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MR. JUSTICE ARNOLD
delivered the opinion of the court.
This is an appeal from a judgment based upon a verdict directed for the defendant Montgomery Ward & Company and a judgment based upon a nonsuit as to the other defendant, A. J. Hedensten, who was a store manager for his eodefendant.
The defendant filed a motion to strike the bill of exceptions from the record before this court for the reason that plaintiff prematurely obtained additional time to prepare, serve and file her bill of exceptions. It appears that when the court sustained the defendant company’s motion for a directed verdict, and before the verdict was actually signed by the foreman of the jury, and before judgment was actually entered, the plaintiff asked for sixty days in addition to the time allowed by law to prepare, serve and file her bill of exceptions, which request the court granted, the defendants interposing no objection whatever. We believe the request was not prematurely made. The court had already taken action on the motion directing a verdict and the matters of signing the verdict and entering judgment were mere formalities following such action of the court. Section 9390, Revised Codes, provides that the person desiring “to present on appeal the proceedings had at the trial, must, within fifteen days after the entry of judgment * * * or within such further time as the court or judge thereof may allow, not to exceed sixty days * * prepare and file with the clerk of the court * * * a bill of exceptions.” This limitation of time is for the purpose of avoiding delay in perfecting appeals. The statute does not provide that the additional time may be allowed by the court only after the entry of judgment. The granting of such additional time after a verdict has been directed by the court and before actual entry of judgment does not violate the purpose or letter of this statute in any manner; hence the motion to strike the bill of exceptions is denied.
The plaintiff alleged that she received personal injuries in a fall on the floor in the basement of defendant company’s store, a foreign substance, claimed to be oil, having caused her to slip. She testified that as a customer of the defendant Montgomery Ward & Company she made some purchases in their store, and, while walking through'the basement, stepped into a pool of oil on the floor, slipped and fell against I a counter. She stated that after arising she walked to the! south end of the store, and an employee of the defendant com pany, by the name of Johnson, came up to her and asked her what had happened, and that she told him “to look up there and you will see.” When he had done so he exclaimed, “Oil” (accompanied with an oath), and called one of the clerks to bring a gunny sack and clean it up. She further stated from appearances a can had been setting a little ways from where the spot had accumulated.
Thereafter she was given a note from a store manager to call on a doctor for first aid, but stated that she was not going to a doctor as she did not know how badly hurt she was. Subsequently, using her words, “Quite a few days after the accident,” she consulted a doctor who, after examination, directed her to use liniment for her shoulder and arm. She stated that about twenty days after the accident she went to see the defendant Hedensten who met her outside the store and told her that the oil was spilled on the floor by some men who were working in the basement, and that he had at all times instructed the clerks in the basement to see that the floors were kept clean and that there was no excuse and that it was negligence and carelessness on the part of the clerks in the basement, and further that it had been there long enough to have been cleaned up. She further testified that she then made the statement, “Don’t put the fault on the clerks. They can’t watch all of it,” and he replied, “that is no excuse whatsoever. It was on there long enough to have been cleaned up.” This colloquy appears not once but several times in her testimony where the manager endeavors to put the blame on the clerks for not having removed the oil and to assume for his employer responsibility for her injury, and where she protests that the fault was not the clerks’, that they could not watch it all the time.
This testimony appears to be wholly incompatible with the subsequent claim of plaintiff and denial of liability of the defendants. It is elemental that admissions or declarations of the officers or agents of private corporations are not admissible unless they are made while acting within the scope of their authority as a part of the res gestae relating to the present transactions. For still stronger reasons the statements of subordinate agents are not admissions on the part of the corporation, unless they constitute a part of the res gestae. (Jones on Evidence, 2d ed., par. 268.)
The statements claimed to have been made by defendant Hedensten, store manager, are not res gestae, having been made about three weeks after the accident; neither do they tend to prove negligence as to the defendant company, as they were not made by the agent while accompanying an act which he was authorized to do. They were, at most, mere exclamations or conclusions on the part of the agent, and not binding. (Worden v. Humeston Ry. Co., 72 Iowa, 201, 33 N. W. 629; Butler v. Manhattan Ry. Co., 143 N. Y. 417, 38 N. E. 454, 42 Am. St. Rep. 738, 26 L. R. A. 46; Omaha & R. V. Ry. Co. v. Chollette, 41 Neb. 578, 59 N. W 921.)
If we assume that the agent did say, long after the accident, that the pool of oil had been spilled by independent workmen, and that “it had been there long enough to have been cleaned up,” yet we cannot say that this is any sufficient evidence to submit the question of negligence as to either defendant to the jury. The statement that it was there long enough to have been cleaned up is not equivalent to an admission that it was there long enough to impute negligence because it had not been cleaned up. If it was there for one minute, it was there long enough, to have been cleaned up; but the question was whether it was there long enough so that not discovering it and cleaning it up constituted negligence. Absolutely no time is fixed as to when the oil was spilled, or how long it was on the floor prior to the accident. The function of the jury in such cases is to determine, once the length of time the oil had been on the floor is ascertained, whether or not the defendants had sufficient notice as to its existence and time to have removed it. Here there is nothing to submit to the jury on the question: How long was the oil on the floor? Or on the question, the oil having been on the floor a minute, hour, day or week, did that constitute sufficient time for defendants and sufficient notice to them as to impute negligence to them for failure to remove the obstruction, under all surrounding circumstances? Suppose a traveler on a highway were to collide with an obstacle thereon, and later reported his collision to another person who had never before seen the obstacle, knew not how it had gotten on the highway and did not see the collision, and he were to exclaim, “That obstacle has been there long enough to have been removed.” By what process of reasoning or even guessing could a jury ascertain how long the obstacle had been on the highway? It is evident that such a statement, if actually made, would be without meaning as having no foundation to support it, and as not tending to show negligence.
The fact that defendants did not object to the introduction of the testimony of plaintiff concerning the alleged statements of defendant company’s manager in no way binds them on the question of negligence. If immaterial testimony enters the record without objection, it does not ipso facto become material; if evidence without probative force enters the record without objection, it is not thereby quickened with life or endowed with force or virtue.
It is noteworthy that plaintiff attempts to prove the vital elements of her case by putting words in the mouths of the defendant company’s employees, yet, though they were present at the trial, she did not call them as witnesses. She made frank and candid confessionalists out of them in her narration of their alleged statements made long after the accident, yet avoided putting them on the stand. Here the plaintiff failed to prove that defendants ever knew of the existence of the oil or foreign substance prior to the time she claims to have stepped into it. Not knowing when or by whom the substance was placed on the floor, how in the name of reason could the employees say that it was there long enough to have been removed or that it was there so long that the failure to remove it constituted negligence?
When statements of agents are admissible against the principal is succinctly and comprehensively set out in 22 C. J. 379: “It is established that admissions made by an agent in a narrative statement of a past transaction cannot be received in evidence against Ms principal. The reason for such exclusion is sometimes stated to be that statements of this character are not part of the res gestae, but a ground of exclusion quite as potent may be found in a consideration of the fact that it is no part of the agent’s duty to prejudice his principal by narrative statements construing or otherwise affecting his principal’s rights or liabilities, or to discuss the propriety of his conduct even in relation to the subject matter of the agency.” Likewise, in 22 C. J. 386: “Admissions of an agent of a private corporation, when relevant to the issues, are competent against the corporation, provided, but not unless, they are within the scope of the powers of the declarant, were made in connection with the performance of his duties, and are statements of fact rather than mere expressions of opinion.”
The minority opinion of dissent cites 22 C. J. 382, under note 55 (e), in support of the admissibility of the manager’s statement for the purpose of showing knowledge of the defect. Aside from the fact that the statement fails to show knowledge, as heretofore pointed out, the citation is not applicable. In fact, the cases cited under the footnote referred to, do not contradict the rule announced in 22 C. J. 379, but in some instances cite and approve the rule. One of the cases cited is V andewater v. Town of Wappinger, 69 App. Div. 325, 74 N. Y. Supp. 699, 701, which distinguishes the rule announced in the majority opinion from that in the dissent, in the following language: “The admissions and declarations of the officers of the town after the accident were competent for the purpose of showing that the town, through its officers, had had notice of the condition of the bridge ® * * his declarations showing that his attention had been called to the condition of the bridge before the accident were properly admitted for the purpose of showing notice to the town, out of which its liability arises. * * * In Whitaker v. Railroad Co., 51 N. Y. 295, it was held that in an action brought * * * to recover damages for a willful injury inflicted by a driver of defendant’s carriage, the declarations of the driver were not competent evidence against the defendant unless it appeared affirmatively that they were made at the time the injury was inflicted; while in Furst v. Railroad Co., 72 N. Y. 542, where a witness was permitted to testify that the conductor of a car causing injury to the plaintiff’s ward had said to him, after the accident, ‘He told me he thinks the driver did not look, or the child would not be run over,’ it was held that the conversation was improperly admitted as against the defendant. This is quite a different matter, however, from the declarations of the officials of the town that they had had their attention called to the condition of this bridge, and that they had condemned it, because it was necessary for the plaintiff to show notice to the town; and, if the town officers knew of the condition of the bridge, it was some evidence of negligence, — the fact that it had been allowed to remain without the necessary repairs. If the officers of the street railroads, in the cases above cited, had declared that the driver was negligent, the cases would be nearer an analogy, and a rule asserted by the courts would be controlling. ’ ’
It is only necessary to compare the facts in the above case, and the declarations of the town officers, with the facts in the case at bar, and the declarations of the manager made twenty days after the accident, to show how far apart the cases are. In the cited case a bridge was in defective condition. This condition was known to the declarants and they had condemned it after its condition was called to their attention. In the case at bar the oil had not been placed on the floor by the defendants as a floor dressing, but was the result of an accidental spilling by an independent contractor, so far as the record shows, and covered a small area. The declarant was never shown to have been at the scene of the accident, nor shown to have ever seen the oil, either before or after the accident. Hence the question of knowledge or notice of the defect, or presence of oil, is not answered by his declaration.
At the conclusion of plaintiff’s evidence the court sustained a motion for nonsuit as to the defendant Hedensten and denied it as to the defendant Montgomery Ward & Company.
A witness for the defendants by the name of Gordon, who was employed by the defendant company in Great Falls at the time of the accident, and who at the time of the trial was employed by that defendant in California, testified that he cleaned up the pool of gasoline which approximately was twenty-four inches in diameter, and that he was positive that it was gasoline and not oil; that a blow torch was sitting approximately twelve inches from the pool of gasoline; that one of two electricians of the Palmquist Electrical Company, who were working in the basement on a contract job, stated that the gasoline had been spilled while they were filling the blow torch. All conversations claimed by plaintiff to have taken place between herself and the witnesses Iiedensten, Gordon and Johnson were denied by those witnesses.
During the introduction of rebuttal evidence the plaintiff testified that the following conversation took place between Johnson and Gordon, two employees of defendant company: “Mr. Johnson looked down and said, ‘Oh, hell. How long has that oil been on there.’ And Mr. Gordon said, ‘I don’t think it has been on there for more than half an hour and I intended to wipe it up, but I was so busy I forgot it.’ ” On motion of. the defendants this was stricken as improper evidence on rebuttal. Plaintiff stated that this conversation took place after the accident, after she had left the scene thereof and had subsequently returned, and after Johnson had called a clerk to wipe up the oil. It was not shown that the clerk had seen the accident or knew of the presence of the oil. This alleged statement by Gordon was not res gestae, as it was not made during the progress of the event, or by a witness to it. It was not contemporaneous with the transaction but a mere narrative of a transaction wholly completed, and was inadmissible. In fact, it did not relate to the circumstances of the accident, but to the cause of his delay in wiping up the oil. If anything, it was colloquy between two employees. Had there been no accident, the same words would have been used by the clerk in explaining to his superior the reason why he had not wiped up the oil. The cause of the accident was the oil or foreign substance. Its presence on the floor was not questioned. If, as here, a declaration has its force by itself as an abstract statement detached from any particular fact in question, depending for its effect upon the credit of the person making it, it is not admissible, but is a mere narrative wholly detached from the fact to be proved. (Lund v. Inhabitants of Tyngsborough, 9 Cush. (Mass.) 36; 22 C. J. 379.)
On the previous day, all of plaintiff’s direct testimony relating to the removal of the spot of oil was as follows: “Mr. Johnson approached the point where I was. He said, ‘Well, what in the world have you done, Ross?’ I said, ‘Well, you just look up there and you will see.’ And he took me by the arm and he said, ‘Oil’ (with an oath). And he called one of the clerks in the back of the store to come and bring a gunny sack and clean the oil.” Later she reiterated this testimony as follows: “He called one of the clerks in the back of the store to bring a gunny sack up and clean the oil, and a man came up with a gunny sack and cleaned it as he supposed he would have cleaned it. Mr. Johnson told me he had transferred him away from here, so I don’t know the clerk at all. Mr. Johnson and I stood there while the man cleaned the oil with a gunny sack. He wiped it up the best he thought he could, but he didn’t.” Still later, after narrating other conversation between herself and Johnson, she testified as follows: “Then he took my arm and walked up the aisle to where I fell, and I said, ‘Look Mr. Johnson.’ He looked down and he said, (with an oath), ‘He hasn’t cleaned it up yet.’ And he said, ‘Say, come back and clean this up before somebody else gets hurt.’ A man then came back and cleaned it up again a second time.”
It is apparent that the plaintiff was endeavoring to supply a necessary element in her case by rebuttal. It is observed that she detailed verbatim the conversation alleged to have taken place at the time of the accident, in her case in chief, and made absolutely no mention of the statement of the witness Gordon that the oil had been there a half hour and he was too busy to clean it up and had forgotten it. The first day, in direct testimony, she referred to the witness as “a man came back and cleaned it up.” The second day, in rebuttal, she referred to the witness as “Mr. Gordon,” a number of times in narrating the events. The court was clearly within its discretion in striking the testimony, on motion, as improper rebuttal, and also as flagrantly at variance with the story of the previous day.
Counsel for the plaintiff then asked to open the case in chief, which was objected to on the part of the defendants as the witness Gordon had been excused the previous day, by stipulation of counsel, and had returned to his home in California. The plaintiff interposed no objection to the ruling of the court refusing permission to reopen her case.
The defendant company thereupon moved for a directed verdict, chiefly on the grounds that there was no evidence in the record that defendant company or its employees had caused any oil or gasoline to be placed upon the floor; no evidence that defendant company had negligently engaged and retained defendant Hedensten in its employ after inviting plaintiff into its premises; no evidence that defendant company negligently failed to warn plaintiff concerning the pool of oil or negligently omitted to remove the oil after it had accumulated or after defendants knew, or in the exercise of reasonable care should have known, that any pool of oil or gasoline was upon the floor, or failed to make a reasonable or any inspection of its floor to ascertain if it was reasonably safe. After argument of defendants ’ motion for directed verdict, the plaintiff moved to dismiss the case without prejudice, and the court indicated that the motion came too late, and thereupon sustained the motion for directed verdict.
The appellant (plaintiff) assigns four specifications of error: First, that the court erred in granting the motion for nonsuit of the defendant Hedensten; second, that the court erred in granting the motion for directed verdict; third, the court erred in denying plaintiff’s motion for a new trial; fourth, that the court erred in sustaining the defendants’ objection to admission of evidence relating to disability rating. At the oral argument the appellant offered the proposed additional specification of error No. 5, reciting that the court erred in striking the testimony of the appellant on rebuttal relating to statements made as a part of the res gestae by Gordon and Johnson heretofore set out.
The appellant contends that it is not clear that the court struck the evidence, but a reading of the transcript convinces •us that the opposite is true. In fact, after the court struck the evidence the appellant moved to open up her case in chief in order that the stricken evidence could be properly offered, which motion the court denied inasmuch as the witness Gordon had with plaintiff’s consent been excused and had returned to California the previous day.
This court has previously disapproved the practice of adding specifications of error after appellant’s brief is filed. Here counsel by stipulation, approximately three months before the ease was set for argument in this court, agreed that the motion to amend by adding a specification of error could be made at the time of argument. We believe that counsel has made scant showing entitling him to amend by adding to his specifications of error, but in view of his statement, and not as a precedent for allowance of additional specifications without adequate showing, we have decided to allow the amendment and consider it. We hold that the trial court committed no error in striking the testimony. The rulings of the trial court in such matters are not, as a rule, reversible for error. (Jones on Evidence, par. 811.) It was not the court’s action in striking the evidence that prevented presentation of the evidence but its refusal to allow plaintiff to re-open, which is not here complained of.
From the evidence heretofore outlined and well-settled law, it is clear that the plaintiff, in order to prove negligence on the part of the defendants, must show that the defendants placed the oil or foreign substance on the floor, or had knowledge of it being there, or that it was on the floor such a length of time that the defendants should have known of its presence. (McEnaney v. City of Butte, 43 Mont. 526, 117 Pac. 893; Phillips v. Butte Jockey Club & Fair Assn., 46 Mont. 338, 127 Pac. 1011, 42 L. R. A. (n. s.), 1076; Sears, Roebuck & Co. v. Johnson, (10 Cir.) 91 Fed. (2d) 332.) The plaintiff also recog nized the necessity of proving at least one of these premises by appropriately pleading them in her complaint.
It is clear from reading the record in this case that the plaintiff has failed to make out a prima facie case. She stated that the foreign substance was “gasoline, or oil, or whatever it was I slipped on” and apparently had no clear knowledge as to its composition. On the other hand, the defendants’ witnesses testified positively that it was gasoline. Likewise the plaintiff failed to show that the matter, whether it was oil or gasoline, was placed there by the defendants, or that they had any notice whatever of its presence prior to the time she stepped on it, or that it had been on the floor for such a length of time that the defendants should have known of its presence. This lack of proof is fatal to her case. The defendants offered positive testimony that an inspection of the floor is made as a matter of course during the morning of each day, and that a constant lookout is kept throughout the day by all clerks in order that the floor may be kept free of foreign substance. This positive testimony stands uneontradieted.
In the case of Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063, 1067, this court stated: “The owner is not an insurer of the safety of his customers. He is bound only to use reasonable care to keep his premises in such a condition that those invited there by him may not be unnecessarily exposed to danger.” It is clear from the evidence that plaintiff failed to show that the defendants did not exercise all required precaution.
The plaintiff having failed to make out a prima facie case of negligence against defendants, it is unnecessary to consider the remaining specification of error, as it is clear that the court properly sustained the motion for nonsuit on the part of defendant Hedensten and properly directed a verdict in favor of the defendant Montgomery Ward & Company.
The judgments are affirmed.
Mr. Chief Justice Johnson and Associate Justice Morris concur.
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The motive power of the Chicago, Milwaukee & St. Paul Railway for a distance of 440 miles in this state, extending across several counties thereof, including the county of Granite, is electric; that is to say, its trains are drawn by electric motors instead of by steam engines. These motors receive the current necessary to actuate them from a trolley wire suspended directly over the center of each track. The currentitself comes from remote plants not owned by the railway, and is conveyed by means of poles, towers and wires — the property of the supplying company — to seven of fourteen substations, where it is transformed and sent out along a transmission line to the other substations. The transmission line is located on the right of way, at a uniform distance of thirty-eight feet from the center of the main track, and it, together with all the substations, belongs to the railway company. From the substations the transformed current is carried to the trolley wires, which are hung from poles and brackets spaced about one hundi'ed and fifty feet apart. These poles are set in the roadbed at a uniform distance of ten feet from the center line of the track, and they carry the necessary feeders, signal wires, message wires, wires for the power limit and indicating systems. To the same poles is attached a supplementary negative wire, which at certain points is connected with bonds attached to the rails, and the joints of all rails are bonded by a copper wire, so that, as the motor makes contact with the trolley wire, a circuit is completed through the rails, bonds and supplementary wire to the substations.
It is alleged in the complaint, which is by the railway company against the treasurer of Granite county, that this electrification system is used exclusively in the operation of its railroad, is necessary to the efficient and economical operation thereof, and constitutes a single continuous system; that the company made no return of it to the assessor of Granite county for the year 191.7, but said assessor, notwithstanding, assessed 29.63 miles of the transmission line at a valuation of $2,830 per mile, and 33.71 miles of the trolley line at $5,179 per mile, which assessment the company contested without avail before the county board of equalization, upon the ground that the property so assessed is within the jurisdiction of and assessable only by the state board of equalization, under the provisions of section 16, Article XII, of the state Constitution; that the taxes levied accordingly, amounting to $7,756.49, were paid under protest specifying, the same ground; that the state board of equalization in its assessment of the franchise, roadway, roadbed, rails, and rolling stock of the company for the year 1917 included in and valued as a part of the valuation placed upon such property the said electrification system hereinabove described. The prayer is for a recovery of the moneys so paid under protest. The treasurer filed a general demurrer, and, this being sustained, judgment of dismissal was entered, from which the railway company appeals.
But one question is presented, whether the county assessor of Granite or the state board of equalization had the authority to assess the transmission line, or the trolley line, or both, as constituting the system of electrification; for it must be conceded — as the attorney general does concede — that both agencies could not act upon the same property, and the company cannot lawfully be subjected, as it has been, to a double imposition of the same tax upon the same property.
No solution of this question is entirely free from objection. Section 16 of Article XII of the Constitution provides: “All property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equalization and the same shall be apportioned to the counties, cities, towns, townships and school districts in which such railroads are located, in proportion to the number of miles of railway, laid in such counties, cities, towns, townships and school districts.” The meaning of this is perfectly clear, viz., whatsoever is franchise, or roadway, or road bed, or rails, or rolling stock of a railroad operating in more than one county must be assessed by the state board of equalization; all other property, whether it be of a railroad or other owner, may or may not be similarly assessed, according to the provisions of statute in existence at any given time. So far as it goes, this distinction may be said to indicate a policy to leave with the state board such railroad property as is continuous, as constitutes the necessary corpus of the railroad, as is not susceptible of a general valuation in sections. But this indication is only so far as the language permits, for whatever the reason may have been, the restriction of the language to franchise, roadway, roadbed, rails and rolling stock must be taken as conclusive. (Northern Pac. Ry. Co. v. Brogan, 52 Mont. 461, 158 Pac. 820.) That it does not go so far as to comprehend a telegraph line placed on the right of way and used only for railroad purposes was decided in the Brogan Case just cited, and that it does not comprehend any other structures similarly placed follows of necessity if we are to adhere to that decision. We have carefully re-examined that decision, and we are satisfied with it as a correct application of the constitutional provision here involved to the facts of that case, and under it we are obliged to hold that the transmission line now in question is no more a part of the roadbed or roadway than the substations which it connects. It was therefore properly assessable by the assessor of Granite, and not by the state board of equalization, unless it can be considered as part of the franchise, rails or rolling stock. That it cannot be considered as part of the franchise or rails is conceded. But there is contention that it properly belongs to rolling stock because the electrification system of which it is a part takes the place of the steam engine, which is rolling stock, as well as of cars — one of seven, it is said — necessary on steam railroads for the transportation of fuel. We think this is untenable. The electrification system does not take the place of steam engines or fuel cars, and would not be rolling stock if it did. (Ohio & M. Ry. Co. v. Weber, 96 Ill. 443; Flanagan v. Graham, 42 Or. 403, 71 Pac. 137, 790.) The place of tbe steam engines is taken by tbe electric motors, which are rolling stock assessable as such, and the fuel cars remain available for other service, and still assessable as rolling stock. If any analogy is applicable — and analogies in such matters are sometimes misleading — it would rather regard the electrification as fuel, for the entire system is- an elaborate contrivance to get to the electric motor the force in the form which will make the motor effective; and, as the steam engine is powerless without fuel, though still a steam engine, so the electric motor is dead without current, though it requires only that to make it powerful.
