14,
2,
-30,
-56,
17,
7,
-41,
24,
-12,
1,
62,
25,
-7,
-23,
1,
-16,
38,
5,
67,
12,
-50,
-14,
-52,
-58,
-19,
-23,
46,
7,
-44,
12,
20,
5,
-4,
-21,
12,
-30,
-75,
-34,
-22,
26,
-4,
9,
23,
-1,
-34,
63,
10,
-7,
0,
26,
-10,
60,
-23,
-39,
11,
0,
29,
21,
-10,
-11,
8,
2,
27,
32,
0,
32,
60,
-71,
-13,
32,
3,
7,
-7,
61,
-12,
51,
-37,
17,
38,
13,
48,
52,
-27,
14,
-53,
-3,
0,
7,
-1,
37,
13,
44,
-53,
-13,
33,
-10,
54,
46,
9,
0,
32,
-12,
-40,
-9,
38,
-61,
20,
9,
-24,
-5,
-29,
-91,
-2,
-41,
-2,
28,
-8,
-22,
-10,
-49,
-26,
-13,
-28,
20,
-4,
-36,
-27,
-11,
-2,
-10,
25,
4,
-13,
-15,
43,
33,
15,
33,
-2,
-5,
45,
-5,
37,
6,
72,
8,
-6,
-49,
29,
-41,
-17,
33,
27,
24,
-33,
-51,
31,
-12,
-10,
30,
-32,
13,
14,
-14,
-52,
-21,
-39,
4,
27,
-31,
-24,
0,
0,
46,
11,
-12,
-68,
63,
52,
-13,
26,
4,
-16,
13,
-34,
-8,
61,
-40,
-19,
63,
-22,
32,
-2,
-5,
-10,
-47,
-36,
5,
12,
14,
-44,
-48,
-27,
22,
-28,
-25,
-13,
-42,
-23,
-19,
28,
14,
24,
-26,
11,
23,
15,
-20,
21,
-5,
-11,
9,
-28,
-15,
33,
1,
60,
20,
7,
9,
-4,
-42,
36,
18,
-18,
27,
35,
10,
-10,
-9,
-39,
10,
-28,
23,
-24,
25,
1,
5,
29,
17,
-10,
-61,
17,
-49,
30,
4,
5,
2,
41,
-49,
56,
4,
17,
-59,
-36,
6,
-1,
35,
-49,
-20,
-47,
-30,
17,
8,
-6,
17,
27,
41,
-63,
-33,
9,
27,
-11,
-15,
-13,
27,
-17,
-17,
6,
-16,
7,
-4,
-29,
-26,
24,
50,
-17,
-1,
-18,
30,
-5,
42,
45,
32,
9,
-12,
-22,
18,
41,
-13,
-83,
20,
-9,
7,
9,
-27,
61,
-36,
25,
-41,
12,
34,
50,
-14,
3,
22,
-14,
9,
32,
-20,
44,
-81,
15,
3,
11,
28,
-60,
-37,
-11,
-37,
-8,
49,
10,
-38,
-41,
13,
-39,
50,
-26,
-30,
0,
35,
-9,
-22,
51,
42,
73,
-7,
39,
-4,
10,
4,
-35,
-24,
-12,
0,
5,
-7,
14,
-43,
37,
14,
29,
-55,
2,
24,
-3,
48,
-9,
-26,
4,
-16,
-7,
-56,
-7,
46,
57,
-20,
33,
0,
1,
6,
-65,
-42,
-30,
-19,
20,
-43,
6,
0,
2,
-15,
-9,
45,
-14,
-11,
9,
-20,
-4,
-20,
-8,
2,
18,
21,
77,
8,
6,
13,
-35,
-37,
-9,
-7,
39,
-31,
-20,
3,
-53,
7,
26,
20,
-14,
27,
15,
37,
41,
-24,
8,
3,
-32,
18,
-2,
-37,
10,
29,
-19,
-33,
1,
6,
7,
22,
4,
-28,
-6,
-40,
10,
60,
-69,
-42,
26,
-3,
26,
62,
14,
-5,
-10,
29,
-24,
-32,
10,
38,
28,
-18,
59,
7,
-43,
3,
26,
-3,
15,
-10,
16,
-2,
-8,
19,
13,
23,
-14,
-30,
22,
59,
-7,
-25,
-22,
-28,
8,
-29,
13,
16,
11,
-13,
-9,
20,
-18,
56,
4,
-14,
-3,
2,
-3,
-31,
5,
56,
-17,
-31,
2,
-30,
-31,
-68,
-41,
36,
-54,
9,
-28,
49,
22,
-1,
-25,
37,
10,
-9,
7,
12,
10,
-5,
13,
68,
-45,
23,
-22,
-57,
11,
-2,
-17,
13,
-7,
39,
-7,
2,
7,
-5,
-16,
-20,
9,
9,
46,
-14,
10,
63,
11,
-4,
17,
-32,
-26,
-26,
-6,
36,
-21,
45,
23,
11,
-52,
-16,
-24,
3,
-7,
45,
43,
5,
54,
10,
-11,
-27,
-43,
58,
-2,
-52,
-6,
-6,
-38,
-23,
7,
22,
-9,
48,
2,
12,
2,
-4,
-1,
-14,
-8,
44,
2,
-55,
13,
9,
-3,
-12,
26,
39,
6,
-18,
-24,
-8,
4,
-2,
38,
31,
-3,
-9,
-8,
22,
-23,
-6,
-31,
-28,
-56,
-37,
-5,
-8,
-39,
0,
-1,
-18,
4,
-19,
-21,
-4,
22,
-30,
36,
11,
19,
-29,
13,
-44,
0,
2,
53
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