Considered separately, the trolley line is in a different situation. Though no part of the franchise or rolling stock, it is a permanent structure affixed to the roadbed; it extends continuously across the electrified section of the railroad; it is so constructed that all its wires and other attachments are connected to each other and to the rails, so that when a motor is in contact, a circuit is formed, and thus the motor is enabled to function. We are therefore, neither in principle nor on the facts, aided by the Brogan decision in determining the status of this trolley line, but may, if so it appears, view it as part of tiie roadbed, if not by reason of its integration, with the rails a part of them, and thus carry into effect the spirit as well as the letter of the constitutional provision here invoked. In the Brogcm Case we held the term “roadway” as used in section 16 of Article XII, to be by legislative construction synonymous with “right of way,” meaning by the latter term “the bare strip of ground upon which the roadbed, rails and other necessary appliances of the road are laid or erected, and not as including any of the improvements upon or annexed to that strip.” This was because of statutory provisions (Laws 1891, pp. 73-80), requiring structures on the right of way to be separately assessed by the assessor of each county. No such provisions and no such construction confront us here. On the contrary, there stands the rule, then and now expressed by statute, that structures affixed to realty are part of the realty to which they are affixed. The roadbed is that part of the right of way especially prepared for the emplacement of ties, rails and other necessary superstructures, and to which the ties, rails and other necessary superstructures are affixed. (Elliott on Railroads, 2d ed., sec. 5.) There seems to be no reason for the special mention of the roadbed in section 16 of Article XII, where the roadway, of which it is a part, and the rails, which form part of the superstructure upon it, are also mentioned, unless the roadbed was intended to embrace continuous structures permanently affixed to it, other than the rails. The same considerations which make it desirable that the rails and roadbed shall be assessed as a whole by the only agency which can so assesss them apply as well to any other continuous structure affixed to the roadbed. We are to bear in mind that the framers of the Constitution intended it to be a live instrument adaptable to the progress and changing conditions of men and affairs (State v. Keating, 53 Mont. 371, 163 Pac. 1156); and, if by the language of section 16, Article XII, they have necessarily excluded the transmission line, we are still to apply the general purpose of the provision written by them, and thus include within its purview the trolley line and its attachments, because they are within and not without the scope of the language employed.
We realize that in a large sense the transmission line and the trolley line are parts of one electrification system, and that their separation into two taxation jurisdictions may not, at first blush, commend itself. So, also, may it be said that the substations are part of the same electrification system; but it is not questioned that these are within the jurisdiction of the local assessor. In point of fact, every piece of property owned and used in the operation of a railroad contributes to the usefulness, and to some extent enters into the value, of the railroad considered as a whole, yet by the Constitution some of these are regarded as primarily local in character, and therefore not within the jurisdiction of the state board. If as a result the command of the Constitution becomes inharmonious with a strictly scientific view of what ought to be the rule, that is one of the many things which illustrate the price paid under all constitutional governments for the boon of certainty. But we are not required to increase this inharmony any more than we are authorized by any power vested in us to abolish it where it unquestionably exists.
It follows that so far as the trolley line is concerned, a cause of action was stated in the complaint, and the demurrer thereto should have been overruled. The judgment is therefore reversed and the cause remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. JUSTICE' COOPER
delivered the opinion of the court.
This is an appeal from an order allowing defendant in the divorce action instituted by Walter O. Lee against his wife, Mayme Lee, temporary alimony in the sum of $125 a month, suit money to the amount of $500, and the sum of $750 as counsel fees.
The complaint filed by the husband on March 2, 1918, sets forth substantially: The residence of plaintiff for more than one year within the state immediately preceding the beginning of the action for divorce; the intermarriage of the parties on December 3, 1910; the nonbirth of any children; the agreement between them to live separate and apart, entered into on March 6, 1917; and the fact of so living from that date until the filing of the complaint, the basis of which is adultery. Defendant interposed a demurrer which still remains undisposed of.
On April 5, 1918, defendant served and filed her notice of application for temporary alimony for support and maintenance during the pendency of the action, in the sum of $250 monthly; for the further sum of $1,000 as suit money to defend the action; and for $2,500 as attorney’s fees to enable her to prepare her defense, or such other sum as the court might deem just and proper. The motion was supported by the affidavit of the defendant, in which she set forth, among other things, that she was wholly without means to defend the action or to employ counsel, or to pay the costs and expenses incident to the suit, and that she has no property of any kind whatever which could be utilized by her in her defense of the action or with which to properly support herself during its pendency. She also alleged that the plaintiff was possessed of property worth in the neighborhood of $100,000, but made no mention of the separation agreement.
The application was heard upon the pleadings and certain oral and documentary evidence presented to us in a bill of exceptions.
The separation agreement provides, among other things, that plaintiff shall pay defendant the sum of. $10,000, to be evidenced by two promissory notes of $5,000! each, in addition to $100 per month from March 6 until November 1, 1917. It then concludes: “This agreement is a full and complete settlement of all property rights between the parties hereto as husband and wife, both now and after the death of either party to this agreement. From this time forward neither party shall have any interest of any kind or nature in or to any property, real, personal or mixed of the other party to this agreement, whether now owned by such party or hereafter acquired. In ease either party applies for a divorce, this agreement shall be a full settlement of all property rights in such divorce action, and neither party in such action shall have the right to obtain any part of the property of the other or require the party to .pay attorney’s fees, alimony or suit money on account of such action for divorce. In the future, neither party shall be under any obligation to support the other.”
The plaintiff testified that his assets were of the approximate value of $102,000, and that his liabilities amounted to about $81,000. The defendant admitted the execution of the separation agreement, stating that under it she had received the sum of $100 per month as provided therein. She further admitted that she still held the two notes for $5,000 each, mentioned as part of the consideration for the agreement; that one of the notes had matured in November, 1917, and that the other would mature “this fall,” meaning thereby the fall of last year; and that they provide for interest of eight per cent per annum from date. She also testified that she had not offered to return the money she had received for her support, but that she had used it to live on. As far as the record shows, until the filing of the complaint charging her with adultery, she expressed no dissatisfaction with the provision made for her in the separation agreement; and she gives no hint of any attempt whatever on the part of the plaintiff to take undue advantage of her in its execution.
The order of the court, is sought to be impeached on the ground that it is not supported by the evidence, and is invalid in face of the separation agreement which is binding upon the parties. At the hearing below, the defendant objected to the introduction of the separation agreement “upon the ground that it was irrelevant, incompetent and immaterial, and for the further reason that the contract will be in controversy in the action, and that she intended to void its terms and conditions, and that its introduction in evidence would involve the trial of her right to rescind and repudiate it, a matter which could not be determined in the proceeding.” The court permitted its introduction on the assumption, apparently, that the allowance of alimony pendente lite was a matter confided to its discretion, notwithstanding the terms and provisions pf the separation agreement, and made the order complained of. The question, therefore, presented to us for decision is whether the separation agreement was binding upon the parties and the court, or whether in the court was lodged the discretion to make the allowances irrespective of its provisions.
Our statutes (secs. 3694 and 3695, Rev. Codes) clearly [1] recognize the right of husband and wife to agree in writing to immediate separation, and to make provision for support of either of them. Section 3696 declares that the mutual consent of the parties is a sufficient consideration for such agreement. It seems now to be settled beyond cavil that agreements of this character, where it appears that they are fairly made and executed, free from fraud or imposition, coercion or duress, will be upheld and enforced. (Galusha v. Galusha, 116 N. Y. 635, 15 Am. St. Rep. 453, 6 L. R. A. 487, 22 N. E. 1114; Parsons v. Parsons, 23 Ky. Law Rep. 223, 62 S. W. 719; Bailey v. Dillon, 186 Mass. 244, 66 L. R. A. 427, 71 N. E. 538; Winter v. Winter, 191 N. Y. 462, 16 L. R. A. (n. s.) 710, 84 N. E. 382; Walker v. Walker, 9 Wall. 743, 19 L. Ed. 814.)
The case of Galusha v. Galusha, supra, was a case much like the one now before us. In that case Justice Parker, speaking for the New York court of appeals, said: “The trial court apparently adopted the view that, inasmuch as the statute empowers the court to require the wrongdoing husband to provide for the support of the wife, it may permit the agreement to stand, and, in addition thereto, compel the defendant to pay such other or further sum as the surrounding circumstances suggest to be just. * * In view of the situation of the parties, the contract was, at the time of the execution, valid and binding upon all the parties thereto. The defendant had fully performed on his part, and it would seem as if he were entitled to the protection which it was stipulated that full performance should give to him. * * * This authority to protect the wife in her means of support was not intended to take away from her the right to make such a settlement as she might deem best for her support and maintenance. The law looks favorably upon and encourages settlements made outside of court, between parties to a controversy. If, as in this case, the parties have legal capacity to contract, the subject of settlement is lawful, and the contract, without fraud or duress, is properly and voluntarily executed, the court will not interfere. To hold otherwise would be not only to establish a rule in violation of well-settled principles, but, in effect, it would enable the court to disregard entirely settlements of this character; for, if the court can decree that the husband must pay more than the parties have agreed upon, it is difficult to see any reason why it may not adjudge that the sum stipulated is in excess of the wife’s requirements, and decree that the husband contribute a smaller amount. ’ ’
The contract here in question is fair on its face. Defendant was a free agent in entering into it. She was the best judge of what her needs were for her support, and the contract provides for them, and releases plaintiff from further liability therefor. It recites that on account of divers and sundry unhappy differences between the parties, which renders it impossible for them to live together as husband and wife, they agree that they will “from this day” live separate and apart. She was not obliged to enter into the agreement, and, for aught that appears in the record, she did so freely and voluntarily, and we see no reason why she should not be bound by it, in the absence of a proper pleading in which the validity of the separation agreement is attacked directly and a defense to the cause of action on its merits is disclosed.
Neither is there in the record any offer to restore what she has received under the provisions of the agreement; and she now stands in the position of having received and accepted benefits under a contract she is seeking to have declared null and void, on nothing more substantial than the vagarious statements found in her testimony. This may not be permitted.
The court’s discretion in the premises did not go to the extent of authorizing it to arbitrarily set aside the valid agreement of the parties because, in its opinion, one of them had agreed to accept from the other less than she ought to have done.
The case of Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642, decided in 1897, is commented upon by counsel for both sides, and they seem to differ with regard to the views there expressed: There a separation agreement of similar import to the one now under discussion was the subject of controversy. The husband after making the agreement, refused to comply with its terms, and the wife brought suit against him for an accounting and to compel him to pay to plaintiff the proceeds derived from the sale of the product of certain oil wells covered by the agreement. The complaint in that case set forth the agreement in full, and on the face of it it appeared that the essential requirement (which will be found in the initial paragraph of the agreement involved here) was wanting. Defendant interposed a demurrer which was sustained, and from the judgment dismissing the complaint the appeal was taken. The following excerpt from the language of Justice Buck will suffice to make clear the distinction between that case and the instant one: “No intimation is contained in the complaint that there was any necessity or moving cause for the separation other than mere caprice or purely voluntary consent. There is no allegation under which any other evidence in respect to it could be presented to the court. The demurrer was properly sustained. Had the complaint properly set forth any urgency or reasonable necessity for the agreement, then, no doubt, a cause of action would have been stated. Had it properly averred that the plaintiff had been imposed upon or defrauded by her husband in respect to this agreement, such averments would no doubt have altered the phase of the situation and entitled the plaintiff to the relief demanded. But no such allegations appear.”
The order is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MB. JUSTICE HOLLOWAY
delivered' the opinion of the court.
This proceeding was submitted upon pleadings which raise no material issues of fact and presents for determination the question: Is the relator entitled, as a matter of right, to compensation for services rendered as a member of the house of representatives in the sixteenth legislative assembly ?
From the record we learn these facts: The county canvassing board declared the relator elected and issued to him a certificate of election. On the opening day of the session he presented his certificate, took the constitutional oath, assumed the duties of his office, participated in the organization of the house and thereafter in its subsequent proceedings. A contest of his election and the election of eight of his associates was instituted and a statement in writing setting forth the grounds of contest was presented to the house, referred to the appropriate standing committee which, after preliminary investigation, declined to proceed with a hearing until the contestants present their evidence in the form prescribed by sections 82-90, Bevise.d Codes. Thereafter, on January 22, the house adopted a resolution, which recited the facts relating to the contest and the action of the committee, and the further fact that a determination of the contest will involve delay, and concluded as follows: “Be it resolved: That said contestees be and they are hereby, declared to be members of this house and entitled to seats therein until the final determination of said contest; and, Be it further resolved, that the sergeant-at-arms be instructed to certify said members to the state auditor upon the pay-rolls of this house, and that the state auditor be advised that they are and shall be the qualified and acting members of this house until the final determination of said contest.”
We are not called upon to determine the abstract question: Is a de facto member of the legislative assembly entitled to com pensation pending a final determination of a contest which challenges his right to the seat? For present purposes we may assume that the dictum pronounced by this court in State ex rel. Thompson v. Kenney, 9 Mont. 223, 23 Pac. 733, expresses correctly the rule of procedure to be observed in a ease like the supposititious one involved in the question just propounded.
Conceding for present purposes that relator is entitled to the privileges and immunities of a member and that he may vote upon pending measures, it is nevertheless the contention that when he comes into court to enforce the payment of compensation on account of his services, he must assume the burden of showing that he is in right as well as in fact a member of the house. "We agree with this contention, for it is the general rule that the emoluments follow the legal title to the office. (Rasmussen v. Board, 8 Wyo. 277, 45 L. R. A. 295, 56 Pac. 1098.) "What evidence is necessary to exhibit to this court the fact that relator is a de jure officer?
The Constitution clothes each house of the legislative assembly with plenary and exclusive authority to determine upon the election, returns and qualifications of its members. (Art. Y, sec. 9.) The authority thus recognized as lodged in each house, is indispensable to its independence and existence. It emanates directly from the people to each house as an independent entity and cannot be delegated or granted aWay. Each house acts for itself -and from its decision there is no appeal. No individual, officer, court or other tribunal can infringe upon its exclusive prerogative to determine for itself, and in its own way, whether a person who presents himself for membership is entitled to a seat. (State ex rel. Smith v. District Court, 50 Mont. 134, 145 Pac. 721; State ex rel. Ford v. Cutts, 53 Mont. 300, 163 Pac. 470.) Either house may even act arbitrarily and in disregard of fundamental rights. It may oust a member whose election is beyond controversy and seat as a member a person who is disqualified for the office, but, if it should do so, there is still no recourse. This case presents no analogy to the one of a de facto state or county officer whose right is contested and whose title to office depends upon a judicial determination of the controversy. Belator holds his seat — as does every other member — at the will and pleasure of the house. If, then, the house has determined the right of relator to the office, its decision is conclusive upon the courts.
It cannot be maintained that it was the intention of the house in adopting the resolution above, to do nothing more than recognize the relator as a de facto member. That recognition had been accorded him from the hour the house assembled. If the purpose was not to determine the right of relator to his seat, then the resolution is meaningless. But this court will not indulge the presumption that the house acted without any purpose or in bad faith, but, on the contrary, will view the resolution in the light of surrounding circumstances and give to it the meaning which harmonizes with the apparent purpose intended.
It is suggested, however, that the resolution does not purport to evidence a final determination of relator’s right, but in this connection the term final is a misnomer. Upon the question of the election and qualification of a member, there cannot be such a thing as a final decision, in the sense of a decision conclusive upon the house, until final adjournment for the term for which the members, in this instance, were elected. The authority to pass upon the membership is a continuing one and runs throughout the term. It is so complete and conclusive that relator may be seated to-day after a hearing, and deprived of his office to-morrow upon the same facts. After a member has received compensation for his services for fifty-nine days of the session, the house, may then declare that he was never legally elected and seat another in his stead with the right to compensation from the opening day. Neither the fact that the state may be called upon to pay double compensation, nor the fact that one of the two contenders has received compensation, reflects in the least upon the ultimate right to the office.
Our conclusion is that in the resolution above, the relator has presented to this court evidence of a determination by the house that he is de jure a member until such time as the house may determine otherwise, and that he is entitled to the compensation which attaches to the office.
It is ordered, adjudged and decreed that a peremptory writ of mandate issue herein directed to the respondent, as auditor of the state of Montana, commanding him to deliver to the relator a warrant upon the state treasurer for the compensation to which relator is entitled by virtue of his membership in the house of representatives of the sixteenth legislative assembly.
Mr. Justice Cooper concurs.
|
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] |
PEE CUEIAM.
Pursuant to stipulation of the parties, the appeal herein is this day dismissed.
|
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] |
PER CURIAM.
Pursuant to stipulation of the parties herein, the appeal in this cause is hereby dismissed.
|
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] |
MR. JUSTICE PIGOTT
delivered the opinion of the court.
By the judgment in this action defendant McIntyre (who will hereinafter be called the defendant) is perpetually enjoined from removing, or attempting to remove, and from digging, excavating, and removing the ground and foundation from beneath, a wooden building known as the McIntyre Opera House. On this appeal by her from that judgment her counsel have argued at length the several specifications of particulars in which, as she asserts, the trial court committed error prejudicially affecting her rights. The plaintiff has not seen fit to state or present his contentions, nor has he appeared, on this appeal.
1. Defendant’s first contention is that the complaint, her general demurrer to which the court below overruled, fails to state facts sufficient to constitute a cause of action, or to invoke the injunctional jurisdiction of equity. Its allegations may be paraphrased and epitomized thus:
The McIntyre Opera House, a wooden (or, according to the complaint, a “wood frame”) building, having a stone foundation imbedded in the earth, at all the times mentioned in the complaint stood, and yet stands, on certain lots situate within the fire limits of Havre. In December, 1915, and while defendant was the owner of the lots as well as of the building, she leased the building, describing and identifying it as being on these lots, to strangers for the term of three and a half years, with the privilege of three years additional, at the monthly rental of $100. In October, 1916, defendant conveyed the building and lots to her codefendant. In March, 1917, plaintiff became the assignee of the lease and has kept its covenants. As such assignee he is in possession of the building, and therein carries on the business of exhibiting moving pictures and presenting theatrical performances. An ordinance of Havre prescribes that — “no wood frame building shall be moved from one place to another within the fire limits, nor from without to within the fire limits, except to a different portion of the same lot upon which it may stand.” Defendant wrongfully and un lawfully threatens to remove the building from its present site, and has made actual preparation for its removal by digging and excavating the ground underneath it, and by removing parts of the stone foundation; over plaintiff’s protest, she has persisted from day to day in committing such wrongful acts. Should the building be moved to a place beyond the fire limits, or should defendant be permitted to move the building, as she now threatens and is preparing to do, or should she be allowed to continue in such digging and excavation of the earth and removal of the foundation, the estate owned and enjoyed by plaintiff in the building and lots will be totally destroyed, to his irreparable injury. The plaintiff has never consented to or authorized the perpetration of any of the wrongs charged, nor to the removal of the building either within or without the fire limits. He prays for an injunction restraining defendant from moving the building off its present site, and from digging, excavating and removing the ground and foundation beneath the building.
(a) Defendant insists that the only cause of action attempted to be stated is based upon the ordinance pleaded; that the ordinance does not forbid the moving of such a building from a place within to a place without the fire limits; that the allegation — assumed by her to be the gravamen of the action— that if the building be moved to a place beyond the fire limits plaintiff’s estate will be destroyed, has no relation to the ordinance ; that plaintiff fails to charge defendant with intention or threat to move the building without the fire limits, but, on the contrary states only that she threatens to remove it from its present site. From these premises she deduces the conclusion that the ordinance is inapplicable, and 'intimates that, even if it be applicable, equity will not restrain its mere violation at the instance of a private litigant, except where the wrongs threatened amount to a nuisance, or he shows that some irreparable injury, special to himself, would ensue.
But the major premise is wrong, as is also the assumption that the threat to move the building beyond the fire limits constitutes the essence of the cause of action. All reference to the ordinance and the threats to move the building to ,a place beyond the fire limits may be eliminated without making the complaint insufficient, as will appear by application to the state of facts remaining of a few fundamental and long-established principles of law.
After elimination of these matters in respect of the ordinance and fire limits, the complaint shows, in substance, that defendant, without plaintiff’s consent or authority and against his protest, threatens to> and, unless restrained, will, move from its present site a wooden building standing, with stone foundation imbedded in the earth, on certain land, which building was leased at a monthly rental by her to plaintiff’s assignors for a term of years still existing, the lease having been made prior to her conveyance of the land and building; that the building, with the land, is occupied by plaintiff under the lease and used by him in conducting his business; that in the execution of her threat she continues from day to day to dig and excavate the earth under the building and remove parts of its foundation.
Defendant misconceives the character and dignity of the property owned by plaintiff as assignee of the lease. She regards it as strictly personal property, and invokes the rules announced by this court in Eisenhauer v. Quinn, 36 Mont. 368, 122 Am. St. Rep. 370, 14 L. R. A. (n. s.) 435, 93 Pac. 38. In that case, however, the house was a chattel personal, and this court held that an injunction should not have been granted against its removal by the sheriff under writ of execution, there being no showing that the sheriff was insolvent or his bond not sufficient, or that the removal of the house could not be compensated in damages. The Eisenhauer Case is not pertinent.
When the owner of land and the building affixed thereto leases the latter for a term of years without expressly including the former, he thereby demises the land unless the contrary intention is manifested. Defendant owned the land and likewise the building which was then and is now affixed thereto. By leasing the building to plaintiff’s assignors for a term of years, she effectually demised the land. This familiar doctrine need not be exemplified by citation of authority. The Revised Codes, sections 4424, 4425 and 4427, enact, among other things, that real, or immovable, property consists of land and that which is affixed to land, by being imbedded in it, as in the case of walls, or permanently resting upon it, as in the ease of a building.
True, the right of plaintiff which he seeks to protect against wrongful invasion and consequent destruction, is a chattel interest. It is a chattel real, as distinguished from a chattel personal. Section 4481 of the Revised Codes, declares estates for years to be estates in real property, and section 4485 defines chattels real to be estates for years; and it may be noted in passing that these sections work no change in the common law; for in Co. Litt., secs. 177, 118b, it is said that chattels real are “reall, because they concerne the reality, as tearmes for yeares of lands or tenements.” Blackstone in the second volume of his Commentaries, defines them to be “such as savor of the realty, such as leases for years of land.” So it was held in Hyatt v. Vincennes National Bank, 113 U. S. 408, 28 L. Ed. 1009, 5 Sup. Ct. Rep. 573, where it was decided that a lease for years is a chattel real which must be sold as an interest in land, not as personal property, which is also provided by Revised Codes, section 6836. In Milliken v. Faulk, 111 Ala. 658, 20 South. 594, the court said: “ ‘A chattel real * * * is an immovable thing, attached to and issuing out of lands,’ and this we understand to be universally correct. A lease is a contract * * * for the possession * * * of lands and tenements. * * * Strictly speaking, it is not a term applicable to chattels, which are not attached to or issue out of realty. A lease is a conveyance or grant.”
The complaint, then, shows that plaintiff is the owner and entitled to the quiet and peaceable possession and enjoyment of an estate for years in the land and the building resting upon it, free from interruption or molestation by defendant; that defendant has wrongfully committed many destructive trespasses upon plaintiff’s estate, and, unless restrained, will continue to do so, even to the extent of moving the building from the land; that the execution of the threat will utterly destroy plaintiff’s estate in the land, and deprive him of the right, which he now has, to occupy the building on its present site. While neither the wrongs done nor those threatened are, or would be, technical waste, they are necessarily destructive of plaintiff’s estate, and irreparable in their character and very nature. To justify [4] injunctive process in such circumstances, there is no need that the wrongs threatened would, if committed, interfere with or destroy plaintiff’s business, nor is it necessary to show that defendant is unable to answer in damages.
For present purposes it is not of moment whether the conduct of defendant be characterized as tortious, or be considered merely as breaches of the contract of lease, for in either event the complaint is sufficient to withstand a general demurrer. Her conduct was tortious, for plaintiff is the owner of the term, and the unlawful acts and threats are those of a stranger to such ownership. Her conduct was also a violation of her covenants contained in the lease.
(b) The complaint also states facts sufficient to warrant an injunction to prevent a multiplicity of actions at law for damages which would be caused by the commission of the continuing and repeated trespasses threatened.
The demurrer was properly overruled.
2. Parts of the material allegations of the complaint were admitted by the answer, and the others were proved at the trial.
During the trial, defendant sought, unsuccessfully, to show that plaintiff had consented to her moving the building; and while the tendency of the evidence was to prove that plaintiff’s assignors had notice after the lease was made of defendant’s purpose to move it, there was no proof that they ever consented. She established the fact that, when she sold the land to her co-defendant, she excepted the building and agreed to remove it by March 15, 1917; but this could not affect plaintiff’s estate, which had been theretofore created in his assignors. She sought, also, to prove that plaintiff had notice of the transaction with her codefendant before the lease was assigned to him, bnt in this effort she was likewise unsuccessful; but, if the fact be as she asserts, her plight would not be less, nor plaintiff’s rights diminished, for the lease under which plaintiff holds antedates the contract of sale.
Suggestion is made that the evidence shows that the [7] threatened destructive trespasses, if perpetrated, would not work as great injury to plaintiff as the perpetual injunction will damage defendant; but the facts in the present case clearly exclude application of the doctrine of relative or comparative injury and inconvenience. The practice of weighing the relative or comparative injuries and resulting damage which will probably be suffered by the parties, respectively, should be resorted to only when the party whose substantial rights are threatened with invasion or destruction can be thoroughly protected.
The record fails to show error prejudicial to defendant, and the judgment is affirmed. Let remittitur issue forthwith.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Motion for rehearing denied December 5, 1918.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On July 22, 1908, the city council of Butte adopted Council Resolution 762, for the creation of Special Improvement Dis trict No. 70, and for the grading of the streets and the construction of a sanitary sewer within the boundaries of the district. ‘Section 4 designated July 29 as the time for hearing objections “to the final adoption of this resolution,” and section 5 provided for the publication of notice. On July 29 the council •finally adopted the resolution, no objection thereto having been •made. On August 6, Ordinance 849A was passed and approved, by the terms of which it was ordered that Antimony Street, within District 70, be graded according to the established grade of the city, and that a sanitary sewer of eight-inch concrete pipe be laid in said street within the district. The ordinance provided for payment on the installment plan and fon special assessments to meet the expense. Thereafter the improvements were made, and special improvement warrants delivered in payment. On February 3, 1909, Council Resolution 800 was finally adopted, after notice, and this resolution levied a special tax against the property of the district affected, to meet the installment due in 1909. Several of the property owners refused to pay the special assessment and united in instituting this suit to •restrain the city from selling their property to satisfy the delinquent tax. The city prevailed, and plaintiffs appealed from the judgment dismissing their complaint.
The proceedings of the city were governed by sections 3367, •3369-3389, and 3396-3412, Revised Codes. These statutes have long since been repealed, and no useful purpose can be served by an extended discussion of their provisions.
1. Council Resolution 762 shows upon its face that it was intended to be a resolution of intention to create a special improvement district, and not a resolution which in itself ■created the district upon its adoption July 22, 1908. This brings the cáse clearly within the rule adverted to in Shapard v. City of Missoula, 49 Mont. 269, 141 Pac. 544, and distinguishes it from Cooper v. City of Bozemam, 54 Mont. 277, 169 Pac. 801. The publication of the resolution, which contained the proper reference to the time and place for hearing objections to the final adoption of it, was a substantial compliance with the statute. (See. 3397.)
2. Resolution 782 designated the character of the improvements contemplated, with sufficient particularity. (Mansur v. City of Polson, 45 Mont. 585, 125 Pac. 1002.)
3. There is not anything inconsistent between the provisions of sections 3385 and 3396. The former section refers to improvements to be paid for by a single payment — in other 'words, the work to be paid for in cash immediately upon its completion; whereas, section 3396 refers to public improvements to be paid for upon the installment plan, covering a period of years. Since the council adopted the latter plan, they were authorized to charge the entire cost to the property.
4. The initiative and referendum apply only to matters of general legislation, in which all the qualified electors of the city are interested, and not to matters of purely local concern, such as the creation of a special improvement district, in which only the inhabitants or property owners are interested. (Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 Pac. 39.)
5. It is argued in the brief of counsel for appellants that the city council did not by a vote of a majority of its members decide that the construction of the sewer was necessary for sanitary purposes, and the doctrine of Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454, is invoked in behalf of the contention that the city did not acquire jurisdiction to proceed with the creation of the district. In the Stadler Case it was alleged in the complaint that “the city council did not, by a vote of the majority of its members, decide that the construction of said sewer was necessary for sanitary purposes,” and this allegation was admitted to be true. In the present case no such allegation is made. The statute (section 3373) is silent as to the manner in which such decision should be made manifest, and upon the pleadings as they appear in this record the question argued 'does not arise.
6. The statutes involved in this action were considered at length in McMillan v. City of Butte, 30 Mont. 220, 76 Pac. 203, and it was there held that it is a question for the legislature to determine in the first instance what property will be specially benefited by an improvement; and in Beck v. Holland, 29 Mont. 234, 74 Pac. 410, it was determined that the legislative authority can be, and in these statutes was, delegated to the city council.
The council, then, having observed the method of procedure ordained by the statute, acquired jurisdiction to order the improvement and to levy the assessment against plaintiffs’ property, and the assessment thus levied became a lien upon the property from the date when such assessment became due (section 3407), and was not affected by the fact that thereafter each of these plaintiffs recovered a judgment against the city for damages on account of the street grading done pursuant to Ordinance 849A.
The" judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
PER CURIAM.
Upon motion of the appellant herein, the appeal in the above-entitled cause is this day dismissed.
|
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Opinion —
-PER CURIAM.
The one question presented is whether the petition for the removal of the eounty seat of Sanders county is sufficient to authorize the commissioners to submit to the electors the question o£ removal. The cause was tried to the lower court upon an agreed statement of facts, the material portion of which is that the commissioners disregarded the names, on the poll-boobs and assessment-roll, of all persons who, since those records were made up, had ceased to be legal voters in the one instance, or ad valorem taxpayers in the other, and, with these eliminations made, held the petition to be sufficient. It. is agreed that, if the commissioners were authorized to make such eliminations, their conclusion is correct, but, if they were not so authorized, then the petition is insufficient. The trial resulted in a judgment for plaintiff, and defendants appealed.
Section 2851, Revised Codes, provides for a petition as the means by which proceedings for the removal of a county seat are initiated. Section 2852 provides: “If the petition is signed by a majority of the taxpayers of such county, the board must at the next general election submit the question of removal to the electors of the county; Provided that the term ‘taxpayers’ used in this section shall be deemed to mean ‘ad valorem taxpayers/ and that for the purpose of testing the sufficiency of any petition which may be presented to the county commissioners, as provided in this section, the county commissioners shall compare such petition with, the poll-books in the county clerk’s office constituting the returns of the last election held in their county, for the purpose of ascertaining whether such petition bears the names of a majority of the voters listed therein; and they shall make a similar comparison of the names signed to the petition with those appearing upon the listed assessment-roll of the county for the purpose of ascertaining whether the petition bears the names of a majority of the ad valorem taxpayers as listed in said assessment-roll; and if such petition then shows that it has not been signed by a majority of the legal voters of the county who are ad valorem taxpayers thereof, it shall be deemed insufficient, and the question of removal of the county seat shall not be submitted/*
If the terms “legal voters of the county who are ad valorem taxpayers thereof,” as used in the concluding sentence above are to be given their literal meaning, then the commissioners would be required to eliminate from their consideration of the poll-books the names of all- persons who had died, removed, or for any other reason had lost the right to vote, and they would be required to add to the number remaining all new voters who had acquired the right; for it has been determined repeatedly that registration is not a qualification to vote, but a mere safeguard of the purity of the ballot. (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297; State ex rel. Fadness v. Eie, 53 Mont. 138, 162 Pac. 164.) The same rule would apply in the use of the assessment-roll; but that it was not the purpose to use the terms “voters” and “taxpayers” in this broad sense is apparent, and is conceded by both parties, we understand.
"What function do the poll-books and assessment-roll perform in the determination of the sufficiency of a petition for county seat removal ? The question is answered by section 2852 itself. For the purpose of testing the sufficiency of the petition, the commissioners shall compare the petition with the poll-books constituting the returns of the last election held in the county, for the purpose of determining whether the petition bears the names of a majority of the voters listed therein, and they shall likewise compare the petition with the assessment-roll, to ascertain whether the petition bears the names of a majority of the ad valorem taxpayers listed on that roll. The language is significant. The sufficiency of the petition is to be tested by comparing it with the poll-books and assessment-roll. “Testing” means the act of proving. Test: To put to proof; to prove the truth, genuineness, or quality of, by experiment or by some principle or standard. (Webster’s International Dictionary.) “Test” as a noun means: An examination made for the purpose of proving or disproving some matter in doubt; a criterion or standard of judgment. As a verb it means: To subject •to conditions that disclose the true character of a thing. ■(Standard Dictionary.)j
i The legislature, therefore, made of the poll-books and assessment-roll a standard or measure by which the sufficiency of the petition is to be determined. The petition is merely a preliminary means by which the election machinery is set in motion. The determination of its sufficiency or insufficiency adjudicates no private rights; establishes no precedent; settles no principles. (State ex rel. Lang v. Furnish, above.)
> In the absence of constitutional restrictions the legislature was free to prescribe any test it might choose (State ex rel. Eagye v. Bowden, 51 Mont. 357, 152 Pac. 761), and it chose to select the poll-books as the standard by which the board should determine the number of voters, and the assessment-roll as the criterion by which the number of ad valorem taxpayers should be ascertained. In other words, for the purpose of this preliminary step only, the statute designates as a voter one whose name is on the poll-books, and an ad valorem taxpayer one whose name is on the assessment-roll, and who is assessed for property.
As if to leave no doubt that the poll-books and assessment-roll constitute the sole criterion for testing the sufficiency of the petition, the statute, after directing that the petition shall be compared with each, provides that, if then [after the comparison is made] the petition shows that it has not been signed by a majority of the legal voters who are ad valorem taxpayers, it shall be insufficient, and the question of removal shall not be submitted. The evident purpose of section 2852 is to provide a simple and certain method by which the board shall determine the sufficiency of the petition — a method freed from all the uncertainties of an investigation founded upon human testimony. A reference to these public records, made and kept under the sanction of official oath, was deemed sufficient for the purposes of this preliminary proceeding.
The board of county commissioners is a specially constituted tribunal, possessing only such authority as is conferred upon it expressly, and such additional authority as is necessarily implied from that which is granted expressly. (State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092; State ex rel. Gillett v. Cronin, 41 Mont. 293, 109 Pac. 144.) The authority to go beyond the poll-books and assessment-roll to ascertain whether the petition is signed by a sufficient number of persons is not granted in express terms; neither can it be implied from the power which is granted. On the contrary, the language of section 2852 indicates a purpose to confine the board to the particular sources of information mentioned, as they appear in the public records of the county.
No question is raised as to the right of the commissioners to determine the genuineness of the signatures to the petition, or the identity of the persons whose names appear thereon, with the persons whose names appear on the poll-books or on the assessment-roll.
Section 2041, Revised Codes (the local option statute), provides: “The county commissioners must determine on the sufficiency of the petition presented, by the last assessment-roll of the county.” This was held to constitute the assessment-roll the exclusive standard by which to determine whether the petition was signed by the requisite number of taxpayers. Concerning it this court said: “The board is not authorized to consult any other sources of information or to receive evidence which does not appear upon the roll.” (State ex rel. Eagye v. Bowden, above, affirmed in State ex rel. Fadness v. Eie, above.)
The language employed by this court in State ex rel. Stringfellow v. Board, 42 Mont. 62, 78, 111 Pac. 144, 149, is to be understood in view of the record made in that case. It was there said: “The essential requisite of a petition for the removal of a county seat is that it shall be signed by a majority of the legal voters of the county who' are ad valorem taxpayers thereof.” With the limitation placed upon the definition of “voters” and “taxpayers” above, we reaffirm this statement as a correct exposition of the law.
The New Counties Act (Laws 1913, Chap. 133) considered in State ex rel. Lang v. Furnish, above, differs so materially from section 2852 that the construction placed upon the former cannot apply to the latter.
Onr conclusion is that the commissioners were not authorized to make the eliminations which were made, and under the agreed statement of facts it follows that the petition in question is insufficient, and that the judgment of the district court should be, and it is, affirmed.
Affirmed.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
This appeál assails the validity of Chapter 95, Session Laws of 1915 — particularly sections 1, 4, 5, 13, 14, 15, 16, 17 and 18 —known as the “Teachers’ Pension Law,” held by the judgment below to be valid and enforceable. In substance, these provisions are: Section 1, creating the public school teachers’ retirement salary fund and the public school teachers’ permanent fund, the latter made.up of “contributions made by teachers as hereinafter provided,” income and interest, donations, legacies, gifts or bequests and “appropriations made by the state legislature from time to time to carry into effect the purposes of this Act. ’ ’ Section 2. The retirement salary fund shall be made up of moneys transferred from the permanent fund. - Section 4. “There shall be deducted from the salary of every teacher,” subject to the provisions of the Act, one dollar from each month’s compensation, to be placed in said permanent fund. Section 5. “No person shall be eligible to receive the benefits of this Act who shall not have paid * * * an amount equal to twelve dollars for each year of service, up to and including twenty-five years. ’ ’ Section 13. Every teacher of twenty-five years’ service, the last ten of which shall be in this state, is entitled to retirement and to receive during life an annual retirement salary of $600, in quarterly installments. Section 14. Any teacher who shall have served as such or as a school officer for fifteen years, and who by infirmity shall become incapacitated, may be retired or may by proper authority be compelled to retire and shall receive an annual retirement salary in proportion to length of service. Section 15. The authorities shall determine what constitutes a school year. Section 16. The Act is binding on such teachers employed in the public schools of this state at the time of the approval of the Act, as shall on or before January 1, 1916, signify their agreement accordingly, and (section 17) upon all teachers elected or appointed after the approval of the Act. Section 18. If any retired teacher shall be re-employed in the schools, the retirement salary shall be suspended during such period of re-employment, and any teacher retired for disability or on less than twenty-five years of service who returns to service and later qualifies for retirement, the retirement salary on such second retirement shall be reduced so as to cover the amounts paid on the first retirement.
The objections urged to this legislation, so far as they are cognizable by this court, are constitutional in character. They are not very clearly stated, but from the argument of the appellants’ brief we infer the contentions to be that it violates the state Constitution (sees. 3 and 27, Art. Ill; see. 26, Art. Y, and sec. 11, Art. XII) as well as the Fifth and Fourteenth Amendments to the national Constitution. In substance, the provisions thus invoked are: The declaration that all persons possess the inalienable right of acquiring, possessing and protecting property; the guaranties that no person shall be deprived of life, liberty or property without due process of daw, or be denied the equal protection of the laws; the prohibition against the passage of local or special laws for the management of the common schools; the requirement that taxes shall be uniform and laid by general laws for public purposes. The most cursory examination of the statute thus assailed will disclose that the constitutional propositions insisted upon are inapplicable.
There is no question of taxation involved. The legal relation of the state through its several boards of school trustees with the teachers employed by it is one of contract. It has the right to say upon what terms it will hire or authorize the hiring of persons to teach in its schools. ■ It may, if it sees fit to do so, discriminate in the terms of its contracts upon any basis it chooses to adopt or upon no basis at all. Here it has said to all teachers employed after the approval of the Act: “Your contract shall have read into it the provisions of this Act; the salary you receive shall in all eases be one dollar per month less than the amount expressed in your contract, that dollar to go into the teachers’ pension fund for your benefit when you become entitled to it; you may engage or not upon these terms, just as you like. ’ ’ When the teacher engages, it is an acceptance of the terms, and all discussion based upon the theory of taxation, having in mind that taxes are in invitum, is irrelevant. (Allen v. Board of Education, 81 N. J. L. 135, 79 Atl. 101.)
Neither, assuming the appellants can raise the question, is there any taking of property from the teachers, with or without due process of law, or any invasion of their right to acquire, possess, and protect property. The effect of the Act being as above stated, it results that the salary to be paid is a net amount after the “contributions” or “deductions” prescribed. It is not a gross amount, and thus in fact there is no taking. As declared by the supreme court of Wisconsin on a slightly different but essentially similar occasion: “Though called part of the officer’s compensation, he never received it or controlled it; nor could he prevent its appropriation to the fund in question. He had no such power * * * over it as always accompanies ownership of property. Being a fund raised in that way, it was entirely at the disposal of the government, until, by the happening of one of the events stated, * * * the right to the specific sum promised became vested in the officer or his representative.” (State v. Police Pension Fund, 121 Wis. 44, 98 N. W. 954.)
The Act is said to involve a denial of the equal protection of the laws, “in that payment is made by consent with some teachers and is compulsory with others.” This is not correct. The deductions are by consent or contract in all cases, the mode of assent only being different as between teachers having contracts when the Act went into effect, and those who contract after the approval of the Act and in contemplation of its terms. This distinction is as it should be. It certainly affords no ground of complaint by these appellants.
The prohibition against local or special laws cannot be [2] invoked. A “special” or “private” Act is a statute operating only on particular persons and private concerns; a “local Act” is an Act applicable only to a particular part of the legislative jurisdiction. The law in question here operates throughout the state and uniformly upon all who are subject to its provisions. It is thus not local or special, but a general law. (36 Cyc. 986; Hersey v. Neilson, 47 Mont. 132, Ann. Cas. 1914C, 963, 131 Pac. 30; State ex rel. Bray v. Long, 21 Mont. 26, 52 Pac. 645.)
Counsel for appellants cites several authorities to support his views, but none are in point except Hibbard v. State, 65 Ohio St. 574, 58 L. R. A. 654, 64 N. E. 109, and with that decision we cannot agree. Some criticism is also voiced touching the details of the scheme created by the Act in question and its alleged economic defects, but such considerations are for the legislature.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
This is an action on a promissory note for $1,000 dated December 11, 1914, and due six months after date. The complaint alleges execution and delivery to Baker on December 11, 1914; its transfer to plaintiff on December 12, 1914, for a valuable consideration, and nonpayment. The answer denies its transfer and delivery to plaintiff; and alleges affirmatively that if the plaintiff purchased the note, it did so long after maturity and notice of a valid defense thereto; that some time prior to December 11, 1914, one Baker, at Roundup in Mussel-shell county, endeavoring to sell stock in the Bankers’ Hail Insurance Company, a corporation about to be organized, solicited defendant to subscribe for stock in said company; and in order to obtain his stock subscription, made to him certain false and fraudulent representations, knowing them to be false, all of which defendant believed to be true, and, so believing, subscribed for $2,000 of the capital stock of said proposed corporation, and made, executed, delivered and indorsed the note mentioned, in payment of the first installment of the subscription. More particularly, the answer alleges that “said Baker further represented that the Citizens’ State Bank of Roundup, Montana, the plaintiff herein, had purchased $2,500 of the stock of said proposed corporation, and -had offered to exchange $4,000 of the stock of the Montana Life Insurance Company for an equal amount of stock in the proposed corporation.” Also that 140 other bankers in the state of Montana had subscribed for stock in said proposed company, and that each of these bankers would become an active agent for the proposed corporation in soliciting hail insurance; that agents’ commissions would be twenty per cent of the premium, and that by reason of the position of the banks in the state, and the advantage that would accrue to the proposed company thereby, the profits would be large, and that the only payment that it would be necessary for him to make, would be the first, as all other payments would be taken care of out of the profits of the corporation. It also sets forth that one John Chandler and one C. O. Tupper, acquaintances and friends of defendant, had each subscribed for $2,000 of the shares of such stock; that James Elliott, Fred Handle and Herbert Thien had also subscribed for large amounts of capital stock of such proposed company; that he (Baker) had subscribed for $9,000 of it, and was putting all the money he could get into the stock of the company, whereas, in truth and in fact, he was merely selling stock at twenty-five per cent commission, and not putting any money into it at all; and that such representations (except those referring to Chandler and Tupper) were false. It also alleges that the subscriptions claimed to have been secured from other persons were grossly exaggerated, and known to be so by Baker; that Baker was in fact the representative of the organization committee of said corporation and its agent in the procurement of subscriptions; that defendant relied upon such representations, and knew nothing to the contrary. On information and belief defendant alleges that prior to the organization of the company, the sale of the note and the time plaintiff became the possessor of it, the defendant canceled his stock subscription. He also alleges that no tender of any capital stock, or anything of value for the note, was ever made by the insurance company. In his prayer, the defendant demands the cancellation and surrender of the note and relief from liability thereon.
The reply to the affirmative defense consists of denials, and direct allegations that plaintiff became the owner of the note in due course before maturity, in good faith, for a valuable consideration, and without notice of the defenses referred to.
At the close of all the testimony, on motion of plaintiff, the court directed a verdict against the defendant, and judgment was entered accordingly. These appeals are from the order denying defendant’s motion for a new trial and from the judgment. The making of both orders is specified as error in appellant’s brief.
The foregoing, being a resume of the pleadings, and taking, as they do, a wider range than the testimony adduced at the trial, will suffice to cover and dispose of all the questions arising on these appeals.
At the trial the plaintiff produced and identified the note indorsed by the agent of the holder thereof, and, having shown its purchase for value the day following its execution, the burden of proving that Baker obtained the note through fraud rested upon the defendant Snelling. (Harrington v. Butte & B. M. Co., 27 Mont. 1, 69 Pac. 102.) Statements, of the character of those made by the officers of the bank months after the purchase of the note for value, and having no bearing upon the original negotiations between Baker and the defendant, in no wise affected the transfer to the plaintiff, This being so, the liability of the defendant was fixed, until he could, by proper and sufficient pleadings and competent and preponderating proof, show that the note was obtained by means of fraud and deceit practiced by Baker in the procuration of the subscription for which the note was given, and that the plaintiff had knowledge thereof. (Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301; Bullard v. Smith, 28 Mont. 387, 72 Pac. 761; Ott v. Pace, 43 Mont., at page 92, 115 Pac. 37.)
We come, then, to the question of the sufficiency of the affirmative defense pleaded by the defendant in his answer. That it falls far short of the requirements of a pleading designed to upset a transaction entered into in apparent good faith, will be seen by a reference to cases dealing with defenses of this character. (Butte Hardware Co. v. Knox, supra; Bullard v. Smith, supra; Ott v. Pace, supra.)
A reference to the evidence in the record will disclose that the alleged misrepresentations of Baker consisted of existing facts, and that the means of testing their accuracy were available to the defendant if he had chosen to investigate them for himself. With his contract, however, he seems to have been quite contented, for he testified: “I made no effort to investigate any of the statements Mr. Baker made to me.” The other statements alleged to have been made, consisted merely of prophecies. Could the defendant, then, hope to successfully defend against the note if he had been able to prove to the satisfaction of the jury all that he alleges in his affirmative defense? We think not. Unfortunately for him, neither fantastic representations of things not actually existent, nor promises for the future amount in law to deceit or fraud. (Pollard v. McKenney, 69 Neb. 742, 96 N. W. 679, 101 N. W. 9; Beard v. Bliley, 3 Colo. App. 479, 34 Pac. 271; 20 Cyc. 20.) Statements no less alluring are undoubtedly made every day concerning the prospective value of mining stock, and in the promotion of enterprises of like nature; and, seductive as they may appear, without the interposition of misrepresentation, with a fraudulent design, their authors are not chargeable with actionable deceit. “To be such, it must relate to a present or past state of facts.” (Milwaukee Brick & Cement Co. v. Schoknecht, 108 Wis. 457, 84 N. W. 838.) Not until the institution of suit on the note in the hands of a third person, did the defendant seek relief from what he now accounts a bad bargain. The courts cannot be called into action in aid of a party whose cupidity has outrun his business judgment.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mk Justice Hollowayi concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
To avoid circumlocution the defendant will be referred to as Mrs. Bown. In August, 1915, plaintiff and defendant, with the ostensible purpose, at least, of becoming husband and wife, procured to be performed for them a marriage ceremony. In December following, Mrs. Bown commenced an action against Bown for separate maintenance, and secured a judgment by the terms of which Bown was required to pay certain fees and costs and the sum of $62.50 per month for the support and [1] maintenance of Mrs. Bown. In February, 1917, Bown commenced an action against Mrs. Bown to have their purported marriage annulled on the ground, as he alleged, that at the time the ceremony was performed Mrs. Bown was the lawful wife of James T. Somers, which fact was unknown to Bown until after the rendition of the judgment in the separate maintenance suit. In that action Bown applied to the court for an injunction restraining Mrs. Bown from further enforcing the judgment in the separate maintenance suit until a final determination could be had in the suit for annulment. The application for injunction was denied, and no appeal was taken from the order. Mrs. Bown appeared in the annulment suit by demurrer, but before the issues were settled Bown commenced this action to secure an injunction having the same purpose as the one sought in the annulment suit. After a hearing, the injunction was denied, and Bown has prosecuted his appeal from the order.