International Fidelity Insurance Company (herein referred to as the insurance company) appeals from the order and judgment of the Mineral County District Court discharging half of the forfeiture of a $50,000 bail bond. The insurance company contends first, that the trial court erred in excluding relevant, admissible evidence concerning the excuse of mental illness offered to exonerate the bond forfeiture, and second, that there is insufficient evidence to support the trial court’s determination.
Defendant Musgrove was charged with mitigated deliberate homicide, and a $50,000 bail bond was posted by the insurance company. During the course of the defendant’s trial in January 1979, defendant was free under the insurance company’s bond. The defendant attended all the proceeding during the course of the trial. On Friday, January 26, 1979, the trial court recessed the trial at the close of the evidence. The defendant was required to appear the following Monday, when final arguments to the jury were to take place. The defendant failed to appear on Monday, having left Montana and fled to Texas over the weekend. The trial court desiring to avoid a mistrial, recessed the defendant’s trial until Wednesday, February 7, 1979.
Following the defendant’s failure to appear, the trial court entered an order declaring that the insurance company’s surety bond be forfeited in its entirety; and also issued a bench warrant for the defendant’s arrest. The defendant, at the urging of and with the assistance of the insurance company’s representatives, surrendered to law enforcement officers in Mineral County on February 6, 1979. The defendant attended the final day of trial on February 7, 1979, and was convicted and sentenced.
The insurance company petitioned the trial court, pursuant to section 46-9-503, MCA, to enter an order discharging the bond forfeiture. A hearing was held on February 21, 1979; and the trial court found that the defendant willfully failed to appear for the conclusion of his trial on January 29, 1979 and departed the State of Montana to the State of Texas. The trial court further found that the defendant was returned to Montana and surrendered himself to the Mineral County Sheriff on February 6, 1979, through the efforts and with the assistance of representatives of the insurance company. The trial court ordered that the forfeiture of the $50,000 bond be discharged in the amount of $25,000; and entered judgment against the defendant and the insurance company in the amount of $25,000. This appeal followed.
The controlling statute is section 46-9-503(3), MCA, which provides:
“If at any time within 30 days after the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence or failure to comply with the conditions of the bail, the court, in its discretion, may direct the forfeiture of the bail to be discharged upon such terms as may be just.”