The application for injunction in the annulment suit was based upon the complaint in that action which is made a part of the record in this case, and the application in this instance was made upon the complaint herein. There is no substantial difference in the facts disclosed by the two pleadings. The alleged fraud committed by Mrs. Bown at the time the marriage ceremony was performed, and the fact that the fraud was not discovered until after the rendition of the judgment in the separate maintenance suit constitute the foundation for the application in each instance.
A party may not make successive applications for injunction upon the same state of facts. There must be an end to litigation some time. When the injunction was denied in the annulment suit, Bown had his remedy by appeal (sec. 7098, Rev. Codes), and, having failed to avail himself of that remedy, he became bound by the order. (Wetzstein v. Boston & Mont. Co., 26 Mont. 193, 66 Pac. 943.) He may not again apply for the same relief upon the same facts, either in the same action or in another one instituted for that purpose. (Maloney v. King, 30 Mont. 414, 76 Pac. 939.)
It is unnecessary to consider other questions presented upon this appeal. The order refusing the injunction is affirmed.
The injunction pending appeal heretofore issued by this court is dissolved.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Cooper concur.
|
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] |
PER CURIAM.
The application of relators for writ of mandate herein was this day, after due consideration, denied.
|
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] |
PER CURIAM'.
Pursuant to stipulation of the parties herein, it is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed, each party paying his own costs.
|
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] |
MR. JUSTICE' HOLLOWAY
delivered the opinion of the court.
At a special election held in 1916, a majority of the electors voting authorized the county commissioners to issue bonds in the sum of $75,000 to build and equip an addition to the county high school building. Some time after the election this suit by a taxpayer was instituted to enjoin the issue and sale of the bonds, and this appeal is from a judgment dismissing the complaint.
The cause was tried upon what amounts to an agreed statement of facts. Though this bond election was held at the same time as the general election, November 7, 1916, separate ballots were provided and used in voting upon this issue. The county clerk did not publish a notice of this special election in any newspaper as required by section 531, Revised Codes, but did cause a-notice thereof to be posted in each of three of the most public places in each precinct — one at the voting place— and by reason thereof and the public discussion of the matter the electors throughout the county had actual knowledge that the question would be voted on, long prior to the election. Seven thousand three hundred and sixty was the highest number of votes cast for any candidate or upon any question at the election. Seven thousand one hundred eighty-nine electors voted upon this bond issue, and the majority in favor of the bonds was 717.
For the purposes of this appeal we assume that the repeal of section 1318, Political Code of 1895, did not affect the duties imposed upon the county clerk by reference to that section in section 531 above. (Ventura County v. Clay, 112 Cal. 65, 44 Pac. 488.) Did the failure of the clerk to publish the notice avoid the election notwithstanding the electors had actual notice and participated generally in the election? The inquiry is answered in the negative and the question set at rest in this state by the decision in State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932.
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
This action was brought by plaintiff, as trustee in bankruptcy of George Wilson, to recover from the defendant certain sums of money paid to it by debtors of Wilson within four months prior to the filing of the petition in bankruptcy, whereby, it is alleged, the defendant obtained unlawful preferences over other creditors. The petition was filed by several creditors of Wilson on November 11, 1914, and he was adjudged a bankrupt on January 11, 1915.
During the years 1913 and 1914 Wilson was conducting the business of a plumber at Great Falls. He secured- subcontracts from contractors and builders to install the necessary plumbing in buildings in course of construction by them in Great Falls and vicinity. These were A. G. Anderson, Pappin & Son and A. S. Hulden. He obtained supplies of material from the defendant on account. On November 11, 1914, when the petition in bankruptcy was filed he had become largely indebted to the defendant. In_ order that the contractors might deliver their buildings upon completion free from claims of lien for the materials furnished, they paid-to defendant the amounts due from Wilson to it for materials so furnished for each building. On August 8, 1914, Anderson paid to it on this account $133.25, and on September 10, $52.44. On August 11, Pappin & Son paid to it $100; and on September 16, TIulden paid to it $86.15, and on October 26, $113.85, making in all $200.
Plaintiff in his complaint sought recovery of other sums collected by or paid to defendant on Wilson’s account, but during the trial these were eliminated from the case. The jury found for the plaintiff for the several sums above referred to, and judgment was entered accordingly. Defendant has appealed from the judgment and an order denying its motion for a new trial.
The assignment of error upon which defendant mainly relies is that the evidence did not justify the verdict in that it did not show that Wilson had made a transfer; nor that the defendant had reasonable cause to believe that any payment made to it would effect a preference; nor that at the time any payment was made the bankrupt was insolvent.
1. The provisions of the Bankruptcy Law, so far as they are pertinent here, are the following:
“Sec. 60 (a). A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition or after the filing of the petition, and before the adjudication, * * * 'made a transfer of any of his property, and the effect of the enforcement of * * * such * * * transfer will be to enable any of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class,” etc.
“Sec. 60 (b). If a bankrupt shall have * * * made a transfer of any of his property, and if, at the time of the transfer, * * * and being within four months before the filing of the petition in bankruptcy or after the filing thereof and before the adjudication, the bankrupt be insolvent and * * * the transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such * * * transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person.” (32 U. S. Stats, at Large, 799, 800.)
The first of these sections defines a preference by a bankrupt, to be a transfer of any of the property, the effect of the enforcement of which will enable him to whom the transfer is made to obtain a greater per cent of his debt than other creditors. The second declares that the consequence of such a transfer shall be that it may be avoided by the trustee and the property, or its value, recovered by him for the benefit of the bankrupt’s estate, provided the preference was given within the prescribed limit prior to the filing of the petition in bankruptcy, or the adjudication, and the creditor to whom the transfer was made had at the time reason to believe a preference was intended. (Pirie v. Chicago Title & Trust Co., 182 U. S. 438, 45 L. Ed. 1171, 21 Sup. Ct. Rep. 906; Benedict v. Deshel, 177 N. Y. 1, 68 N. E. 999; Swarts v. Fourth Nat. Bank, 117 Fed. 1, 54 C. C. A. 387; In re Leech, 171 Fed. 622, 96 C. C. A. 424; Remington on Bankruptcy, sec. 1277.)
Though a transfer is made which amounts to a preference, yet it is not unlawful within the meaning of section 60 (b), unless the creditor receiving it had reasonable cause to believe that the debtor intended thereby to give him a preference, — that is, to pay him a larger percentage of his claim than others would receive. As pointed out by the court in Pirie v. 'Chicago Title & Trust Co., supra, if reasonable cause for this belief does not exist, the preference cannot be recovered from the creditor by the trustee. Under section 57 (g) of the Act, the creditor may keep it, but if he elects to do so, he is debarred from having any balance of his debt allowed as a participating claim in the estate of the bankrupt. (Pirie v. Chicago Title & Trust Co., supra.)
Counsel, conceding that a payment of money by a bankrupt to one of his creditors may be a transfer of property whereby an unlawful preference is given insists that the payments in question were not made by Wilson himself, nor by his assent or acquiescence, and hence did not come within the ban of the statute. In support of, this contention they quote from the text of 1 Remington on Bankruptcy (2d ed.), as follows: “Although intent to prefer is not requisite to constitute a transfer a preference, yet there must be at least some voluntary action on the debtor’s part or some assent or acquiescence, to constitute the transaction a ‘transfer.’ Seizure or appropriation of property by the creditor, or his receipt of it otherwise than by the voluntary act or assent of the debtor, will deprive the transaction of its character as a preference.” (Sec. 1329.)
The evidence disclosing the circumstances under which the various payments were made may be epitomized as follows:
Anderson was engaged in the erection of two buildings in Great Falls and a third in the village of Belt. Wilson contracted with him to do the plumbing, the price of all of which aggregated $675. The contract provided that before he should be obliged to make payment to Wilson, the latter was to present receipts showing that he had paid for all' materials which he had obtained from defendant or any other dealer. Anderson paid Wilson in installments as the work progressed, one installment being in cash, the others in checks made payable to defendant. Being bound by his contracts with the owners to deliver the buildings upon completion free from claims of lien for materials, after the first payment, when Wilson demanded money, Anderson insisted on having receipts from the defendant. Wilson not being able to obtain them, Anderson, by his consent, made out checks payable to defendant and delivered them directly to the defendant. The payment made on August 8 was by Wilson’s express consent; that made on September 10 was without Wilson’s consent, because he at that time had absconded and Anderson made it upon the presumption that he had a right to make it under the permission given him at the time of the earlier payments.
Pappin & Son were engaged in constructing a building at Great Falls. Wilson did the plumbing. When the building was finished and ready for delivery, a balance of $100 was dne Wilson. He demanded payment but it was refused until he could furnish a receipt from the defendant, showing that all the materials had been paid for. Finally, after some delay, Wilson agreed that the payment might be made by the firm directly to the defendant, and this was done. Wilson was not bound by his contract with Pappin & Son to furnish receipts showing a clearance of the building from a claim of lien.-
Hulden, being engaged in the construction of several buildings in Great Falls, contracted with Wilson to do the plumbing. Wilson had been paid everything due him except $200 for work done on one building which had just been completed. In the meantime Wilson had absconded. Thereafter, on the dates above noted, this amount was paid to the defendant by Hulden. When the last payment was made on October 26, Peters & Smith, attorneys at Great Falls, were threatening to file liens on behalf of the defendant upon the different buildings for the cost of the materials furnished to Wilson. The payment was made to prevent this. Authority had been given Hulden by Wilson, before he absconded, to make these payments, Wilson being unable to furnish receipts from the defendant.
No evidence was introduced which tended directly to show when Wilson became insolvent or when knowledge of his condition was first brought home to the defendant. That he was insolvent at the time the petition in bankruptcy was filed, was conceded by counsel for both parties. Counsel for the defendant also conceded that defendant was informed of Wilson’s insolvency as early as September 3.
It is clear that none of the several payments were made directly by Wilson. It is equally clear that the Anderson payment of $133.25 and the Pappin & Son payment of $100 were made by his express authority, given when they were made, and that the others were under authority assumed to have been given by Wilson before he absconded. This brings all of them within the rule laid down in the text of Mr. Rem ington, supra, and constituted them preferences. “To constitute a preference it is not necessary that the transfer be made directly to the creditor. It may be made by another for his benefit. If the bankrupt has made a transfer of his property the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it.” (National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 56 L. Ed. 1042, 32 Sup. Ct. Rep. 633.) Whether, therefore, the several payments amounted to unlawful preferences depends upon the answer to the further inquiry whether the defendant had reason to believe that preferences were intended.
As to the payments of August 8 and 11 by Anderson and Pappin & Son we do not think the evidence sufficient to bring them within the ban of section 60 (b), supra. There are some circumstances disclosed by the evidence which tend to show that Wilson had become insolvent as early as July 1, 1914; but none of them tend to show that the defendant had any knowledge of his condition prior to September 3, or was aware that he had other creditors. They go no further than to show that Mr. O’Brien, the defendant’s manager, who had exclusive control of its business at Great Falls, and Mr. Sausen, its cashier, might have learned of it earlier, but there was no substantial evidence tending to show that they did. It appeared from their testimony that while Mr. O’Brien knew that Wilson had a rating by Dun’s Commercial Agency of from $500 to $1,000 only, he had undertaken on behalf of defendant to “carry” him in order to give him a start in business, with the expectation that he would finally “make good.” Both these witnesses testified that in August they had required him to make a statement of his assets and liabilities, and that his statement then showed that the accounts due and becoming due for work done by him were in excess of his indebtedness due to defendant, and that he was not indebted to anyone else in more than trifling sums. Both explicitly denied that they had knowledge or rea son to think that his financial condition was other than he reported it at that time to be. To render a preference unlawful and therefore voidable, it must be shown that the creditor “had reasonable cause to believe that the enforcement of such * * * transfer would effect a preference.” The evidence relating to these two payments was wholly insufficient to warrant a recovery of them by the trustee.
As to the other payments the condition was different. At the time defendant received them, it had full knowledge that Wilson was an absconding insolvent. This knowledge necessarily carried with it the further knowledge that he could not pay his creditors the amounts' due them and that anyone of them, including itself, receiving a payment would necessarily receive a preference over all the other creditors. There was therefore evidence which justified the jury in finding that the defendant was receiving preferences by means of them which the statute declares unlawful.
Counsel insist, however, that since the contractors were bound by their contracts with the respective owners to deliver the buildings clear of all claims of lien, they bore toward the owners the relation of sureties or indorsers for Wilson; hence payments by them to defendant in the amounts for which the buildings might be encumbered by way of liens did not amount to preferences. The argument is that the payors were merely discharging their own liabilities to the defendant. In support of this contention they cite, among other cases, National Bank of Newport v. National Herkimer County Bank, supra, and In re Hines, 144 Fed. 548. These eases are not in point. The contractors were not bound to the defendant by any engagement as sureties or otherwise to discharge Wilson’s indebtedness to it. Nor were they under any obligation to Wilson other than to’discharge the indebtedness due from them to him. Anderson had the right under his contract with Wilson to withhold payment until Wilson gave clearance receipts against liens; but he was at liberty to waive the presentation of the receipts and pay directly to defendant the amount due him, by Wilson’s permission. In doing this, Anderson was merely paying indebtedness which he thereby acknowledged was due to Wilson, and was not discharging any obligation due to the defendant from himself. If this were not the result, he did not' discharge Wilson’s debt at all but made a voluntary payment and is still answerable to the trustee in amounts equal to those so paid.
Neither Pappin & Son nor Hulden sustained any contract relations with the defendant or Wilson, authorizing them to pay Wilson’s debts. They merely paid the debts of Wilson by his consent with money due him. True, it may be said that all three contractors paid under a sort of coercion in order to clear the buildings of claims of lien; but in no event could they have discharged Wilson’s debts without his consent. They were not induced to make the payments by duress or menace, within the meaning of the Code provisions on the subject (Eev. Codes, secs. 4975, 4976).' If there is any principle or rule of law by which the defendant can avoid liability, it has not been suggested by counsel, nor does it suggest itself to us.
In relation to the assignment that there was no evidence tending to show that Wilson was insolvent at the time any of the payments were made, counsel do not insist that the evidence is deficient as to all payments, but limit their claim to the Anderson and Hulden payments made in August. What we have said above with reference to these payments disposes of this contention.
In paragraph 7 of its charge the court instructed the jury, in effect, that payments by any debtor of moneys belonging to Wilson to avoid the possibility of the effect of the filing of a lien for such indebtedness would not be a defense, because there was no evidence tending to show that the defendant ever perfected a lien to any of the sums paid to it. Counsel insist that this was error. The contention is without merit. In the absence of some arrangement by contract between the several contractors and Wilson binding him to clear the buildings of claims of lien or giving them a right to do so in case of his failure to discharge his obligation, it must be presumed that they chose to rely upon his honesty and fair dealing to secure themselves. Hence they became his debtors and were bound to him alone.
Error is assigned upon several rulings of the court upon questions of evidence. We find no error in any of them.
The order denying defendant a new trial is affirmed. The cause is remanded with directions to the district court to modify the judgment by striking out the Anderson payment of $133.25 and the Pappin & Son payment of $100. So modified, the judgment will be affirmed.
Modified and affirmed.
Mr. Justice Holloway and Mr. Justice Cooper concur.
|
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an application for a writ of supervisory control. The facts involved are these:
Richard T. McCulloh brought an action in the district court of Silver Bow county against the Butte Brewing Company for personal injuries. The brewing company requested the Standard Accident Insurance Company, hereinafter referred to as the insurance company, and the Occidental Indemnity Company, hereinafter referred to as the indemnity company, to defend the action which they were obligated to do if their respective policies, hereinafter referred to, covered the case; both declining to do so, an action was instituted in the district court of the above-named county by the brewing company against both the insurance and the indemnity company under the Uniform Declaratory Judgments Act (secs. 9835.1 to 9835.16, Rev. Codes), to have determined whether the defendants therein, or either of them, were liable to defend the McCulloh action. The district court overruled a demurrer to the complaint interposed by the insurance company and sustained a demurrer to the complaint ■interposed by the indemnity company. This proceeding is to determine the correctness of the lower court’s ruling.
It appears that McCulloh was injured in the following manner: On May 3, 1938, the brewing company was engaged in delivering a barrel of beer to a place known as “Clifford’s” at 11 East Broadway in the city of Butte. The beer was about to be delivered into the basement through certain hinged doors in the sidewalk. On the day in question the beer had been taken from the brewing company’s truck and placed upon the sidewalk. As plaintiff was walking along the sidewalk one of the servants of the brewing company, without warning to McCulloh, lifted the doors from underneath the sidewalk preparatory to lowering the beer into the cellar through the door. The door was lifted just as MeCulloh stepped on it, and as a result he was injured.
The brewing company held two policies of insurance — -one issued by the insurance company and the other by the indemnity company. The insurance company’s contract was dated January 10, 1938, and the indemnity company’s January 19. In general, the insurance company’s contract obligated it to pay, amongst other coverages not here material, any damages imposed upon it by law because of bodily injury “sustained by any person or persons, caused by accident, and arising out of the ownership, maintenance or use of the automobile” specifically described in the policy. The policy provided that the automobile was to be used for commercial purposes and contained this provision: “ (b) The term ‘commercial’ is defined as the transportation or delivery of goods, merchandise or other materials, and' uses incidental thereto, in direct connection with the named insured’s business occupation as expressed in Item 11 of the declarations.” The policy also specifically provided that “Use of the automobile for the purposes stated includes the loading and unloading thereof.” The truck in question was covered by the policy.
The policy of the indemnity company obligated it to pay to the brewing company all sums for which it should become liable as damages imposed by law for bodily injuries, including loss of services or expense resulting therefrom, accidentally suffered by any person or persons not excluded in the policy, while within or upon the premises described as 214-304 North Wyoming Street, Butte, or “while elsewhere if caused by the conduct of the business operations of the Assured” described in the policy as Breweries — including bottling. It expressly provided “that the company shall not be liable in respect of bodily injuries or death * * * . 5. Caused by * any motor or other vehicle owned or used by the Assured or by any person while engaged in the maintenance or use of same, including the loading or unloading thereof elsewhere than within or upon the premises owned by or under the control of the Assured, including the sidewalks or ways immediately adjacent thereto. ’ ’
The precise question before us is whether the complaint by the brewing company against the insurance company and the indemnity company states facts sufficient to constitute a cause of action against each of the companies.
We shall first consider the sufficiency of the complaint as against the insurance company. In addition to the facts above recited, the complaint alleges that after the automobile had reached the point on East Broadway where the barrel of beer was to be delivered, it came to a full stop, and in connection with the operation of unloading and delivering, the barrel of beer together with a rope intended to be used to facilitate lowering the barrel from the sidewalk through the iron door into the basement were removed from the truck and placed upon the sidewalk; that “thereupon one of the plaintiff’s employees removed from said automobile another package of merchandise and carried it across the street for delivery to another customer;” that the other employee of plaintiff immediately thereafter preparatory to lowering the beer into the basement, entered the customer’s place of business at 11 East Broadway, proceeded to the basement and unfastened a lock under the iron door and raised a part or portion of one of the doors above the level of the sidewalk as McCulloh was about to step on it, thereby causing the injuries to him.
The insurance company contends that under the facts alleged, which must be accepted as true for the purpose of the demurrer, the use of the automobile had ceased, the unloading had been accomplished and the delivery of the beer# to the customer had commenced, and since the delivery, undertaken after the beer had been removed from the truck, was a part of the business of the brewing company and entailed no further use of the truck, the contract of the indemnity company, and not of the insurance company, protects the brewing company.
There are cases involving similar facts though differing in some respects which by analogy support this view. Among such cases may be cited the following: Stammer v. Kitzmiller, 226 Wis. 348, 276 N. W. 629, Franklin Co-op. Creamery Assn. v. Employers’ Liability Assur. Corp., 200 Minn. 230, 273 N. W. 809, Zurich General Acc. etc. Co. v. American Mutual etc. Co., 118 N. J. L. 317, 192 Atl. 387, Caron v. American etc. Co., 277 Mass. 156, 178 N. E. 286, and John Alt Furniture Co. v. Maryland Cas. Co., (8 Cir.) 88 Fed. (2d) 36.
As before stated, all of the foregoing cases differ in some respects from the facts in the case before us. Another line of cases as nearly like this in facts as those above cited, sustains the opposite view. Before making reference to them we point out that the insurance company policy covers some liability when the automobile is not in actual use. Thus it specifically covers liability for injuries sustained in loading and unloading though obviously the truck is not in actual use in that process.
The ease of Maryland Casualty Co. v. Tighe, (D. C.) 29 Fed. Supp. 69, involved a policy of insurance covering damages “ ‘arising out of the ownership, maintenance or use of the automobile,’ ‘including the loading and unloading thereof.’ ” It contained an identical clause relative to commercial use which was defined exactly as it is in the policy here involved. The business therein involved was that of fruit and vegetable peddler. The insured parked his truck alongside the curb near the Pieadilly Inn. An assistant on the truck carried vegetables from the truck to the Inn. On his return to the truck for further produce he ran into a person and injured her. The court in condemning a contention similar to that of the insurance company here, said: ‘ ‘ Such a construction of the policy as that contended for is entirely too narrow. Insured was using his truck in making delivery of produce to a customer. When the accident happened, the process of unloading was in operation. It was a continuing process, including delivery, and could not be complete until all of the produce was delivered to the Inn. The accident happened while the unloading was being consummated.”
In Wheeler v. London etc. Co., 292 Pa. 156, 140 Atl. 855, 856, the insured had transported two large steel girders to a certain garage building by means of a truck and trailer both of which were covered by an insurance policy. The girders were to be unloaded and delivered inside the garage then in process of construction. The wheels of the truck sank so deep into the earth that the vehicles were unable to get within the building and it became necessary to unload the girders. This was done in such a way that one end extended inside the garage and the other projected upon the sidewalk. The driver telephoned to the employer for help and the superintendent was sent with a service car and appliances to complete delivery of the girders. By this means the smaller girder was placed wholly within the building by using the insured truck and its motor power. The larger girder had to be jacked up and planks and rollers put under it. While this work was being done a boy was injured. At the time of the injury the insured truck was across the street and not being used. The policy provided for indemnity for injuries sustained while loading or unloading, and that the commercial cars “will be used for transportation of materials and/or merchandise incidental to the business” of the insured. The court held that the truck was being used in the operation for the reason that after the planks and rollers had been placed under the girder, the truck furnished the motor power to slide or roll the beam into the garage. The court reasoned that the truck was an indispensable agency in the work then being carried on.
The case of Panhandle Steel Products Co. v. Fidelity etc. Co., (Tex. Civ. App.) 23 S. W. (2d) 799, 801, involved a policy such as that of the insurance company here, except that it did not have a clause fixing liability for injuries resulting from loading or unloading. It held, however, that there was liability where the injury resulted from unloading steel beams from a truck. The court said: “The delivery to the purchaser of the material purchased was the main purpose of the haul, and the loading and unloading were as necessary to accomplish that purpose as was the driving of the truck from plaintiff’s place of business to the point of delivery. * * * The act of unloading the automobile was not an act separate and independent of the use of the truck, but was a step incident to the use and necessary to accomplish the purpose thereof. And, since it followed in a natural and continual sequence from the use, it would seem to follow logically that the act of unloading would not preclude a holding that the use of the truck was the proximate cause of the injury, if, indeed, such a holding be necessary to support a recovery by the plaintiff against the defendant. However, independently of that suggested conclusion, there can be no doubt that, since the act of unloading was one of the natural and necessary steps to the undertaking to deliver the beam, and followed in natural sequence the use of the truck to that end, which use was specifically contemplated and covered by the policy, we believe that the conclusion is unavoidable that the use of the truck was the primary and efficient cause of the injury, even though it should not be held to be the proximate cause, within the meaning of that term as employed in actions based on negligence of a defendant.” (See, also, Merchants Co. v. Hartford etc. Co., (Miss.) 188 So. 571, and Owens v. Ocean etc. Co., 194 Ark. 817, 109 S. W. (2d) 928.)
We hold that under the facts here presented the unloading of the truck was a continuous operation from the time the truck came to a stop and the transportation ceased until the barrel of beer was delivered to the customer. The unloading of the truck cannot be said to have been accomplished when the barrel of beer was placed upon the sidewalk. As well might it be argued that the loading of the truck consisted merely of the act of lifting commodities from the ground to the body of the truck. The loading of the truck would contemplate much more than that. It would embrace the entire process of moving the commodities from their accustomed place of storage or the place from which they were being delivered until they had been placed on the truck. So, too, the unloading thereof embraced the continuous act of placing the commodities where they were intended to be actually delivered by use of the truck. This being so, the insurance company policy has application. The court properly overruled the demurrer of the insurance company.
Does the complaint state facts sufficient to constitute a cause of action against the indemnity company? Its policy, as above pointed out, covered liability for injuries off the premises if caused by business operations, but excluded injuries caused by any motor vehicle owned or used by the assured, including the loading or unloading thereof. Having held that the injuries to McCulloh arose during the unloading process, the conclusion follows that under the express language of the policy of the in d'errmity company, it was exempt from liability. The court properly sustained the demurrer of the indemnity company.
The writ applied for is denied and the proceeding dismissed.
Mr. Chief Justice Johnson and Associate Justices Morris, Arnold and Erickson concur.
|
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] |
MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an appeal from a judgment and an order of the district court denying defendants’ motion to strike plaintiff’s cost bill and an order allowing plaintiff’s costs.
Plaintiff sued the defendants to recover $850 as damages alleged to have occurred in a collision between the plaintiff’s and defendants’ automobiles. The defendants’ answer consisted of general denials, a plea of contributory negligence and a cross-complaint. The cross-complaint contained allegations setting forth the facts of the collision, but alleged that such collision was caused by the negligence of the plaintiff, and damages were alleged and prayed for against the plaintiff in the sum of $55. The court dismissed defendants’ cross-complaint nonsuiting the defendants in respect thereto. The jury returned a verdict in favor of the defendants and judgment on the verdict was entered, allowing defendants costs in the sum of $77.82.
If the decree had gone no further, it would have been correct, but plaintiff filed with the court and served upon defendants his memorandum of costs in the sum of $110.30. Defendants moved to strike plaintiff’s cost bill and upon the hearing «on that motion the court overruled the motion and granted plaintiff’s costs in the amount mentioned. This is the ground of the appeal.
Section 9787, Revised Codes, provides that the plaintiff in an action for damages shall be allowed his costs where he recovers over $50, and section 9788 provides that defendant shall recover costs upon a judgment in his favor in such an action. The jury in the case at bar' returned a verdict finding the issues in favor of the defendants and judgment was entered accordingly. It is clear plaintiff gained nothing whatever by his action, and there is no statutory authority for allowing his costs; and that part of the judgment of the trial court is error.
The question of costs in actions similar to this is treated at some length in an annotation in 75 A. L. R. at page 1400. In the case therein reported preceding the annotation, reference is made to a number of cases wherein it was held that if the verdict be in favor of the defendant on the complaint and in favor of the plaintiff on the counterclaim, neither party was entitled to costs. But we think the better-reasoned cases are in harmony with the following: In Tank v. Clark, 179 Minn. 587, 229 N. W. 579, plaintiff sued for damages for trespass in the sum of $10. The defendant counterclaimed for a sum in excess of that amount. The court found that the plaintiff was entitled to recover the amount of his claim, but that defendant was also entitled to recover $10 on his counterclaim. It was there said that defendant, having succeeded in upsetting plaintiff’s claim and prevented any recovery'thereon, was the prevailing party and entitled to costs.
In Checketts v. Collings, 78 Utah, 93, 1 Pac. (2d) 950, 75 A. L. R. 1393, which is the case that is followed by the annotation heretofore mentioned, it is said in substance that neither party having recovered damages, the defendant having made general denial and filed a counterclaim, was the prevailing party.
This court in Gahagan v. Gugler, 100 Mont. 599, 52 Pac. (2d) 150, in construing sections 9787 and 9788, Revised Codes, held that costs are allowed of course to the prevailing party, and no discretion to disallow them is vested in the trial court. We reaffirmed that decision in the recent case of Luebben v. Metlen, ante, p. 350, 100 Pac. (2d) 935.
It appears to us that the trial court in allowing costs to plaintiff in the case at bar proceeded on the assumption that a counterclaim is in the nature of an independent action. While a counterclaim must contain pleadings sufficient to state a cause of action as fully as a complaint, yet in this case it merely comprises a portion of the defense set up against the cause of action in the complaint, and he who prevails in such an action is logically entitled to his costs. It is perfectly clear that the plaintiff did not prevail in the ease at bar, and he is not entitled to any costs.
The judgment is reversed and the cause remanded to the district court, with instruction to grant defendants’ motion to strike plaintiff’s cost bill, and as so modified the judgment will stand affirmed.
Mr. Chief Justice Johnson and Associate Justices Angst-man, Erickson and Arnold concur.
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] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an action to recover damages for breach of a written farming agreement. The contract, described by the parties as a farm lease, was entered into between plaintiff and defendant November 1, 1935. Its terms embodied the usual provisions characterizing such arrangements, that is, the party of the second part, plaintiff and respondent here, agreed to finance and carry on all farming operations at his own expense, looking for his compensation in a division of the crop produced. With respect to cultivation and planting the agreement provided: “The party of the second part hereby agrees to plow and plant to wheat, eighty (80) acres of above described land and to summer fallow the remaining eighty (80) acres all in the spring of 1936 and to alternate the planting and summer fallowing of the above described land the following year, thus planting eighty acres and summer fallowing eighty acres each year this lease is in force.’ ’ Under the general provisions of the contract appears the clause: “It is agreed that the portion of the grain hereby agreed to be paid to second party is in consideration of the full performance of all his obligations under this agreement. ”
The concluding part of the contract contains the following language: “It is mutually understood and agreed between both parties to this lease that in case this lease is not renewed at the time of expiration, or should the party of the first part sell the premises leased prior to November 1st, 1937, then the party of the second part is to be reasonably compensated for any work done on the land for which he has not been compensated.”
Plaintiff farmed the land pursuant to the written agreement during 1936 and 1937. In 1937 he summer-fallowed 74.5 acres in preparation for the 1938 planting. The contract was not renewed with plaintiff and another person took over farming operations in 1938. Under these circumstances plaintiff instituted this action to recover compensation for his 1937 summer-fallowing. He prevailed in the district court, and defendant is here on an appeal from the judgment.
The main contention urged by defendant is that, due to the provisions that the plaintiff would summer-fallow 80 acres and plant 80 acres of the land each year, and the provision that the portion of the grain agreed to be paid to plaintiff was to be in consideration of the full performance of his obligation under the contract, the last paragraph of the contract with respect to reasonable compensation for any work done on the land for which he had not been compensated has no bearing on this ease. This contention is predicated on the premise that plaintiff, by receiving a share of the crop due him each year, was compensated in full — including compensation for the summer-fallowing which was left upon the land at the termination of the contract. This argument tenders the important question to be determined on this appeal; namely, whether under the terms of the contract plaintiff is entitled to a reasonable compensation for the summer-fallowing he did in 1937, in addition to the share of the crops he received in 1936 and 1937.
The record shows that plaintiff first farmed the land in 1934, but does not show under what agreement he worked. Iiis uncontradicted testimony was that there was no summer-fallowing on the land at the time he first started farming it. The terms of the agreement now before us took effect November 1, 1935. What was the intention of the parties?
In arriving at the intention of the parties to a contract we are aided by the rules of interpretation embodied in sections 7527, 7532, 7538, 7540, 7541, 7543 and 7545 of the Revised Codes. With these rules in mind, we now consider the situation and circumstances of the parties as they existed November 1, 1935, the date the agreement was entered into.
As before noted, when plaintiff commenced farming the land in 1934, there was no summer-fallowing on it. Including the year 1934 and thereafter up to 1937 plaintiff summer-fallowed half of the land and planted the other half, and when the present agreement started there were approximately 80 acres of such summer-fallowed land.
It is plain from the wording of the last paragraph of the agreement that at the time of its execution the parties contemplated a renewal thereof. That clause was obviously inserted in order to protect the plaintiff in the event that it was not renewed, to the extent of reasonable compensation for any summer-fallowing which was left on the land. This is not an unusual provision in such agreements as this. As a matter of fact, it is common knowledge — in farming communities at least —that summer-fallowing is the working of the land during the spring and summer of one year so as to destroy weeds and conserve moisture in order to be able to raise a crop upon it during the following year. A farmer does not and cannot derive any benefit from his summer-fallowing until he harvests and sells the crop raised therefrom a year or more after he has summer-fallowed it. What was said by this court in Hall v. Hilling, 107 Mont. 432, 439, 86 Pac. (2d) 648, 651, in discussing an agreement of almost identical terms to the instant one, is pertinent at this point: “The agreement never contemplated that he should be paid any cash for his work in preparing the ground for the next year’s crop, except, of course, where some disposition was made of the property after the work had been done. He was always expected to get his pay for work and materials furnished out of the subsequent year’s crop. If, on the other hand, a new tenant were sought to be placed on the land and who would naturally benefit from any summer-fallowing already done, the owner was obliged to compensate Hilling [the tenant] in some way as was provided in the agreement in case a sale of the premises was made.”
And so it is in the present case. Plaintiff’s contract not being renewed, the ultimate fruits of his 1937 summer-fallowing labors were lost to him, he being thereby prevented from sowing a crop thereon in 1938. In lieu thereof, certainly plaintiff was entitled to a reasonable compensation for his labors. If that was not the intention of the parties, then the last paragraph of the agreement could have no meaning whatever. That paragraph provides that in case the lease be not renewed at the time of its expiration, the plaintiff should be reasonably compensated for any work done on the land for which he had not been compensated. It must be remembered that the only work to be done on the land under the agreement by the plaintiff was to plant 80 acres each year and to summer-fallow the remaining 80. The provision for compensating plaintiff for work done and for which he had not been compensated at the end of the contract could not have referred to the planting of the 80 acres, and it could not have pertained to anything but the summer-fallowing. If plaintiff carried out the tefms of the agreement, it naturally followed that there would be the summer-fallowing on the 80 acres from which the plaintiff could never receive any benefit in the absence of a renewal of the agreement, or payment for his work in lieu of the opportunity to reap a harvest from the land so summer-fallowed.
Counsel for defendant argues that the provision of the agreement providing for reasonable compensation to plaintiff only meant compensation for work and improvements other than the summer-fallowing of the 80 acres each year. For instance, he suggests that “if plaintiff had built a house upon the premises, particularly at the suggestion of plaintiff [defendant?] or had summer-fallowed ninety acres (if ninety acres had been available for that purpose), then he would be entitled to compensation for building the house, and would have been entitled to compensation for the ten acres of summer-fallow over and above what he had been required to do.” Clearly, such could not have been the intention of the parties, or the agreement would have been otherwise worded. Nothing in the record could be construed as lending support to such a suggestion. Any such activities on the part of plaintiff would certainly have constituted a breach of the contract on his part.
Under section 7532, Revised Codes, the contract is to be read as a whole, and not by particular paragraphs or sentences. If effect is given to the last paragraph thereof it can have no meaning excepting as we have here interpreted it. Taking into consideration the circumstances of the case, as permitted by section 7538, no conclusion seems possible other than that contended for by plaintiff. By virtue of sections 7540 and 7545, resultant ambiguities, if any there be, should be construed against defendant.
Assigned as error is the court’s action in denying defendant’s motion for nonsuit. In his brief counsel for defendant puts the matter thus: “The evidence clearly showed that less than eighty acres of summer-fallow had been left upon the place, and that the provisions of the contract had not been fulfilled. It is our view that since the plaintiff did not prove that he had performed any work for which he was entitled to compensation, the motion for nonsuit should have been sustained.” In view of the judge’s finding and the record before us which bears it out, we cannot agree with this contention. The finding of the court was as follows: “That the plaintiff did during the year 1937 summer-fallow 74.5 acres of land included in the contract involved herein; and the summer-fallowing of said 74.5 acres was a substantial compliance with the terms of said contract in respect to summer-fallowing said land and that plaintiff’s failure to summer-fallow 80 acres thereof during said year was not intentional nor an attempt to evade the provisions of said contract but was due to the fact that there was not sufficient tillable land for summer-fallowing during the year 1937 [because of a road crossing the land and other land not tillable] to enable the plaintiff to summer-fallow 80 acres of land during said year. ’ ’ The law never requires impossibilities. (Sec. 8760, Rev. Codes; compare, also, Waite v. Shoemaker & Co., 50 Mont. 264, 146 Pac. 736.)
We do not deem it necessary to a disposition of this case to discuss whether the agreement in question was a lease, a cropper’s agreement or otherwise. Under any name chosen for the agreement by counsel for the parties, or concept of law that would relegate it to one class of agreement or another, we feel that under the circumstances of the case, the result would have had to be the same.
With regard to the assignment that the court erred in refusing to grant the defendant’s motion and demand for change of place of trial, it would appear to us that counsel for both sides might have saved themselves unnecessary labors in their briefs. Suffice it to say on the question that defendant, having appeared in court and proceeded to trial, waived his right to raise the question on appeal from a judgment with which he was dissatisfied. (Great Northern Ry. Co. v. Hatch, 98 Mont. 269, 38 Pac. (2d) 976.)
Rehearing denied July 2, 1940.
In view of the foregoing disposition of the cause and the absence of reversible error in the other assignments of error, considered but not discussed here, the judgment of the district court is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman, Erickson and Arnold concur.
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an appeal by the State Board of Equalization from an order of the district court of Silver Bow county determining that there is no inheritance tax due and payable as a result of the transfer of certain described real property in Butte. The facts presenting the issue are set forth in the petition seeking a determination that no tax is due, as follows:
Estelle Mayer died on February 21, 1938. The records in the office of the county clerk of Silver Bow county disclose that at that time she was the owner of the property involved. The facts are that her husband, Berthold Mayer, paid the whole of the purchase price for the property, has ever since received the rents, issues and profits and paid the taxes thereon. The deeds from the sellers were placed of record in 1916, 1925 and 1933. Title was placed in the name of Estelle Mayer as a convenience and protection to her husband because of conditions then prevailing in Silver Bow county. When title was taken in the name of Estelle Mayer there was an express understanding and agreement with her husband that she would at any time upon his request execute a deed conveying the property to him. On October 9, 1937, pursuant to his request and without consideration, she made, executed, acknowledged and delivered a deed conveying the property to him, which was recorded April 8, 1938. Estelle Mayer was not the owner of the property at the time of her death nor at any other time.
The State Board of Equalization filed objections to the petition, asserting that it does not state facts sufficient upon which to base an order that no inheritance tax is due. The court found that deceased merely held the property in trust for her husband and was never the owner of it herself, and that in consequence there was no tax due.
Whether or not a tax is due depends upon the interpretation to be placed upon section 10400.1, Revised Codes. That section, so far as material here, provides for a tax upon transfers of property by a resident of the state, “When the transfer is by will or by intestate laws of this state from any person dying possessed of the property while a resident of the state.” (Subdivision 1.) Subdivision 3 provides for a tax when the transfer is made in contemplation of death. That subdivision also provides: “Every transfer by deed, grant, bargain, sale or gift, made within three years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without a fail-consideration in money or money’s worth shall, unless shown to the contrary be deemed to have been made in contemplation of death within the meaning of this section.” Subsection 8 provides in part as follows: “All transfers of property real, personal, or mixed, or of any interest therein, coming within the provisions of this section shall be prima facie proof, for the purposes of this Act, to have been made as of the date upon which the papers'evidencing such transfer are recorded, and all such transfers, if recorded after the death of the person or persons making such transfer, * * * shall be deemed, for the purposes of taxation under the provisions of this act, to have been made by will.”
The board contends that because of the last clause of the above-quoted subsection 8, the transfer in question here by Estelle Mayer to her husband is deemed to have been made by a will. That contention overlooks the fact that the property at all times belonged to the husband and never belonged to Estelle Mayer. It never having belonged to Estelle Mayer, then the property did not pass from her to her husband by will or otherwise. Neither death nor its contemplation affected any beneficial interest in or ownership of the property. Under our laws an inheritance tax is a tax upon the right or privilege of receiving property by inheritance. (State ex rel. Davis v. State Board of Equalization, 104 Mont. 52, 64 Pac. (2d) 1057, 108 A. L. R. 1397, and cases therein cited.)
A transfer is taxable when accomplished by will, the intestate laws or when made prior to death, in which latter event it is similar in nature and effect to a devolution made at the time of death and amounts to a substitution of disposition by will or the intestate laws. (In re Wadsworth’s Estate, 92 Mont. 135, 11 Pac. (2d) 788; 25 R. C. L. 203.)
A person cannot inherit property from another if he already owns it; in other words, before there can be an inheritance the decedent at some time must have been the owner of the property or holder of some beneficial interest therein. When decedent merely held the record title to property in trust for another, the latter does not acquire it by inheritance upon termination of the trusteeship by death, so as to make it subject to .an inheritance tax.
Gleason & Otis on Inheritance Taxes, fourth edition, page 544, states the rule as follows: “Of course the decedent must have title to the property; where it is merely held in trust for another, the termination of the trusteeship at his death does not constitute a taxable transfer.” (See, also, 61 C. J. 1670.) Cases illustrating this principle, though not identical on the facts, are: People v. Tombaugh, 303 Ill. 591, 136 N. E. 453, In re Peterson’s Estate, 182 Wash. 29, 45 Pac. (2d) 45, Sheard’s Estate v. Pemberton, 181 Wash. 62, 42 Pac. (2d) 34, In re Vandergrift’s Estate, 105 Pa. Super. 293, 161 Atl. 898, In re Russell’s Estate, (Sur.) 148 N. Y. Supp. 272, In re Pierce’s Estate, 132 App. Div. 465, 116 N. Y. Supp. 816, In re Romney’s Estate, 60 Utah, 173, 207 Pac. 139, and In re Loeffler’s Estate, 277 Pa. 317, 121 Atl. 186.
Our attention has been called to many cases holding that even though property passes at death pursuant to contract, rather than by will or the intestate laws, it is still subject to an inheritance tax. The following cases are illustrative: State v. Mollier, 96 Kan. 514, 152 Pac. 771, L. R. A. 1916C, 551; Krug v. Douglas County, 114 Neb. 517, 208 N. W. 665; In re Kidd’s Estate, 188 N. Y. 274, 80 N. E. 924. Those eases are not applicable here. There the decedent was the owner of the property at the time of or prior to his death, and the beneficiary received something which he did not theretofore own. Those facts are not before us in this case. Before an inheritance tax can be imposed, there must have been a transfer passing beneficial interest or ownership. Here the husband was the owner of the property at all times. The deed from the deceased to him simply passed the record title to him but did not transfer beneficial interest in or ownership of the property.
It follows that if the husband was at all times the owner of the property, he did not acquire it by transfer from his wife, and hence, the court was right in holding that there was no tax due. This conclusion does not defeat the above-quoted clause from paragraph 8 of section 10400.1, for that paragraph only deals with transfers “coming within the provisions of this section.” The first part of that section makes it clear that only such transfers are involved as pass from those dying “possessed of the property.”
Our conclusion is further fortified by subdivision 6 of section 10400.1, dealing with joint estates. It provides that upon the death of one joint owner, the rest shall be deemed to take a certain fraction of the property by transfer, but expressly excepts “such part thereof as may be shown to have originally belonged to tbe survivor and never to have belonged to the decedent. ’ ’
The judgment appealed from is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Arnold and Erickson concur.
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiff brought this action to recover on a promissory note dated February 5, 1927, in the principal sum of $750, alleged to have been executed by defendants, as husband and wife, and delivered to Empire Cattle Company and by it sold to plaintiff. Defendant Mary Niece filed a general denial. O. R. Niece answered, admitting the execution of the note by him, and denying the other allegations of the complaint. By way of affirmative defense he alleged that at the time of the execution of the note he purchased from Empire Cattle Company sixty head of purebred Hereford calves, paying therefor $1,350 in cash and giving the note in question as the balance of the purchase price; that the Empire Cattle Company expressly agreed in writing to furnish certificates of registration to defendants for two Hereford bull calves, and for all the heifers in the herd thus purchased; that contrary to the agreement certificates of registration were never furnished for the heifers; that in consequence defendants were obliged to, and did, sell the heifers as unregistered ordinary stock cattle, and not registered purebred cattle, and suffered damages because thereof in the sum of $1,500.
Plaintiff in her reply admitted that the Empire Cattle Company failed to furnish certificates of registration as alleged in the answer, and as a defense thereto alleged that the Empire Cattle Company had a herd of purebred Hereford cattle, among which were a large number of registered cows and heifers which were being run on the range in the months of April and May, 1927; that it also had choice bulls which it intended to use for the purpose of breeding the cows and heifers at the proper season and under such circumstances as to enable it to register the calves; that the defendants during the months of April, May and June, 1927, permitted their bulls to run among and breed said cows and heifers and prevented the Empire Cattle Company from being able to register the calves, and in addition caused loss and damage because the calves were born too early in the following season; that during the summer of 1927 O. R. Niece, representing both defendants, agreed with the Empire Cattle Company that their differences were settled by defendants giving up all claim for registration certificates upon consideration that the Empire Cattle Company surrender its claim for damages caused by defendants’ bulls.
By agreement the cause was tried to the court without a jury.- It was stipulated at the trial that all defenses on the note which might have been asserted against the Empire Cattle Company were available as against plaintiff. The court found in favor of plaintiff and awarded judgment in the sum of $1,430. Defendants have appealed from the judgment.
At the time of the argument in this court, defendants asked leave to file a motion to amend the transcript so as to include in it the opinion of the court. A written motion has since been filed, as well as objection thereto by plaintiff. The principal objection to the motion is that it was not timely. A motion to amend a transcript, when made before final submission of a case, is seldom denied. (Griffith v. Montana Wheat Growers’ Assn., 75 Mont. 466, 244 Pac. 277.) We think the motion should be granted in this case, subject to the limitation hereinafter stated.
The opinion was signed the same day the decision was rendered and refers to the decision by stating: “A decision in accord with this opinion is made and filed this day.” The decision simply recites that the issues (apparently meaning the issues of law) are found in favor of plaintiff and her damages fixed in the sum of $1,430. The opinion of the court was filed with the clerk and constitutes more than a mere memorandum of the reasons for the decision. It includes the trial court’s view as to what the evidence showed, and to that extent is the equivalent of findings of fact. This court has held that the trial judge’s opinion as such is no proper part of the record (Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838; Winnicott v. Orman, 39 Mont. 339, 102 Pac. 570, and Outlook Farmers’ Elev. Co. v. American Surety Co. of N. Y., 70 Mont. 8, 223 Pac. 905.) However, the fact that the findings are intermingled with other matters in the opinion should not preclude this court from considering them so as to ascertain what facts the trial court considered proved. The document should be made a part of the record for that sole purpose, and the portions not properly constituting findings of fact must be disregarded by this court.
The statutes (sees. 9366 and 9367, Revised Codes), require written findings of fact and conclusions of law to be separately stated where cases are tried by the court without a jury, and it has been held that such findings should be made although not expressly requested by the. parties (Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25; Billings Realty Co. v. Big Ditch Co., 43 Mont. 251, 115 Pac. 828), although certain objections are waived by failing to request them (sec. 9369). Therefore if made they should be stated separately from any opinion or other document the trial court sees fit to enter, so that no question can arise as to their propriety in the judgment roll or in the record on appeal.
We believe the case of Colorado Fuel & Iron Co. v. State Board of Land Commrs., 14 Colo. App. 84, 60 Pac. 367, sustains our view in this respect, although we would not approve it as authorizing our consideration of the trial court’s opinion as such.
From findings intermingled with the opinion we learn that the court found that the agreement relied upon in the reply was not proven by plaintiff to .its satisfaction. Since the evidence on the point was conflicting, we accept the finding of the trial court. We also learn that it found on conflicting evidence that there were thirty head of heifer calves purchased by defendants from the Empire Cattle Company (this is in line with defendants’ evidence, plaintiff taking the view that there were only .eight head), and that defendants sustained damages in the sum of $5 per head for failure to furnish the certificates of registration, which amount was deducted from the principal sum due on the note. The balance going to make up the $1,430 recovery was $715 interest and $115 attorney’s fees.
The appeal presents two questions for our consideration, viz.: 1. Was the court justified in holding defendant Mary A. Niece liable on the note? 2. Was the court warranted in fixing defendants’ damages at $5 per head for failure to procure the certificate of registration?