The insurance company’s sole ground for relief from the bond forfeiture was the defendant’s mental condition constituted, under section 46-9-503(3), a satisfactory excuse for the defendant’s failure to appear on January 29, 1979. At the hearing the insurance company offered evidence to demonstrate that the defendant was in such a mental state, involving acute distress, as to be suicidal in nature, which prompted him to flee to Texas.
After leaving Montana and fleeing to Texas, the defendant went to and admitted himself into the Villa Rosa Hospital in San Antonio, Texas, on January 31, 1979. Dr. Allen C. Chittenden examined the defendant on February 1, 1979, and diagnosed the defendant as suffering from psychotic depression-suicide. Dr. Chit-tenden’s report was admitted into evidence at the hearing. Additionally, on the morning of the bond forfeiture-exoneration hearing, Dr. Chittenden called the trial judge and expressed that his main concern was that the defendant might attempt suicide while being incarcerated.
Jean Ganatta, the representative of the insurance company who brought the defendant back to Montana, testified that the defendant appeared in her office in Pueblo, Colorado on Saturday, February 3, 1979. Ganatta testified that the defendant looked terrible, was very nervous, shaking all over, and looked like he was scared to death.
The insurance company contends that the trial court erred in excluding relevant, admissible evidence directly concerning the excuse of mental illness offered to exonerate the bond forfeiture. The insurance company unsuccessfully attempted to offer testimony of the defendant’s wife as to her observation of the defendant’s appearance and condition.
The trial court improperly excluded the wife’s opinion testimony. The wife’s opinion testimony was offered by the insurance company in order to meet the statutory criteria of satisfactory excuse for defendant’s failure to appear. Under Rule 701, M.R. Evid., opinion testimony of a lay witness is admissible. Here the wife’s observations as to the defendant’s appearance and condition is clearly relevant, admissible lay opinion testimony.
Additionally, the trial court improperly commented upon the defendant’s state of mind concerning the defendant’s failure to appear when it said:
“THE COURT: Well, Mr. Delaney, there isn’t any doubt in my mind as the judge who presided on the trial that at that particular time Mr. Musgrove knew the jury was going to find him guilty because the testimony was so obvious in that direction and the Instructions settled by the Court was so obvious in that direction. I know that he knew this was going to happen and I know that because of that he failed to show up the next day. There is no doubt in my mind that he was upset. I think I would have been.”
The trial court’s statements indicate to us a bias which resulted in effectively denying the insurance company an opportunity to establish its case of excuse in order to exonerate the bond forfeiture.
As another ground of appeal, the insurance company contends that the evidence does not support the order and judgment of the trial court which discharged half of the forfeiture of the $50,000 bond. Indeed, the insurance company argues that the $25,000 bond forfeiture is in effect, a penalty not authorized by law. The State, on the other hand, contends that section 46-9-503(3) permits just the kind of action that was taken here.
The purpose of bail, however, under section 46-9-101, MCA, is to insure the presence of a defendant in a pending criminal proceeding. It is not the purpose of bail to punish a defendant or surety, nor to increase the revenue of the state. See Allison v. People (1955), 132 Colo. 56, 286 P.2d 1102; Application of Shetsky (1953), 239 Minn. 463, 60 N.W.2d 40; State v. O'Day (1950), 36 Wash.2d 146, 216 P.2d 732. Here, the record shows that Mineral County incurred approximately $1,000 in additional expense because the defendant fled the jurisdiction. While we cannot say that $ 1,000 is the appropriate measure of a bond forfeiture, it is clear here that the $25,000 bond forfeiture was imposed as a penalty.