On the first question it should be said that Mrs. Niece denied that she signed the note. Her husband said that he signed her name to it. Others experienced in comparing handwriting expressed the opinion that the signature on the note purporting to be that of Mrs. Niece was in the same handwriting as those appearing on other documents coneededly signed by her. The court, however, declined to pass upon this apparent conflict in the evidence and found, in effect, that if Mr. Niece signed his wife’s name on the note he did so as her agent, and, if he exceeded his authority, that she ratified his act in that respect.
Defendants first contend that plaintiff, having alleged the execution of the note by both defendants, will not be permitted to show, without amending the pleadings, that it was in fact signed by one defendant as agent, actual or ostensible, for the other. This court has held that the manner and the means of executing a note is a matter of evidence and not of pleading, and that an allegation of the execution of a note by a certain person is sustained by proof of execution by an authorized agent of such person. (Helena Nat. Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 51 Pac. 829, 63 Am. St. Rep. 628, and see to the same effect Santa Rosa Bank v. Paxton, 149 Cal. 195, 86 Pac. 193, and Bancroft’s Code Pleading, sec. 821.) Likewise ratifica tion of the acts of an agent can be proved under the general allegation that the principal executed the contract. (Goetz v. Goldbaum, 4 Cal. Unrep. 749, 37 Pac. 646; Blood v. La Serena Land & Water Co., 113 Cal. 221, 41 Pac. 1017, 45 Pac. 252.)
On the question of agency and ratification we have the following facts: Mr. Niece testified: “I have been looking after Mrs. Niece’s personal property as well as her real estate and for sometime as a husband would. I have been asked sometimes to look after it, and other times perhaps I wasn’t. The cattle which Mrs. Niece and I bought under that bill of sale were taken out to Mrs. Niece’s farm immediately south of Wibaux and placed on that farm and they were held there and owned by Mrs. Niece. They were not bought for her special benefit; the benefit of the family perhaps.”
Mrs. Niece testified: ‘ ‘ There has been stock there, yes. That stock has belonged to me. I didn’t personally go out and buy the stock. My husband and I talked it over. He told me he was buying stock and he bought stock and placed it on that ranch. I supposed he bought it in my name. It was in my name afterwards, and he sold stock that belonged to me. I don’t know whether he sold it in my name or in his own. It was more or less of a family matter. I let him go ahead and look after that as a husband and wife do. We still have that arrangement. I really don’t know as I had knowledge that my husband bought cattle on time for me in some cases. I knew that he was trying to buy cattle from the Empire Cattle Company. I knew there were cattle there.”
The cattle as well as other property were assessed since 1923 in the name of Mrs. Niece; they were sold by Mr. Niece who bought and sold other cattle both in his own and in her name. The bill of sale for the cattle in question here ran in the name of both defendants, and the transaction was characterized by Mrs. Niece asa“ family matter. ’ ’
In considering the question of the agency between the husband and wife, we keep in mind the rule that “while the agency of the husband for the wife is not to be implied from the fact that he may have undertaken an enterprise with a view to her benefit as well as his own, yet when a husband assumes to act for his wife, and when his action naturally tends to accomplish her known wishes, it needs but little evidence to warrant an inference that the action was authorized by her. Slight evidence of the agency of the husband for the wife is sufficient to charge her where she receives, retains and enjoys the benefits of the contract.” (30 C. J. 622.) The rule is otherwise stated in 3 C. J. S. 172, as follows: ‘ ‘ The courts have been particularly rigid in finding an undisclosed agency where the relationship of husband and wife exists between the alleged principal and agent. The principles of apparent authority have been given full sway under such circumstances, in order to allow the person extending the credit to recover from the‘.person actually benefited. This is particularly true where the credit is extended to enhance the value of the spouse’s property and she accepts the benefit. ’ ’
And we also keep in mind the rule stated in 2 C. J. 488, as follows: “In a great majority of the cases the ratification of unauthorized acts of an agent need not be, and is not, made expressly, but is implied from the acts and words of the principal, except where the ratification is required to be in a particular form; in some jurisdictions this rule is provided for by statute. In reference to what acts or conduct will constitute an implied ratification a distinction should be made between cases where the person assuming to act as agent did so without authority, and cases where there was an actual agency but the agent exceeded the authority conferred, as conduct which in the latter case might be sufficient will not always amount to a ratification in the former. As between the principal and the third persons dealing with an agent less is required to constitute a ratification than is required between the principal and the agent.”
We conclude that on the record before us the court was justified in holding Mrs. Niece liable upon the note, as well as her husband.
The only other point on the merits of the case is that of the question of the proper award of damages to the defendants for failure of the Empire Cattle Company to produce the certificates of registration pursuant to 'the agreement. As above pointed out, the court found that the damage sustained by the defendants in this respect was $5 per head. There is evidence supporting that conclusion. Defendants, on the other hand, produced evidence to the effect that they were damaged in amounts varying from $17.50 to $30 per head. The evidence on the part of the defendants is to the effect that the cattle were purchased by them with the view of commencing a herd of registered purebred cattle. In other words, they bought the cattle for breeding purposes and not for ordinary stock cattle. The plaintiff’s evidence was to the effect that the only damage which defendants could sustain would be the cost of obtaining a certificate of registration; that the cattle were qualified for registration, and their quality was not changed in the least by the absence of the certificate. However, the record shows that it was not possible to register the cattle after they were one year old, and we hold that the court was in error in holding that the damage did not exceed $5 per head.
Rehearing denied September 24, 1940.
Also, plaintiff by her pleadings in effect admits that the absence of the certificates of registration causes some damage, because by her reply she contended that she had been damaged because she was unable to register some of her own cattle because of the acts of defendants. The actual value of registered livestock depends upon the uses to which the owner intended to make of them. (Kopplin v. Quade, 145 Wis. 454, 130 N. W. 511; Matthews v. Langhofer, 110 Kan. 36, 202 Pac. 634.) We cannot agree that the damage to defendants by reason of the failure to furnish certificates of registration as agreed was only the cost of obtaining such certificates.
It is our view that for error in fixing the amount of damages sustained by the defendants, the cause should be remanded for new trial on the issue only of the extent of defendants’ damages. If it is less than the amount due on the note, with interest and attorney’s fees, then plaintiff is entitled to judgment for the excess.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
|
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] |
MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an action to foreclose a mechanic’s lien for material furnished and labor performed. The complaint contains two causes of action, the first being on a written contract and the second on an open account for work and labor. The defendant admitted her obligation under the written contract and alleged payment of the amount due thereon in full. On the second count she admitted that the plaintiff had performed work and labor on her building and furnished material of the value of $274.05 and no more.
Following her answer the defendant set up three affirmative defenses in which she alleged in substance that a dispute arose over the account; that the major portion of the account was for work done without her knowledge or authority, and that after conversations between her agent and the plaintiff an account stated was agreed upon under which her agent and plaintiff fixed the sum of $277.65 as the amount she should pay; that pursuant to such agreement she tendered her check to the plaintiff for that amount on April 10, 1936, and that plaintiff accepted the same and retained it until August 3 following; that at the time of the delivery to and acceptance of the cheek by the plaintiff, and at all times since, she has had on deposit in the bank on which the check was drawn, subject to check, a sum sufficient to pay the same in full.
The testimony taken at the hearing before the court sitting without a jury is omitted from the record, and it necessarily follows that we are precluded from any review of the facts as found by the trial court, both parties and this court being bound by the facts so found. All the issues were found in favor of the defendant.
After recounting the facts that occurred prior to the agreement as to the account stated, the trial court made these findings:
“XIV. That pursuant to said agreement the defendant on April 10, 1936, delivered to the plaintiff her cheek drawn upon the First National Bank of Dillon, Montana, in the amount of $277.65 in payment of said account so stated.”
“XVI. That the plaintiff accepted said check and retained the same from April 10, 1936, until August 3, 1936.”
“XVII. The court finds that, the defendant is indebted to the plaintiff in the sum of $277.65 upon a stated account, which said amount the defendant tendered to the plaintiff on April 10, 1936.”
On the findings of fact the court concluded, as a matter of law, plaintiff’s lien was released and discharged by defendant’s tender to the plaintiff of the balance due on the account stated, and that, the plaintiff having predicated his right of action on the existence of a lien, “when in law no such lien existed, the defendant is entitled to recover of and from the plaintiff her costs expended in the defense of this action including a reasonable attorney’s fee. ”
Judgment was entered allowing defendant costs and attorney’s fees in the sum of $176.21, and by the same decree the plaintiff was allowed the sum of $277.65, the amount theretofore agreed to in the account stated, and the court directed that defendant’s attorney’s fees and costs be offset against the $277.65 allowed the plaintiff.
Plaintiff elected to abide by the ruling of the court as to its conclusion that no lien was established, but appealed from the judgment allowing defendant’s costs and' the amount of the attorney’s fee. It is conceded that defendant is entitled to a reasonable attorney’s fee under the provisions of section 9799, Revised Codes, but it is contended that the amount allowed is excessive. As to the costs, plaintiff’s position is that the court having provided in the decree that plaintiff should have judgment for $277.65, stripped of the lien, the action became one for the recovery of money, and that plaintiff, having recovered over $50, was entitled to his costs as of course by virtue of subsection 3 of section 9787, Revised Codes.
Error is assigned on: (1) Costs allowed defendant, and erroneously denied to plaintiff; and (2) excessive attorney’s fees allowed defendant. No error, of course, being assigned as to any of the findings.
As to costs, section 9787 provides: “Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: * * * 3. In an action for the recovery of money or damages, * * * when plaintiff recovers over fifty dollars. * * * 6. In an action to foreclose a lien or pledge. ’ ’ On the other hand, section 9799 provides in part for the recovery of attorney’s fees by plaintiff in an action to foreclose a lien, and then further provides that, “such reasonable attorney’s fees must be allowed to the defendant against whose property a lien is claimed, if such lien be not established.” The section provides for costs for plaintiff in addition to attorney’s fees but says nothing about costs fcBr the defendant other than for attorney’s fees. Section 9788 provides: “Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in the next preceding section, and in special proceedings.” The next preceding section is, of course, section 9787.
As to plaintiff’s contention that the lien being eliminated, the action became one for the recovery of money or damages under subdivision 3 of section 9787, it is untenable. The action was commenced to foreclose a lien under subsection 6, and must be followed through to conclusion on that theory. This court has held that “an action for the foreclosure of a lien is not an action on contract for the recovery of money or damages only.” (Soliri v. Fasso, 56 Mont. 400, 185 Pac. 322, 324; see, also, Henderson v. Hooper Sugar Co., 65 Utah, 241, 236 Pac. 239, 45 A. L. R. 637.)
It was said in Gahagan v. Gugler, 100 Mont. 599, 52 Pac. (2d) 150, 152, that “ordinary costs of suit, as provided for by statute (sec. 9802, Rev. Codes 1921), are allowed, of course, to the prevailing party (secs. 9787, 9788, Id.), and no discretion to disallow them is vested in the trial court.” In the ease at bar plaintiff was allowed only the amount theretofore agreed to in the account stated, and when he sued for more he failed in the suit and the defendant, who stood on the ac count stated, was the prevailing party and entitled to her costs.
It is said in 14 American Jurisprudence, section 2, page 5: “Costs are said to be in the nature of incidental damages allowed to the successful party to indemnify him against the expense of asserting his rights in court, when the necessity for so doing was caused by the other’s breach of a legal duty. ’ ’
Plaintiff next contends that the defendant did not comply with the provision of section 9794, Revised Codes, in that she failed to deposit in court the amount previously tendered to plaintiff, and by reason of such failure was not entitled to her costs. Technically this contention of the plaintiff is a correct construction of the statute, but he agreed to the account stated as the amount he was entitled to, which was in the exact amount he was allowed by the court; he accepted defendant’s check for the amount which he held for several months; what finally became of such check is not shown, but nothing appears to show he could not have obtained the money thereon; the defendant did not at any time raise any question that the amount the court allowed the plaintiff was not due and owing after the account stated was agreed to; but plaintiff chose to sue rather than abide by the agreement; plaintiff did not demand that the defendant make any deposit in court, and, under all the circumstances, to attempt to evade paying the defendant’s costs of useless litigation cannot be sustained. Furthermore, under the rule laid down in Hirsh v. Ogden Furniture Co., 48 Utah, 434, 160 Pac. 283, and cases there cited, plaintiff would be held to have waived the requirements of section 9794.
On the question of the attorney’s fee allowed, defendant asked for $250. The trial court reduced the amount to $150, and plaintiff contends that $100 was sufficient. We are not disposed to interfere with attorney’s fees fixed by the trial court unless there appears to have been a clear abuse of discretion. It was said in the case of Forrester & MacGinniss v. Boston & Montana Consol. Copper & Silver Min. Co., 29 Mont. 397, 409, 74 Pac. 1088, 1093: “The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time, and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys. * '* * The result secured by the services of the attorneys may be considered as an important element in determining their value.”
No error appearing, the judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Angst-man, Erickson and Arnold concur.
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43
] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
Defendant has appealed from a judgment entered pursuant to a jury’s verdict awarding plaintiff $500 as indemnity for the final 11 months of a 30-month period of total disability under a health and accident insurance policy, with interest and costs. A motion for new trial was made by defendant and denied by the court.
The insurance policy in question is divided into several parts, only three of which need be mentioned. Part I is the schedule of indemnities and recites that the monthly accident indemnity is $50. Part II provides specific indemnities for loss of life, hand, foot or eye as the result of accident, and is not applicable here. Part III is the portion in controversy here and is as follows:
“Part III. Accident Indemnity — Total or Partial Disability.
“ (a) If ‘such injury’ shall not result in any of the losses
Total Disability enumerated in Part II, but shall, independently and exclusively of all other causes, immediately, continuously and wholly disable and prevent the Insured from performing any and every kind of duty pertaining to any occupation or business, the company will pay, for the continuous period of loss of time caused thereby, not exceeding thirty (30) consecutive months, accident indemnity at the rate per month specified in Par. I;
“(b) Or, if ‘such injury’ shall immediately and eontinuPartial ously disable and prevent the Insured from perform-Disability ing one .or more important daily duties pertaining to his occupation or business, either from date of accident or following total disability, the company will pay for the continuous period of loss of time caused thereby, not exceeding six (6) consecutive months, accident indemnity at one-half the rate per month specified in Par. I;
“Provided, that indemnity under this Part III shall not be payable for disability resulting from any loss specified in Part II; nor for any period during which the Insured is not under the regular professional attendance and treatment of a legally qualified physician or surgeon.”
It will be noted that accident indemnity is to be paid for total disability as defined in the policy “for the continuous period of loss of time caused thereby, not exceeding thirty (30) consecutive months,” excluding (1) disability resulting from any of the specific losses mentioned in Part II, and excluding (2) “any period during which the Insured is not under the regular professional attendance and treatment of a legally qualified physision or surgeon.”
Payments for the first 9 months after plaintiff’s injury were made voluntarily by defendant; the next ten monthly payments were involved in a former action appealed to this court (Scinski v. Great Northern Life Ins. Co., 107 Mont. 525, 86 Pac. (2d) 749) and have since been paid. The present suit involves plaintiff’s claim for payment for the 11 months from August 6, 1937, to July 6,1938, the last 11 months of the 30-month period, though by error not questioned by cross-appeal the verdict and judg ment were for only $500 (covering only ten monthly payments), together with interest and costs.
The only testimony offered was that of plaintiff and his witness, Dr. Shields. Plaintiff testified concerning the accidental injury of his back in a mine; he stated that ever since the injury he had been unable to stoop over or lift anything without pain and therefore could not work at mining, which was the only occupation he had ever followed; that he had earned nothing since; that the mining company refused him employment; that ever since his injury he could “do nothing except walking around and eating and that’s about all;” that after his accident he was taken to the hospital, where Dr. Shields treated him, and that he went to see the same doctor twice each month until March, 1938, and once each month thereafter; that since May, 1937, the doctor had given him no medicine but had examined and questioned him and had advised the continuance of steam baths, and that ever since that date he had continued taking that treatment, but that there was no doctor at the steam baths.
Dr. Shields testified to his treatment of plaintiff beginning on January 6, 1936, for “a contusion or a bruising of the lower lumbar spine;” he said that for workmen’s compensation purposes plaintiff’s disability was considered as temporary total until May, 1937, and was then rated as from 20 to 25 per cent, permanent partial; that since that time plaintiff had been in “a few times,” but that he could not say how many times or just when, except March 11, May 31, and June 27, 1938; that he saw many patients every day and had to rely entirely upon clerks for his records; that he had done nothing but talk with plaintiff and question him; that plaintiff was taking the steam baths and said that he felt better and that his legs were improving, and ‘ ‘ I told him if they were he could continue; ’ ’ that during 1936 and 1937 he did everything he could do for plaintiff professionally, including strapping his back, prescribing different forms of medicine, and diathermy, an electrical heating process, until both he and the patient felt that nothing further could be done; that plaintiff had some arthritis which had not disabled him before his accident but may have been aggravated by it; that at the time of the trial (January 4, 1939) plaintiff was still unable to do “pick and shovel work” or “hard labor with stooping and lifting heavy weights,” but could do “light work such as watching or working at the precipitating tanks,” etc.
Appellant names five specifications of error, two of which were that the court erred in denying defendant’s motion for a directed verdict, and that the verdict was not sustained by the evidence and was against the law. The other three specifications were of alleged errors in giving Instruction No. 11 and in refusing to give defendant’s offered Instructions Nos. 16 and 17.
Instruction No. 11, given over defendant’s objection, was as follows: “If you believe from a preponderance of all of the evidence in this case that Mike Scinski was totally disabled during the months mentioned in the complaint and for which he claims disability benefits, then it is immaterial whether Mike Scinski was or was not under the regular professional attendance and treatment of a legally qualified physician or surgeon. ’ ’
Defendant’s offered Instructions Nos. 16 and 17, which were refused, were as follows:
“You are instructed that the plaintiff cannot recover against the defendant for any period of time during which he was not under the regular professional attendance and treatment of a legally qualified physician and surgeon, and that the periods of time for which the plaintiff would be entitled to recover, if under such treatment, are monthly periods, and consequently, he would be entitled to recover for only such monthly periods as he was under regular and professional attendance and treatment of such physician and surgeon.” (Offered Instruction No. 16.)
“You are instructed that the doing of acts or the application of medications selected by a person himself and not directed or prescribed by a physician or surgeon are not treatments and do not constitute treatments by a-physician or surgeon.” (Offered Instruction No. 17.)
Only two questions are raised by the appeal. First, the sufficiency of the evidence to sustain a verdict of total disability and, second, the meaning of the word “period” in the third paragraph of Part III of the policy, whether it means the same as in the first and second paragraphs of Part III, or whether it means a period of one month because the indemnity is stated on a monthly basis. We shall discuss the latter point first.
The question was not decided in Scinski v. Great Northern Life Ins. Co., supra, the case having been disposed of upon the ground that whether plaintiff was under regular medical or surgical attendance and treatment was for the jury.
Upon this question a number of decisions of other courts have been cited by the parties, none of which is in point, due to differences in the facts and in the policies interpreted.
If there is any ambiguity in the policy it must be resolved against the defendant, since the policy form was provided by it. (See. 7545, Rev. Codes.) However, we are unable to see that there is any ambiguity in.the policy. The indemnity for total disability resulting from accident is by the terms of the policy given for “the continuous period of loss of time caused thereby, not exceeding thirty (30) consecutive months.” In other words, each accident indemnity period covered by the policy is that' continuous period of loss of time resulting from an accident (subject to the limitation stated), and therefore the word “period” in the exclusion clause (the third paragraph of Part III) should normally be construed in the same way unless another construction was obviously intended by the parties. Finding nothing in the policy to the contrary, it seems to us that the word “period” manifestly means the same throughout Part III, and that there is no ambiguity in this respect and therefore no room for interpretation. Appellant contends that since the indemnity is provided at the monthly rate of $50, the word “period” in the third paragraph should be interpreted as meaning a period of one month, instead of “the continuous period of loss of time” mentioned in the two immediately preceding paragraphs. However, if that had been the intent, the defendant could easily have so provided in the policy. Furthermore, since the accident indemnity to be paid upon any claim was naturally made dependent upon the duration of the disability, it necessarily had to be stated in terms of some unit of time, whether month, week or day. It cannot, therefore, logically be assumed that because the indemnity was to be measured by months the word “period” as used in the third paragraph of Part III should be construed as a period of one month, so as to inject into the contract an ambiguity or inconsistency where none existed. If the indemnity amount had been stated as a weekly or daily amount, would it be argued that no indemnity was payable for any week or day during which the insured received no regular medical treatment?
Appellant’s contention seems to be based partly upon the view that “regular” means “periodical,” or “recurring at uniform intervals.” That is a possible construction, but is not to be assumed so as to result in an ambiguity in the use of the word “period,” where no ambiguity would otherwise appear.
“Regular” means systematic, orderly, methodical, not subject to unexplained or irrational variation, not exceptional or unusual. (Webster’s New International Dictionary: Merriam Webster, 2d ed.) It does not necessarily mean “periodical” with reference to medical or surgical treatment, unless in the specific instance “regular attendance and treatment” necessarily means “periodical attendance and treatment,” which human experience shows is normally not the case in accidental injuries, where the disability normally reaches a static condition either not requiring or not benefiting from further periodical treatment. The doctor’s testimony indicated that the plaintiff reached that stage in 1937. Thus if the visits to the doctor and the continuance of steam baths during the months involved in this suit are not considered as regular professional attendance and treatment, it still does not follow that he did not receive such treatment during the period of disability, within the intent of the policy.
Holding, as we must logically do, that “period” as used in both the inclusion and exclusion clauses means the indemnity period following the accident in question, we must conclude that the refusal to give offered Instructions 16 and 17 was not erroneous. Offered Instruction No. 16 incorrectly stated that regular medical treatment had to be shown during each month of the indemnity period.
Rehearing denied February 29, 1940.
Offered Instruction No. 17 was inapplicable, since the evidence showed that plaintiff did receive professional medical or surgical attendance or treatment during the 30-month period of claimed disability; and the regularity of such treatment was a question for the jury. (Scinski v. Great Northern Life Ins. Co., supra.)
Instruction No. 11 was incomplete. There should have been added to it something substantially as follows: “during those particular months, if you find that during the disability period as a whole he was under such regular attendance and treatment. ’ ’ In other words, it should have been made apparent to the jury that regular treatment during the disability had to be shown, but not necessarily during the months in question.
However, there was ample evidence of regular treatment during the disability and it does not appear that the jury were misled; if they were, the trial court cannot be put in error, since the objection does not “specify particularly wherein the instruction is insufficient or does not state the law..’ ’ (Sec. 9349, Rev. Codes.) The objection was that the instruction was “an attempt by the court to nullify” a provision of the insurance contract; but it is apparent from the record that appellant’s whole contention was that regular professional treatment had to be shown for the particular months in question, and not for the disability period as a unit. Therefore the objection is insufficient to warrant reversal.
The other question raised by appellant is the sufficiency of the evidence to warrant its submission to the jury and to sustain the verdict; and we cannot find such a lack of substantial evidence of total disability as to necessitate a reversal.
The judgment is therefore affirmed.
Associate Justices Morris, Angstman, Erickson and Arnold concur.
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HONORABLE GUY C. DERRY, District Judge,
sitting in place of MR. JUSTICE ANGSTMAN, disqualified, delivered the opinion of the court.
Plaintiff has appealed from the judgment of the district court directing a verdict against her. The action is based upon her alleged loss of property by reason of the alleged conspiracy and wrongful acts and conduct of the defendants.