At the hearing the State requested that at least $25,000 of the bond be forfeited as a penalty to the defendant and to insure that funds would be available for another possible trial. The State argued:
“Now, I’m not going to argue that the entire bond be forfeited. As counsel has shown the bonding company did return Mr. Musgrove to the State of Montana. They said willingly, I won’t argue with that. I will give him that. But when fled, he did so willfully and I would advise the Court of one final factor. The very flight of the Defendant from the State of Montana I’m sure will be used as grounds for an appeal to this matter and if that be the case, Mineral County will be put to the expense of a third trial in this matter. In addition the Defendant has now indicated that he must require court appointed counsel which also includes the production of the transcript at County expense. I would move the Court that at least twenty-five thousand dollars of this bond be forfeited in the interest of justice both as a penalty to the Defendant and, also, to insure that sufficient funds will be available for a third trial.”
At the conclusion of the hearing, the trial court made the following statements concerning the bond forfeiture.
“The Defendant Mr. Musgrove is the one that committed the wrong here and from personal standpoint, Dexter, you say the only loss was the dollars the County put out. I promise you that the County Attorney in Superior and the Judge in that particular case sweated out twenty-five thousand dollars worth of sweatbeads trying to figure out what to do in this particular case. It was a very agonizing situation and, I think, the whole purpose of a bond is to make sure that the Court is not subjected to that type of pressure. “I think you said there was some justification for the Defendant to flee and that the Court should take that into consideration. There was lots of justification; he was guilty as all get out. A jury found twice and I heard the testimony; I certainly agree with that. But that’s not justification to flee. That’s a poor excuse and the bonding company is the one that is responsible here. If they are going to put up a bond for a person, I think they should somewhat administer that bond and make sure the Defendant is there. It is not the responsibility of the Court to do it. As a matter-of-fact, the Court can’t do anything with a bond out. It is not the responsibility of the County Attorney or the Sheriff; they can’t do anything. The bonding company here is in the wrong. The Defendant is in the wrong. But I do appreciate the bonding company bringing the Defendant back so that we could conclude the trial before a mistrial was declared and, I think the County Attorney was very generous in offering the bonding company a twenty-five thousand dollar rebate or exoneration for that purpose.”
Our review of the record leaves no doubt that the $25,000 bond forfeiture was imposed as a penalty.
The appellate record is also muddied by the failure of the trial court to enter proper findings of fact and conclusions of law. Rather, the trial court simply entered an all-encompassing conclusion that the defendant willfully failed to appear for the conclusion of his trial. The insurance company’s contentions as to excuse were not addressed at all. Nor were findings entered supporting or explaining how the trial court determined that there should be a $25,000 bond forfeiture. The record before us, however, leads to the inescapable conclusion that it was imposed as a penalty, an impermissible penalty.
It is clear here that the real question is reaching a decision to discharge the bail “upon such terms as may be just.” Section 46-9-503 (3). The prosecutor argued that he would not argue that the entire bond be forfeited and the trial court in effect agreed in not declaring a forfeiture of the entire amount.
This cause is remanded to the District Court for a determination of “just terms” for discharging the bail. Any judgment reached shall not consider as factors either a penalty to the defendant or the insurance company or revenue to the state.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY, concur.
|
[
1,
8,
-16,
10,
-32,
-5,
7,
-37,
22,
-1,
50,
20,
8,
-1,
32,
-23,
-20,
-15,
52,
9,
23,
-16,
-45,
-10,
-32,
-45,
8,
-15,
-10,
5,
16,
16,
-4,
-45,
-6,
30,
-25,
0,
-53,
17,
19,
14,
35,
-10,
-33,
-21,
9,
-46,
20,
2,
25,
18,
29,
0,
9,
14,
27,
-13,
-19,
14,
25,
-35,
26,
18,
6,
-2,
16,
48,
2,
10,
32,
-20,
-10,
44,
19,
-28,
24,
-32,
-12,
-28,
-10,
2,
12,
-30,
-24,
-49,
-85,
-59,
9,
19,
-18,
-14,
-24,
-51,
-42,
8,
7,
-45,
-4,
24,
-8,
-42,
-54,
-1,
-31,
63,
26,
-32,
22,
32,
-3,
10,
-21,
13,
16,
10,
-69,
-5,
8,
27,
-9,
24,
12,
-9,
-14,
-46,
71,
-7,
27,
-5,
-38,
14,
50,
12,
-49,
-13,
2,
-22,
3,
37,
-19,
24,
47,
12,
11,
39,
50,
-64,
4,
62,
-20,
14,
54,
0,
79,
-25,
-21,
-34,
-14,
-26,
13,
-29,
10,
40,
0,
18,
21,
-9,
-5,
23,
-23,
-16,
0,
29,
16,
23,
-13,
-5,
-1,
29,
-48,
-1,
-22,
-3,
60,
-2,
19,
9,
25,
37,
8,
-9,
-61,
34,
-15,
-8,
60,
20,
-4,
5,
31,
-3,
-11,
2,
-32,
25,
-12,
1,
49,
16,
25,
-26,
-18,
11,
-13,
44,
-46,
-14,
21,
-32,
-61,
28,
-54,
-30,
-22,
-70,
-32,
4,
-40,
-45,
-35,
14,
38,
23,
-17,
45,
-7,
-27,
30,
7,
-25,
-5,
64,
5,
64,
-8,
17,
-39,
-66,
-7,
-11,
0,
68,
59,
2,
-30,
24,
-50,
-29,
-9,
24,
-19,
-12,
7,
45,
-15,
20,
-23,
6,
-2,
20,
2,
21,
-71,
-19,
-49,
42,
1,
26,
24,
35,
39,
-46,
20,
9,
-5,
17,
50,
-33,
-26,
33,
-18,
23,
-49,
29,
-53,
28,
-57,
2,
3,
59,
42,
-38,
25,
-29,
29,
-15,
17,
-27,
57,
5,
26,
-80,
-17,
27,
-11,
17,
-28,
-10,
-63,
22,
37,
10,
-2,
1,
-25,
23,
-13,
-8,
24,
-65,
0,
-3,
3,
-35,
-26,
-47,
27,
25,
48,
-29,
-35,
-2,
25,
-38,
43,
41,
67,
-70,
6,
-47,
30,
0,
15,
-47,
13,
16,
-4,
0,
-8,
31,
1,
-28,
50,
-15,
-23,
-28,
16,
-37,
25,
27,
-34,
12,
-39,
29,
-8,
-5,
48,
-3,
-6,
11,
-27,
17,
-29,
20,
22,
25,
2,
-47,
0,
-80,
12,
28,
33,
2,
-5,
-39,
-36,
-13,
5,
25,
54,
-1,
-34,
-33,
-50,
53,
-26,
-14,
-31,
-30,
-8,
-21,
-10,
-2,
-23,
-39,
-32,
9,
-20,
45,
-10,
74,
-49,
-20,
23,
15,
42,
-48,
-45,
25,
84,
-15,
-16,
37,
-39,
-25,
-34,
15,
11,
3,
25,
-9,
-9,
36,
-36,
-1,
-52,
30,
-8,
21,
23,
19,
-11,
-58,
54,
8,
-31,
4,
-15,
33,
-16,
30,
-33,
19,
-18,
22,
-9,
34,
-42,
32,
-13,
-29,
10,
-13,
3,
6,
0,
-71,
12,
-35,
6,
-5,
21,
39,
-1,
42,
-35,
10,
55,
-13,
6,
23,
-20,
-16,
24,
22,
-6,
-6,
-30,
-14,
-53,
-33,
44,
-39,
19,
4,
-30,
-58,
35,
69,
42,
-5,
1,
7,
25,