The complaint alleges that certain real estate located in the city of Butte, and certain unnamed stocks and bonds, were transferred to her and her husband by a warranty deed and by assignments and transfers by one Elizabeth D. Baxter during her lifetime, which instruments were alleged to have been delivered to the defendant Poore for delivery to her and her husband, or to her in the event of the death of her husband. Her further contentions can best be made clear by reference to the complaint. Paragraph 10 contains this allegation: “That thereafter and on said date [previously shown to be May 5, 1930] the said defendant, Poore did prepare a deed conveying said real property to the said Frank K. Wilson and plaintiff, and did prepare necessary assignments or transfers setting over and conveying unto said Frank K. Wilson and plaintiff, stocks, bonds and other securities of the value of One Hundred Fifty Thousand Dollars ($150,000) and did transfer, convey and set over unto plaintiff, stocks and bonds and other securities of the value of Fifty Thousand Dollars ($50,000.00), which said deed was thereupon duly executed by the said Elizabeth D. Baxter and delivered to the said defendant, Poore, and the said assignments and transfers of the said stocks, bonds, and other securities, together with said deed were delivered to the said defendant, Poore, to be delivered by said Poore to the said Frank K. Wilson and plaintiff, or in the event of the death of said Frank K. Wilson to deliver the same to plaintiff, when the estate of the said James Hamilton was closed by appropriate judicial proceedings, or upon the death of the said Elizabeth D. Baxter.”
It is further alleged that Frank K. Wilson died on the 1st day of September, 1932, and the plaintiff became and was entitled to receive from defendant Poore the deed in question, together with the stocks and bonds alleged to have been assigned and transferred. In another paragraph it is alleged that Poore has wilfully and wrongfully failed, neglected and refused, and does now so fail, neglect and refuse to make delivery of said deed and said assignment and transfers to plaintiff, and that the defendant Davis, well knowing that the assignments and transfers of said stocks, bonds and other securities had been made, refused and neglected to make delivery of said stocks and bonds to the said Frank K. Wilson and this plaintiff, and plaintiff alleges on information and belief, that said deed, assignments and transfers aforesaid, were, by said Poore, destroyed. It is further alleged that the defendants, by their representations that the property would be delivered to her, lulled her into a sense of security, and that she did not know until she was advised by other persons, on or about the 5th day of July, 1937, that the hotel and other property in the estate of Elizabeth D. Baxter had been distributed nearly two. years prior thereto. As a result, she alleges that she has been deprived of her rights and interest in the property in question, of the value of $300,000, for which sum she demands damages, together with a like sum claimed as exemplary damages. This action was filed September 25, 1937. Mrs. Baxter died February 23, 1931.
The question to be here determined is whether any competent evidence was given at the trial which is sufficient in law to go to the jury for their determination as to whether the allegations of the complaint have been proved, or from which such proof may be inferred, having in mind the well-established rule that upon a motion for directed verdict the evidence must be viewed from the standpoint most favorable to the plaintiff and that every fact must be deemed proved which the evidence tends to prove. (Staff v. Montana Petroleum Co., 88 Mont. 145, 291 Pac. 1042.)
To prove the execution and delivery of the deed and of the assignment of the stocks and bonds in question, plaintiff testified to statements alleged to have been made to her by Mrs. Baxter during her lifetime. She also produced witnesses who testified to statements alleged to have been made by Mrs. Baxter, to the effect that she intended to “provide for” the Wilsons, or had “left” them this hotel and other property. None of that testimony by other witnesses tends to corroborate Mrs. Wilson’s testimony about deeds and assignments, as it is at least equally susceptible to indicate the execution of a will. All of these declarations, in so far as they relate to the gift of property to the plaintiff, were allegedly made subsequent to the alleged execution of the deed in question and the alleged assignment of the stocks and bonds. The deed and assignment were not offered in evidence, and no evidence of their contents was given. The proof supporting the allegation of a gift consists solely of her statements as to what she had done in regard to the property theretofore. The only testimony tending to prove execution and delivery of the deed and transfer of the stocks and bonds, was that given by the plaintiff. Nothing of probative value was added by any other witness. The following quotations from her testimony, received over objection that it was hearsay, give her evidence to prove there had been an actual transfer and delivery:
“I went into her room and she said, ‘Mrs. Wilson, I have everything taken care of now and Mr. Poore has the papers. I had given you and Mr. Wilson the Butte Hotel property and $150,000.00.’ ”
“I went into her room and she said, ‘Mrs. Wilson, I have everything taken care of, I have given you and Mr. Wilson the Butte Hotel property jointly in a deed of escrow and stocks and bonds amounting to $150,000, and you $50,000 the same as I have Mrs. Stahl,’ and she says, ‘I am very tired because,’ she says, ‘there was so much after I have given those and I made a will after that.’ She told me she had given the deed which she had executed to the hotel property and stocks, and they were in Mr. Poore’s possession.”
Questioned as to why Mrs. Baxter did not deliver the deed and stock certificates and bonds to her and Mr. Wilson at that time, she answered as follows: “She said she could not give them to us at the present time as the estate would have to be probated. She said that the deed and stocks and bonds would be delivered to me as soon as the-estate was distributed.”
Are such declarations, as here shown, competent evidence to establish the actual transfer, and were they properly received in evidence? It is wholly unnecessary to consider whether a conspiracy had been established until it is first determined whether any transfer was made. It is a general and well-established principle of law that, where persons are sued for a civil wrong, it is the civil wrong resulting in damage, and not the conspiracy which constitutes the cause of action. A conspiracy is not the subject pf a civil action unless it results in damage to the party complaining. (5 Cal. Jur. 528; Mining Securities Co. v. Wall, 99 Mont. 596, 45 Pac. (2d) 302-304.)
The action was brought by the plaintiff on the premise that a written transfer of the real and personal property in question had been made by Mrs. Baxter to the plaintiff. Indeed, this would seem to be the only possible basis for her action. As to the realty, under section 6859, Revised Codes of 1935, the transfer could only be effected by operation of law, or by an instrument in writing subscribed by Mrs. Baxter, or by her agent authorized in writing. And it is difficult to see how an effective gift of stocks and bonds held in an estate could be made verbally by an heir at law.
As shown by her complaint, plaintiff’s action was based upon the theory that the transfers were actually made and had been lost or destroyed, or were in the possession of defendant Poore, who refused to deliver them. Only the contents of a document can prove that it constitutes a transfer, for a statute requiring a transfer to be in writing is nullified for all practical purposes if the only proof necessary is the parol statement of someone’s conclusion that a written conveyance was made. And under our Code sections 10516, 10585 and 10586, there can be no evidence of the contents of a writing other than the writing itself, unless the original has been lost or destroyed, in which case the proof of loss or destruction must first be made, or, as further applicable to this case, unless the original is in the possession of the party against whom the evidence is offered and he fails to produce it after reasonable notice. Here there was no proof of the loss or destruction of the deed or transfers of stocks and bonds, so as to permit other evidence of their contents. And obviously, under section 10516, no demand upon Mr. Poore to produce them at the trial in May, 1938, can be effectual as a foundation for such evidence until it has first been shown by evidence that “the original is in the possession” of Mr. Poore. The only evidence even tending to prove that the originals had ever been in his possession was plaintiff’s own testimony of Mrs. Baxter’s declarations in May, 1930, that “Mr. Poore has the papers” and that “they were in Mr. Poore’s possession.” Assuming that such declarations are any evidence of Mr. Poore’s possession eight years later, they are clearly hearsay, and if they are admissible at all it is only on the theory that they are admissions against interest. If they were admissions against interest and were therefore admissible for othe purpose of showing that transfer had been made by Mrs. Baxter, they would clearly not be admissible for the purpose of showing that Mr. Poore had possession of the documents; and since there is no proof of that fact, there is no basis for parol evidence of the contents of the writings, either by Mrs. Baxter’s hearsay declarations or otherwise. In other words, her supposed declarations against interest, which are offered as some proof of the execution and of the contents of written documents and are therefore not admissible until it is shown that the party having possession of the documents has failed to produce them, cannot be introduced in the first instance to prove that they have been in the possession of the one from whom they were demanded, for as to such purpose they are pure hearsay.
Under plaintiff’s theory of the case it was necessary for her to establish the transfers, and since the real estate transfer must be in writing, and she alleged that all the transfers were in writing, it was necessary for her to prove the contents of the transfers after first proving the loss or destruction of the same, or the failure on the part of the one in possession to produce them. The statute requiring such real estate transfer to be in writing is clearly designed to avoid the assertion of claims which, from their nature, should be evidenced by an instrument in writing, signed by the party against whom such claim of title is asserted, or by his duly authorized agent. To require anything less would be to encourage evil practices which the statute of frauds was intended to prevent. This court, in the case of St. Martin State Bank v. Steffes, 88 Mont. 85, 88, 290 Pac. 259, has said that the evidence of the former existence, execution, delivery, loss and contents of a lost instrument should be clear and convincing. In the instant ease there is a total failure of proof of such facts. Plaintiff finds herself in the position of a litigant who has made a claim which she has been unable to support by competent evidence.
In order to show that she has been damaged, the burden was upon plaintiff to establish the allegations of her com plaint, i. e., the actual execution of transfers of property by written instrument, and their delivery to Poore for plaintiff. It is, of course, universally held that constructive delivery of instruments can be made by giving them to a third person with instructions to turn them over to the transferee on the transferer’s death or on some other happening; but it is as universally held that there is a valid delivery only if the deposit is irrevocable and the documents thereby placed entirely out of the transferer’s power. (Springhorn v. Springer, 75 Mont. 294, 243 Pac. 803.) Mrs. Baxter’s alleged declarations that “Mr. Poore has ‘the papers,” and that “they were in Mr. Poore’s possession,” are entirely insufficient to show a delivery by which the deed and assignments were placed out of her power. Thus her declarations, if admissible, were insufficient to show the execution and delivery of the documents.
But the evidence is insufficient for still another reason. Neither Mrs. Baxter’s declarations nor the other evidence furnishes any proof of the actual contents of the alleged documents, but expresses only her conclusion as to their effect. Not only is there an utter lack of evidence of the contents of any of the documents, but the personal property allegedly transferred is not even identified. There is no possible description or identification of the particular stock certificates or bonds allegedly transferred, or even of the numbers of shares or certificates of stock or of the numbers, denominations or face value of bonds, nor even any indication of their value except Mrs. Baxter’s alleged estimate of $200,000 as their value on May 5, 1930, eight and one-half months before Mrs. Baxter’s death on February 23, 1931, and three years and five months before the distribution of the Hamilton Estate on October 17, 1933. According to the complaint, the documents were supposed to have been delivered by Poore “when the Estate of the said James Hamilton was closed * * * or upon the death of the said Elizabeth D. Baxter.” It would normally be considered from that allegation that they might become deliverable upon the happening of either contingency; but the reason given by Mrs. Wilson for the delay was that the Hamilton Estate first had to be closed, so that they did not in any event become deliverable until October 17, 1933. In the light of the disastrous and unequal drop in the value of stocks and bonds between May 5, 1930, and October 17, 1933, how could such evidence possibly furnish a basis for the computation of damages for the alleged loss of ündescribed property worth $200,000 on the first date, but not deliverable until the second? This instance clearly demonstrates the reason for the requirement that the contents of the transfers be shown. Certainly as to at least two-thirds of the subject of the action not even the property allegedly transferred is identified, and as to the remainder, the real estate, only its identity is stated, which is manifestly insufficient to prove the contents of any of the documents.
It should here be noted that in any event no possible cause of action can be considered made out with reference to the personal property claimed, since the statute, section 10531, subdivision 4, makes admissible declarations of a deceased person only “against his interest in respect to his real property.”
In a well-reasoned case in which the same principle was involved, this court, after reviewing applicable statutes, said this:
“It is apparent from these provisions that, in order to establish the former existence of this instrument in writing, appellants were compelled to prove its execution and contents. The rights of the parties in this controversy rested upon this written instrument, and could only be settled by the application of its terms to the questions in controversy. Its terms could not be so applied until its contents were established. The word ‘contents,’ used in this statute, evidently includes all the substantial parts of the lost instrument, and therefore proof of such contents requires a practical reproduction of the instrument in all of its substantial parts.
“The law is well settled that proof of the negotiations and conversations and acts of the parties before, at the time of, and after the execution of a written instrument are not competent to prove its contents, where the instrument is lost. [Cases cited.] The greater part of the record is composed of this class of testimony, and under the above authorities cannot be considered.” (Capell v. Fagan, 30 Mont. 507, 512, 77 Pac. 55, 56, 2 Ann. Cas. 37.)
The rule announced in the Capell Case has not been departed from by this court, although in a later case (Nelson v. Gough, 61 Mont. 301, 202 Pac. 196), the court held that it was a sufficient showing of the contents of a document if an intelligent witness has read the document and can state substantially its contents and import with reasonable accuracy. Applying these rules, the plaintiff has made no showing whatever of the contents of the written transfers for loss of which she seeks to recover. No witness was produced who claimed to have seen these transfers or have any knowledge of their contents, and plaintiff makes no claim of having seen them. She rests her case on the fact that Mrs. Baxter told her that such transfers had been made and that Mr. Poore had possession of them. Plaintiff testified that she was told by Mr. Poore on one occasion when she asked about the property Mrs. Baxter had given her, that she could do anything she wished with the Butte Hotel property, but such a statement, if made, cannot constitute any evidence of the execution, delivery or contents of a written transfer.
But even if Mrs. Baxter’s alleged hearsay declarations were relevant as tending to establish plaintiff’s case, they would be inadmissible. The evidence, consisting as it does, of declarations of a person since deceased, is patently hearsay, and unless it comes within one of the recognized exceptions, must be excluded.
Section 10506, Revised Codes, reads as follows: “A witness can testify to those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible.” These exceptions to the hearsay rule may be grouped as follows:
1. Declarations of predecessor in title.
2. Declarations of decedent against his pecuniary interest.
3. Bes gestae,
The exceptions are embodied in onr Code in sections 10510, 10511, 10514 and 10531, subsection 4. Under the first section, the declarations of Mrs. Baxter could not be admissible, because the section only applies to a declaration made by a person while holding title to real estate, and such evidence would be binding only against the grantee, which in this case would be the plaintiff. The evidence, assuming it to be competent for that purpose, shows the declarant had parted with title at the time the statement was made; so it could not have application. (Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 Pac. (2d) 206, and eases cited therein.)
Section 10511, covering the doctrine of res gestae, can have no application to the facts here. The statements made, and each of them, which tend to prove the transfer of property, are simply narratives of past transactions. The deed had been executed and the stocks assigned, and all placed with Mr. Poore for delivery to the plaintiff, under plaintiff’s theory of the ease, at the time the declarations are alleged to have been made. Such declarations, from all that appears, are not connected with the execution or delivery of the instruments conveying title, and form no part of the same. They do not constitute the transaction, do not serve to illustrate its character, and they were not contemporaneous with it. They have no connection with the actual transfer. The transfer, if made, is just as valid and enforceable without the declarations as with them. There is no showing that they were made while the speaker was laboring under excitement and before she had time to reflect or otherwise come within the rule enunciated by this court. (Callahan v. Chicago, B. & Q. Ry. Co., 47 Mont. 401, 133 Pac. 687, 47 L. R. A. (n. s.) 587; State v. Broadwater, 75 Mont. 350, 243 Pac. 587; Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254, 29 Pac. (2d) 1045.) No ease has been called to our attention which permits the mere narrative of a past transaction, closed and completed, with no showing of special circumstances connected with such statement, or any direct connection with the transaction, to be competent evidence for any purpose except as it may be used against the person making the statement.
In Nichols on Applied Evidence, we find this definition of “Bes gestae-. “Bes gestae consists in a spontaneous statement of a present condition or fact accompanying an act to such an extent as to actually become a part of the transaction itself. Bes gestae are events speaking for themselves through the instinctive words and acts of participants, and not the words and acts of participants when narrating the events.’’ (1 Nichols on Applied Evidence, 384.)
From their very nature, the declarations relied on here could be nothing more than a narrative of a past transaction, which in nowise elucidates or explains the principal transaction. Plaintiff in her reply brief gives a quotation from 10 Ruling Case Law, 978. Included in the general statement of the rule by the editor is found this statement: “A declaration, however, which is merely a narrative of a past occurrence, though made ever so soon after the occurrence, is not part of the res gestae and cannot be received in evidence. * * * Declarations which are the result of an after-thought on the part of the declarant, made concerning a past event, are only hearsay and not competent evidence to prove the facts of such event.”
To make section 10514 applicable, it would be necessary to show that the declaration was against the pecuniary interest of Mrs. Baxter, and, if so, it would be admissible, to that extent, against her successor in interest, who would be the plaintiff, if her theory of the case is correct. Clearly, this section does not apply.
Under section 10531, subsection 4, the act or declaration of a deceased person, done or made against his interest in respect to his real property, is made admissible. Here, if we accept plaintiff’s interpretation of the declarations as showing execution and constructive delivery of the deed to Mr. Poore for the Wilsons, Mrs. Baxter had no real property at the time the declaration was made, because the title had passed by her deed. (Sec. 6845, Rev. Codes; Plymale v. Keene, 76 Mont. 403, 410, 247 Pac. 554.) It could not be against interest because by virtue of the supposed conveyance referred to she had no interest left in the same, and the declaration could not be in respect to her real property because once the title passed from her she no longer had any interest in the property which is the subject of the declaration. (Taylor v. Bunnell, 77 Cal. App. 525, 247 Pac. 240.) It must be kept in mind that plaintiff here seeks to have the declaration of Mrs. Baxter held to be against the three defendants, who not only have no interest in the property but claim none. Plaintiff never attempted to claim the property from the estate, or before distribution of the estate, although she consulted several lawyers in reference to her rights, one as early as 1931, when the estate was being probated. Wigmore in his work on Evidence (3 Wigmore on Evidence, 2d ed., sec. 1459 (3), states that in order to make the declarations admissible “there must have been an interest at the time to say the contrary”; and if she had no further title in the property when she made the statement, she had then no more “interest to say the contrary” than if she had never owned it.
In 1 Jones on Evidence, fourth edition, it is stated (secs. 238 and 241), that declarations made after the declarant ceased to have any interest in the matter are not admissions against interest, but mere hearsay. The rule has been expressed in Montana in the case of Dick v. King, 80 Mont. 40, 257 Pac. 1022, 1024, as follows: “The general rule is that declarations of a former owner of property made subsequent to his parting with his interest in the property are inadmissible, but this rule is subject to an exception in the case of conveyances shown to have been made with the purpose of defrauding the vendor’s creditors. ’ ’
The principle is stated in 3 Wigmore on Evidence, second edition, section 1459 (3), as follows: “In statements offered under the present exception to the hearsay rule, the declarant must be deceased. Moreover, there must have been an interest at the time to say the contrary, but the statements may be used in any controversy, without regard to the parties concerned.”
The statement includes three elements: (1) The declarant must be dead (which is true in this case) ; (2) there must have been an interest at the time to say the contrary (which is not true in this case if the declaration is true); (3) the declarations are admissible in any controversy and against any party, whether a successor in interest or not.
Whether the text-writer’s unsupported third conclusion, that the statements may be used in any controversy without regard to the parties concerned, is true in this jurisdiction, if true elsewhere, has not yet been decided by our court. In Laundreville v. Mero, 86 Mont. 43, 281 Pac. 749, 69 A. L. R. 416, it was held good as against heirs and therefore successors in interest of the declarant. On the other hand, the rule, as summarized in 1 Jones on Evidence, fourth edition, sections 241, 245, and supported by citations, is only that “the declarations of the grantor against his title, while in possession of the premises, are admissible, not only against him, but against those who claim under him.” Our search of the authorities convinces us that the rule properly goes no further than as stated by the last text-writer.
If there were any question as to the rule in Montana it would be concluded by Code sections 10509 to 10514, inclusive, which are in pari materia with section 10531 and therefore limit its application. Section 10509 provides: “The rights of a party cannot be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one cannot affect another.” Sections 10510 to 10514 then proceed to define the “particular relations” between the declarant and the party which make the declarations admissible. As noted above, sections 10510 and 10514, the only two of the sections which could possibly apply here, specify that the “particular relation” necessary is that the party against whom the declarations are offered must be the successor in interest of the declarant. Thus the declarations of Mrs. Baxter were inadmissible here under our statutory provisions, both because they were not against her interest when made and because the defendants were not Mrs. Baxter’s successors in interest.
In the instant case, before plaintiff could make out a case for the jury, it was necessary for her to show there was an actual transfer of the property to her. Otherwise there was no damage. As above stated, there is no competent evidence in the record from which a transfer can be shown. The objection to the testimony on this point was well taken and the trial court evidently disregarded such evidence when it ruled on the motion for a directed verdict. In any event it was incompetent for any purpose, and it would have been an abuse of a sound legal discretion to admit or consider it.
It is unnecessary to discuss the other matters presented for our consideration, in view of our holding above.
The judgment of the district court is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris and Arnold concur.
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] |
PER CURIAM.
After due consideration petition of rela-. tor for writ of supervisory control prayed for is denied.
|
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In a proceeding brought by the attorney general for that purpose, the district court entered a decree declaring forfeited a ferry franchise which the county commissioners of Valley county had some time granted to the defendant. Defendant moved for a new trial, which being denied he appealed to this court.
1. The first, and a difficult, question is whether the complaint states facts sufficient to constitute a cause of action.
Counsel for defendant insist that the action is a proceeding in the nature of quo wwrcwito under our statute and therefore is an action at law, while those for plaintiff take the position that the action is in equity, saying the complaint is “a bill in equity in the nature of quo warranto,” and, further: “The action may be justified upon the theory that the acts of the defendant alleged in the complaint constitute a public nuisance”; and finally they say: “Even considered as a statutory action in quo wwrranto, the facts alleged are sufficient to state a cause of action.”
The complaint, after appropriate allegations as to the po litical capacities of Valley and G-arfield counties and the character of the Missouri River running between these counties, sets forth the fact that the county commissioners of Valley county granted to defendant a franchise for the term of ten years to keep and operate a public ferry across the river; that acting under the franchise and pursuant to the provisions of sections 1457 to 1473, inclusive, of the Revised Codes of 1907 (sees. 1766-1782, Rev. Codes 1921), the defendant placed a ferry-boat upon the river, and “thereafter began the operation of the same by taking and transporting passengers across the said Missouri River for hire, and ever since has continued to operate a ferry-boat intermittently upon said river at and in the vicinity of said Lismas until on or about the sixteenth day of June, 1921, when defendant’s ferry-boat was swamped in said river, as hereinafter set forth”; that it was the duty of the defendant to keep, maintain and operate a good and sufficient ferry-boat upon the river and to keep the boat in good and suitable repair for the purpose of transporting and carrying all passengers, teams and vehicles desiring to cross the river at that point; and it was further the duty of the defendant to make trips with the ferry-boat to accommodate all passengers who desired to cross the river there; that the defendant failed and neglected to comply with the conditions and provisions of the franchise and the laws of this state governing the maintenance and operation of ferry-boats in the following respects: That during all of the times mentioned the defen'dant failed to erect and maintain a ferry-boat suitable for the purposes set forth above; that the ferry-boat built, constructed and maintained by the defendant was improperly constructed, improperly maintained and unsafe for the purpose for which operated; that the boat was constructed of inferior material, in an inferior manner, was too lightly and weakly constructed to stand the necessary strain to which it must necessarily be subjected in carrying and transporting passengers, commodities, teams and vehicles across the river, and the boat was dangerous, unsafe and a menace to the public; that the defendant has wholly failed, neglected and refused to make trips to accommodate all passengers who desired to cross the river at that point, a number of particular instances in support of the predicate allegation being set forth; and that the defendant “has wholly failed and neglected and refused to make trips ■with said ferry-boat to accommodate passengers who desire to cross said Missouri River at said point oh numerous and various occasions, the details of which are not now within the knowledge of your relator.” The plaintiff then sets forth a recitation of different periods of time in which no ferry-boat at all was operated by defendant, following with the allegation that on or about June 16, 1921, the boat sprang a leak, sank in the river, and is still out of repair, and since that date the defendant has wholly failed to render any ferry service. The last allegation is that because of the defective material of which, and the defective manner in which, the boat was constructed, said boat is dangerous and unsafe and a menace to public safety and property, and because of the defects in the material and construction and of the careless and negligent manner in which the boat was operated by the defendant, the same constitutes a public nuisance.
The complaint was filed July 5, 1921. A general demurrer to the complaint was overruled. The defendant’s answer con sists mainly of general denials with the affirmative allegation that the ferry-boat was at all times operated by defendant “during such seasons of the year as the said river was open for the operation of said boat thereon, except when prevented from so doing by the act of God or unavoidable accident.” This affirmative allegation was denied by plaintiff.