-8,
0,
29,
-7,
-4,
28,
-26,
39,
-5,
-24,
-33,
7,
-3,
-26,
-20,
33,
23,
-42,
0,
32,
-17,
10,
-24,
-41,
15,
23,
1,
9,
-6,
-22,
41,
-13,
13,
0,
0,
-14,
30,
-7,
0,
-9,
42,
17,
-15,
7,
-1,
7,
-27,
43,
-21,
-22,
-23,
-15,
34,
27,
-6,
41,
14,
5,
42,
43,
-38,
5,
-9,
31,
38,
11,
-27,
3,
-50,
35,
62,
-34,
-43,
-29,
26,
-46,
24,
9,
13,
-26,
24,
-14,
-72,
0,
-48,
-6,
-4,
-2,
12,
-40,
23,
-5,
27,
39,
-15,
14,
-8,
-13,
-1,
27,
3,
-48,
14,
-27,
16,
-15,
42,
35,
-35,
-4,
-22,
-21,
8,
62,
-7,
-50,
19,
-7,
-1,
-52,
-15,
48,
-42,
-53,
-14,
-6,
48,
-21,
-7,
11,
20,
-53,
49,
-35,
-18,
20,
5,
-46,
-29,
-27,
38,
-9,
-5,
9,
5,
12,
-58,
-6,
-42,
-4,
7,
6,
4,
60,
58,
-37,
-12,
-59,
21,
0,
38,
-31,
46,
82,
-22,
-24,
10,
59,
-8,
10,
-51,
15,
-12,
10,
-17,
83,
-26,
14,
-30,
-23,
37,
-4,
-40,
-45,
41,
32,
-41,
2,
8,
37,
21,
-18,
11,
43,
-10,
-35,
-3,
18,
-45,
-12,
-60,
21,
-14,
-43,
2,
-102,
26,
37,
-45,
20,
-9,
35,
-4,
-14,
47,
-12,
-17,
37,
9,
-13,
11,
-30,
-33,
-2,
19,
1,
26,
79,
-51,
19,
-36,
-17,
42,
-44,
37,
35,
27,
-11,
7,
9,
6,
11,
-35,
-39,
43,
25,
0,
-10,
-14,
-26,
1,
0,
-19,
2,
16,
49,
-6,
-6,
34,
51,
33,
-9,
-54,
22,
-7,
36,
-48,
-56,
-46,
-16,
-28,
29,
8,
1,
-14,
0,
6,
4,
-30,
30,
34,
48,
-49,
76,
48,
36,
3,
16,
5,
10,
23,
23,
5,
-25,
-10,
14,
49,
-7,
10,
29,
-91,
-47,
5,
0,
-41,
-16,
27,
-7,
16,
-9,
-30,
-26,
-14,
-5,
-55,
-2,
1,
-8,
4,
-11,
18,
-15,
-35,
-28,
36,
-26,
-6,
-1,
39,
13,
6,
-44,
-1,
42,
16,
7,
-12,
-2,
-13,
-4,
-12,
-28,
-3,
7,
38,
11,
-46,
-23,
27,
-17,
14,
-15,
-40,
-43,
-29,
11,
12,
50,
-46,
10,
-9,
-6,
77,
-6,
-2,
-13,
23,
15,
-81,
-98,
8,
14,
12,
27,
0,
-30,
-27,
-34,
13,
-9,
46,
-24,
8,
-49,
22,
-2,
0,
42,
-4,
23,
18,
42,
-28,
19,
19,
17,
-10,
2,
-21,
50,
-29,
-7,
-11,
38,
-25,
-5,
38,
57,
13,
21,
-20,
23,
13,
58,
-25,
7,
1,
0,
-4,
-49,
9,
20,
-34,
-1,
39,
-5,
-12,
17,
-10,
39,
35,
-32,
-33,
10,
4,
-4,
23,
59,
-2,
23,
-16,
-36,
55,
-15,
-80,
1,
-34,
-39,
13,
15,
26,
-19,
7,
-18,
60,
-15,
-6,
-47,
-33,
-17,
31,
22,
30,
-61,
19,
13,
0,
-29,
12,
-6,
4,
4,
-5,
12,
4,
-17,
9,
29,
47,
41,
17,
-22,
-51,
-21,
12,
57,
26,
7,
-6,
35,
-2,
-6,
52,
-5,
-53,
-13,
2,
-61,
-28,
34,
-65,
14,
-15,
7,
-35,
37,
-2,
28
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.