The action, if maintainable under the facts alleged in the complaint, is a proceeding in the nature of quo warranto under our statute. By the provisions of section 9576, Revised Coden of 1921, a civil action may be brought in the name of the state against a person who usurps, intrudes into or unlawfully holds or exercises a franchise. The attorney general may bring the action. (Secs. 9578, 9579, Rev. Codes 1921.) The pleadings shall be as in other cases. (See. 9587, Rev. Codes 1921.) When a defendant is found guilty of usurping or unlawfully exercising a franchise, judgment shall be rendered and he be ousted and altogether excluded therefrom, and, that relator recover his costs. (Sec. 9588, Rev. Codes 1921.)
Sections 9576 to 9601, Revised Codes of 1921, inclusive, came into our laws as a part of the Code of Civil Procedure of 1895. Prior to that provision was made for an “action for usurpation” by sections 242 to 247, inclusive, of the Bannack Laws, pages 93, 94, and these became sections 310 to 316 of the Laws of 1867, pages 197, 198, and continued in force until the 1895 Code was adopted. Section 310 provided: “An action may be brought by the district attorney in the name of the people in this territory upon his own information or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds, or exercises any public office, civil of military, or any franchise within his district, in the territory.” In Territory v. Virginia Road Co., 2 Mont. 96, the court said: ‘ ‘ This statute, to all intents and purposes, is but a re-enactment of the common law upon the same subject.” In that case the action was brought by the district attorney on behalf of the people for the purpose of declaring a forfeiture of the defendant corporation’s charter. It was alleged that the defendant had usurped the franchise it claimed, that of maintaining a wagon road, and it was charged that during the latter months of 1866 and the earlier months of 1867 the defendant had negligently failed to improve, complete and maintain the road or to keep the same in repair, but had negligently permitted the road to fall into such a state that it was rendered dangerous and inconvenient to travelers passing over the same. Mr. Chief Justice Wade said: “The simple question to be tried and determined is, whether or not the corporation, by their acts of misuser or nonuser, have forfeited their rights, franchises and privileges. If they have, their corporate acts are usurpations upon the people, and this is the matter to be tried.” Further on he said: “Grants confirming franchises, rights and privileges are contracts between the sovereign power and private citizens upon certain implied or expressed conditions. A performance of these conditions by the citizens is the consideration of the contract, and vests the franchise, and a nonperformance of them forfeits it. These franchises, granted by the Legislature, are an exclusive monopoly, and never should be made for the private advantage of any person, but solely for the public good, and when. made, the conditions of the grant, whether implied or expressed, should be complied with like conditions precedent to any other contract. Precedent conditions, which must take place before the estate can vest, must be literally performed. (Thompson v. People, 23 Wend. (N. Y.) 537.) The condition precedent to the contract between this defendant and the people of the territory was, that the defendant should construct and keep in repair the Virginia City and Summit City wagon road. This condition should be substantially complied with, and a failure to comply in a material particular would subject the franchise to forfeiture.”
Chapter 138 of the Political Code, sections 1766 to 1782, inclusive, of the Revised Codes of 1921, have to do with the establishment and regulation of public ferries. By section 1766 authority to keep a ferry is granted by the county commissioners. Section 1770 provides that at the time of granting authority to keep a public ferry the board of commissioners must fix the amount of the penal bond to be given by the ferryman, fix the amount of license tax to be paid by him, fix the rate of tolls which may be collected for crossing the ferry, and make all necessary orders relative to the construction and business of ferries which they have power to make. Sections 1772 and 1773 read as follows:
1772. “The board of commissioners may make all needful rules and regulations for the government of ferries and ferry-keepers, prescribing:
“(1) How many boats must be kept, their character, and how propelled.
“ (2) The number of hands, boatmen, or ferrymen to be employed, and rules for their government.
“ (3) "When and under what circumstances to make trips in the night-time.
“(4) "Who may be ferried free of toll.
“(5) In what cases of danger or peril not to cross.
“(6) Penalties for violation of regulations.
“(7) In case of steamboats, the rate of speed.
“(8) The method of and preference in loading and crossing; and
“(9) How and by whom action must be brought to recover penalties.”
1773. “Subject to the foregoing regulations, ferrykeepers must make trips to accommodate all passengers who desire to cross, and any failure so to do subjects the franchise to forfeiture, by a proper proceeding for that purpose.”
By 1775 the commissioners are empowered to fix the amount of a bond to be required of the ferry-keeper “conditioned that 'the ferry will be kept in good repair and condition, and that the keeper will faithfully comply with the laws of the state and all legal orders of the board of commissioners regulating the same,” etc. It will be noted that the forfeiture provided by section 1773 is to be “by a proper proceeding for that purpose.” There is no specific declaration as to what the proceeding shall be, bnt in view of the statutes which have been in force since the early days of the territory and the decision of the supreme court of the territory relating thereto, the statutory proceeding in the nature of quo warranto, a sufficient remedy, evidently was in contemplation.
But counsel for defendant insist that the complaint does not state facts sufficient to constitute a cause of action because it does not refer to the violation of any specific law of the state. Under the caption, “What law does plaintiff refer to as being violated?” they call attention to the fact that it was the duty of the county commissioners at the time of granting the franchise to make rules and regulations governing the maintenance and operation of the ferry; and they say that when these rules and regulations have been fixed, these are the only “laws of the state of Montana that can be violated by a ferry-keeper; the ferry-keeper cannot violate any statutory provision of law in this state because there is none to violate.” Their contention is that while the board had the authority to make rules and regulations under the provisions of section 1772, it did not exercise that privilege except as to subdivision 4, which it specified who might be ferried free of toll, and so, they say, the failure of the commissioners to establish the rules and regulations mentioned in sections 1770 and 1772 left the court in a position where there was nothing that it could take as a standard or guide of comparison in determining whether or not the laws of the state had been violated.
Under section 1772 the commissioners are permitted to amplify the duties imposed upon a ferry-keeper beyond the provisions of 1773. In at least two particulars (see subdivisions 3 and 5 of section 1772) they may restrict somewhat the full scope of 1773; but in the absence of any regulatory rules it is clear that a ferry-keeper must comply with all the requirements of that section.
There is no such thing as a “bill in equity in the nature of quo warranto,” as counsel for plaintiff suggest. This is not an action to abate a nuisance.
Rejecting then, as we must, the theory of plaintiff that the action is in equity, and accepting that of defendant that it is in the nature of quo warranto under our statute, we hold that the complaint states a cause of action. Even in the absence of statutory provisions to that end, a ferryman must provide a good and secure boat, suitable and safe in all respects, to accommodate the usual traffic at his place of business, without unreasonable delay. (Richards v. Fuqua’s Admr., 28 Miss. 792, 64 Am. Dec. 121; Sanders v. Young, 1 Head (Tenn.), 219, 73 Am. Dec. 175.) “He must use due care in keeping his boats in good repair and running order and in a safe condition, free from anything likely to cause injury to passengers or their property.” (25 C. J. 1077.) The allegations of the complaint also bring the case within the provisions of section 1773, supra.
It will be remembered that long ago this court laid down the rule that “In determining whether the complaint states a cause of action or entitles plaintiff to any relief, matters of form are to be disregarded, as well as the allegations that are irrelevant and redundant; and if from any view the plaintiff is entitled to relief, the pleading will be sustained. (Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. (n. s.) 976, 93 Pac. 649.) ” (Decker v. Decker, 56 Mont. 338, 185 Pac. 168; Stiemke v. Jankovich, ante, p. 60, 217 Pac. 650.)
2. Defendant also contends that as he gave the bond required by the commissioners under the provisions of sections 1770 and 1775, a proper remedy was provided by suit upon that instrument. This position is not tenable. This is not an action to redress a private wrong, but is one by the attorney general to declare a forfeiture of defendant’s franchise under the statute. (See Territory v. Virginia Road Co., supra.)
3. Trial was to the court, the parties having waived a jury. Numerous assignments of error are based upon rulings of the court in admitting testimony. Some are well taken.
Over defendant’s objection, inquiry was permitted as to whether complaints were made to the commissioners be cause of lack of service at the ferry. The testimony should not have been permitted. The commissioners were not parties to the action in their official capacities or otherwise. Whether complaints were made to them individually or as a board was not a proper subject of inquiry under the issues which were being tried.
A witness who testified at length concerning poor service, and total lack of service, at the ferry, and who assumed to be. conversant with popular sentiment in the matter (popular sentiment respecting the same not being a proper subject of inquiry), was asked this question: “Have you heard any residents south of the river, in talking to you, or in your hearing, justify the ferry service as has been conducted by Frank Martin?” This was objected to upon the ground that it was “based on hearsay evidence, incompetent, irrelevant and immaterial.” The court overruled the objection, and the witness answered, “No, sir.” Citation of authorities is unnecessary to demonstrate the prejudicial error thus committed by the court.
One of the county commissioners was asked: “Were you in favor or objecting to the granting of this franchise?” Objection was made “on the ground that it is incompetent, irrelevant and immaterial in this case, the franchise has been granted and there is no foundation for it.” Further objection was made “for the reason that it is not within the times alleged in the pleadings in this case.” The court overruled the objection “for the purpose of showing the opinion of the witness as to the general fitness of Mr. Martin to run and operate a ferry.” The witness answered: “To the best of my ability I did not think Mr. Martin was the right person to grant that franchise to.” This was followed by the question, “Why?” Over defendant’s objection the witness said: “Why, Mr. Martin failed in everything else, everything else he tackled, and I didn’t think he was the right person; wanted to get a good live man there to attend to business and serve the public.”
As to whether the franchise should have been granted by the commissioners to the defendant was not a proper subject of inquiry at the trial. When the board granted the franchise, it determined, impliedly at least, that the defendant was a fit person to receive that privilege. The personal opinion of the witness was immaterial and his testimony on the subject was incompetent. It will be observed, too, that the answer given by the witness had a strong tendency to put the defendant in anything but a favorable light before the court. The error is manifest.
Over objection of the defendant, a map purporting to de lineate the proper construction of a ferry-boat was admitted in evidence “for the purpose of illustrating the testimony of this witness,” referring to the witness then on the stand. The map was not made by the witness, nor was it shown to be a correct delineation either of the defendant’s boat or of a properly constructed ferry-boat. The person who prepared the map did not testify, nor was it shown that he was possessed of any knowledge either theoretical or practical on the subject under inquiry. The witness on the stand had never worked upon, constructed or operated a ferry-boat, and did not pretend that he was possessed of any expert knowledge on the subject of building or operating ferry-boats. Therefore he was not qualified to express an opinion respecting the same. (See. 10531, subd. 9,. Rev. Codes 1921; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904; Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 113 Pac. 467; 11 R. C. L. 574.) Yet over objection he was permitted to point out at length what he assumed were serious structural weaknesses in defendant’s boat; he was allowed to give opinions which he was not qualified to express and to use the map in illustrating his testimony. The map should not have been admitted. The court's action in admitting it even for illustrative purposes was not justified by anything that is said in Carman v. Montana Cent. Ry. Co., 32 Mont. 137, 79 Pac. 690, or Drew v. City of Butte, 44 Mont. 124, 119 Pac. 279.
Plaintiff attempts to sustain the judgment upon the theory that “The admission of incompetent evidence in an equity case is not reversible error, it being assumed that the court considered competent evidence, excepting where it clearly appears from the record that the court considered incompetent evidence, or where the record — containing all the evidence — does not disclose sufficient competent evidence to support the findings, ’ ’ citing King v. Pony Gold Min. Co., 28 Mont. 74, 72 Pac. 309, and other cases. But this is not an equity ease. However, it. is undoubtedly the rule that where a cause at law is tried to the court sitting without a jury, the mere admission of incompetent evidence will not bring about a reversal; but to sustain the judgment in such case on appeal it must be reasonably apparent that the court was not influenced to the appellant’s prejudice by the erroneously admitted testimony. We have in mind the provisions of section 9191, Revised Codes of 1921, that “the court must, in every stage of an action disregard any error or defect * * * which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect,” and of section 9751 that “no cause shall be reversed upon appeal by reason of any error committed by the trial court against the appellant, where the record shows that the same result would have been attained had such trial court not committed an error or errors against the respondent. ’ ’ But in the instant case we cannot say from an examination of the court’s findings that it is reasonably apparent that the court was not influenced by the erroneously admitted testimony to the defendant’s prejudice; and so it would be were the case in equity. The correct rule on this subject as respects cases in equity was stated by Mr. Chief Justice Brantly in Anaconda Copper Min. Co. v. Heinze, 27 Mont. 161, 69 Pac. 909, where it is said: “There is no doubt that this case [Montana Ore Pur. Co. v. Butte & Boston C. M. Co., 25 Mont. 427, 65 Pac. 420] states the general rule observed by this court in equity cases where it is reasonably apparent that the error committed in the admission or exclusion of the evidence has wrought no prejudice in the result. This rule, however, has no application where the error complained of is fundamental, and it is not reasonably apparent that it did not result in prejudice. If the evidence admitted or excluded is trifling, or unimportant, as compared with the competent evidence admitted and considered, and if its exclusion or admission could not have affected the result reached, the judgment or order appealed from will not be reversed on the ground of error in admitting or excluding it. Where, however, the evidence in question is of import, and by the ruling of the court thereon it is made reasonably apparent that it was so regarded by the court, and for that, reason probably affected the result reached, the judgment or order based upon it cannot be sustained. The statement made in the case cited is not properly guarded, but it must be interpreted in the light of the conditions there presented. So interpreted, it is apparent that this court did not intend to lay down the broad declaration that a judgment or order made in an equity case will never be reversed upon appeal on the ground that the trial court has erred in admitting and excluding evidence. The intention was to follow, and not overturn, the rule correctly stated in Merchants’ Nat. Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851, which was cited in support of. the view entertained of the evidence under consideration. In that case the evidence admitted was of doubtful relevancy and materiality. It was also trifling and unimportant, and could not have affected the result.” (See Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; Rumping v. Rumping, 41 Mont. 33, 108 Pac. 10.)
In the instant case it cannot be said that the erroneously admitted testimony is trifling or unimportant; on the contrary, it is of import, and we cannot say the court did not so regard it or that it probably did not affect the result reached; a portion of it went to the very matter covered by the court in its findings. The rule that the- appellate court will presume that the trial court did not consider incompetent testimony applies when there is nothing substantial in the record to indicate the contrary.
It has been a matter of common observation by the profession that rules of evidence have been regarded very lightly in the trial of equity cases. A growing tendency has been 1o “throw down the bars and let everything in.” This is a tendency which should be restrained; this practice should be restricted rather than extended. The law contemplates that a fair and impartial trial shall be had upon competent evidence. Further discussion of the subject will not be useful; the error in the present case is palpable and prejudicial.
4. Defendant also complains because testimony offered by him was excluded. "We do not find any merit in those assignments.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Associate Justices Cooper, Holloway, Galen and Stark concur.
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] |
MR. CHIEF COMMISSIONER FELT
prepared the opinion for the court.
This action was brought by the plaintiff to recover an assessment levied to pay the costs of improvements within a rural improvement district, paid under protest. A general demurrer to the complaint was sustained. The plaintiff elected to stand upon his original complaint and judgment was entered against him. He appeals from this judgment.
The complaint alleges that he is the receiver of the First National Bank of Billings, Montana, a national banking association organized and existing under and by virtue of the laws of the United States, and during all of the .times mentioned in the complaint is and was a mandatory of the government of the United States; that on or about the twenty-first day of February, 1920, as such receiver he became the owner of certain real property within Yellowstone county, Montana, which property is described in the complaint; that on the twenty-ninth day of August, 1921, the board of county commissioners of said county adopted a resolution wherein a special assessment was levied against all of the aforesaid property for the purpose of defraying the expenses of improvements constructed in rural improvement district, designated No. 10, of said county of Yellowstone; that at no time between the fifth day of March, 1921, and the twenty-ninth day of August, 1921, had any act been performed to create said special improvement district No. 10; that the amount levied against said property was the proportion of the whole cost as the area of the said property bore to the entire area of the district and was divided into a series of payments payable each year; that the levy for the year 1921 amounted to the sum of $1,128.87, which sum was paid under protest to prevent the treasurer of said county from imposing the statutory penalty for delinquent taxes and from selling said property to satisfy the same.
The complaint does not disclose when the various steps were taken required by the statute for the creation of the special improvement district in question. There is no suggestion that the district was not regularly created. Since it is alleged that no act was done between March 5, 1921, and August 29, 1921, we may assume that all of the acts necessary to create the district and make the improvement for which the assessment was made were performed prior to March 5, 1921. It is presumed that official duty has been regularly performed. (Sec. 10606, Rev. Codes 1921.) We may also infer that the district was organized under Chapter 156 of the Acts of the Fifteenth Legislative Assembly, as amended by Chapter 67 of the Sixteenth Legislative Assembly, since those Acts were in force and effect prior to March 5, 1921, but were repealed on that date and a similar law enacted in their stead. (Laws 1921, Chap. 147.)
Two questions are raised by the appeal for our consideration: May real property within a special improvement district, belonging to a national banking association, be impressed with a lien for' the cost of improvements in such district, to the same extent as other property within such district? May the board of county commissioners make a special improvement district levy for the cost of improvements, after the Act has been repealed under which the district was created and the improvements made, there being no saving clause in the Act repealing? We will consider these questions as fully as we can under the facts directly alleged or which may be reasonably inferred from the complaint.
It is contended on behalf of the plaintiff that the first question must be answered in the negative. This question appears to be one of first impression. No contention is made that the situation is altered by reason of the fact that the bank to which the property belongs is in the hands of a receiver. The plaintiff cites Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832 [see, also, Rose’s U. S. Notes]. This case holds that property and assets in the hands of the receiver of a national bank in legal contemplation still belong to the bank. “The bank did not cease to exist on the appointment of the receiver.”
Section 12 of tbe Act under which the district was created is as follows: “"Whenever any lot, piece or parcel of land belonging to the United States or mandatory of the government, shall front upon the proposed work or improvement, or to be included within the district declared by the board of county commissioners in its resolution of intention to be a district to be assessed to pay the cost and expenses thereof, the said board of county commissioners shall in the resolution of intention declare that said lots, pieces or parcels of land or any of them, shall be omitted from the assessment thereto to be made to cover the cost and expenses of said work or improvement and the cost of said work or improvement in front of said lots, pieces or parcels of land shall be paid by the county from its general fund.”
It is contended that a national banking association is a mandatory of the government and therefore exempt from assessment for the cost of the improvement. The exemption must exist at the time of the adoption of the resolution of intention to create the district. A mandatory of the government which may perchance acquire property within an improvement district after the resolution of intention cannot claim the exemption provided for in the statute. The property of a government instrumentality, such as a postoffice or government agricultural experiment station, may be exempt from assessment, as was held to be the case in Ford v. Drake, 46 Mont. 314, 127 Pac. 1019. It is not necessary in this case for us to say when the government must acquire its property, with reference to the time of creating the district, in order to be entitled to the exemption, recognized in that case. But, unless the conditions of the statute are complied with, the exemption, if any, must be based upon other grounds. If the statute creates any exemption from assessment, it can only be by virtue of full compliance with all of its conditions. Since the plaintiff does not allege that the property in question was excluded from liability for the levy in the resolution of intention, or that he acquired the property prior to the time it was passed by the board, and should therefore have been exempted therein, he has not stated sufficient facts to entitle him to the exemption, even though it be granted that a national bank was intended to be included as a mandatory of the government.
It has been held by this court that the owner of property within a special improvement district cannot sit by and see improvements made benefiting his property and increasing its value, and then, .after such improvements are made, refuse to pay for the same. (Power v. City of Helena, 43 Mont. 336, 36 L. R. A. (n. s.) 39, 116 Pac. 415.) The complaint, as we stated before, does not disclose when the improvements were made. If he acquired his property prior to the making of the improvements, he is liable for the cost for the reasons stated in the Power Case. If he acquired his property after the improvements were made, he could not free it from liability to bear its proper part of the cost, even though he be a mandatory of the government. This is true, in spite of the provision in the law that a specific lien does not attach to the land until after the assessment is made. The liability for the lien is there as soon as the improvement is made. (Dougherty v. Miller, 36 Cal. 83.)
In construing a statute the courts must look to the language employed and the object which is sought to be obtained by the law. (Johnson v. Butte & Superior Cop. Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1057; State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94.) The term “mandatory of the government” is a new one in legal phrase ology. So far as we are aware it has not been judicially defined. “Mandatory” (usually spelled mandatary) is defined as follows: “One to whom a mandate is given.” (Webster’s New Int. Diet.) “One to whom a command or charge is given; one who has received and holds a mandate to act for another; an attorney.” (Century Diet.) “One who undertakes, without compensation, to do service for another with regard to property placed in his hands by the other.” (Funk & Wagnall’s Stand. Diet.) In 2 Kent’s Commentaries, 569, the word is used with the latter meaning: “One to whom a charge or command is given; a person who has gratuitously undertaken to perform certain duties.” (26 Cyc. 514.)
It cannot be said that a national banking association holds a mandate from the government. We are aware that the supreme court of the United States has said that national banks are designed to be used to aid the government in the administration of an important branch of the public service. (Farmers’ Nat. Bank v. Bearing, 91 U. S. 29, 23 L. Ed. 196 [see, also, Rose’s U. S. Notes].) But it cannot be said that in any real sense they act under the charge or command of the government, or1 act for the government. They do not have in their hands any government property.
Based solely upon the ordinary meaning of the language employed, our opinion is that the exemption provided for in the section quoted was intended to apply to federal agricultural experiment stations, military reservations, postoffices, etc. These render a service to the local community which is gratuitous, so far as the local authorities are concerned. Thus when the county bears the cost of the improvement that would otherwise fall upon the property of the government, the local people receive something in return for the exemption. The same reasons underlie the exemption from general taxation conferred upon educational, religious and charitable institutions.
No reason is suggested why the legislative body of this state should desire to make an exemption in favor of national banks. There is no similar exemption in favor of state banks or other corporations. Even public schools are liable for special improvement assessments, although not subject to general taxation. (City of Kalispell v. School Dist. No. 5, 45 Mont. 221, Ann. Cas. 1913D, 1101, 122 Pac. 742.) One of the reasons assigned in that ease for holding the property of the school district liable for the assessment was that the improvement, for which the assessment was made, had presumptively added at least an equal amount to the value of the property. That is the theory underlying all special improvement district legislation. A pertinent question was asked by Mr. Justice Brewer in Illinois Cent. R. R. v. Decatur, 147 U. S. 190, 37 L. Ed. 132, 13 Sup. Ct. Rep. 293 [see, also, Rose’s U. S. Notes]: “As special assessments proceed upon the theory that the property charged therewith is enhanced in value by the improvement, the enhancement of value being the consideration for the charge, upon what principles of justice can one tract within the area of the property enhanced in value be released from sharing in the expense of such improvement?” We add another question: Why should the property of a national bank be enhanced in value by an improvement, and the cost of this improvement paid out of the general fund of the county? We are convinced that the legislature never intended to bestow any such gratuity upon a corporation whose capital stock is owned exclusively by private persons, and which corporation is organized primarily for their private gain.
There is one further reason which convinces us that a national banking association could not have been contemplated as a mandatory of the government and entitled to the exemption provided for in the section quoted. The power of such an association to hold real estate is very limited., Aside from the property necessary for its immediate accommodation in the transaction of its business, it can only acquire real estate in satisfaction of debts previously contracted in the course of its dealings. With the exception of its business property, it can hold real estate so acquired for a period not exceeding five years. These restrictions are provided by the national Banking Act. (Sec. 5137, Fed. Stats. Ann. [U. S. Comp. Stats., sec. 9674].)
By the provision of the Act under which the special improvement district was organized, the assessments may be spread over a period of ten years. It is inconceivable that there was any intention to exempt certain property for a part of the time for which the assessments are made. Would the county assume the burden for the entire ten years’ period, or only for the time that the bank could lawfully own the property? If the bank should sell the property before the expiration of the time it might lawfully, own the property, would the purchaser become liable immediately for the assessments, or would he acquire the property free from all liability to pay assessments? It will not be necessary for us to answer these questions for the reason that we are convinced no exemption was intended. As was said by Mr. Justice Holloway in City of Kalispell v. School Dist. No. 5, supra: “The burden is upon the party claiming an exemption to show an exception in his favor written in the law in express terms, or clearly implied from the language employed.” The plaintiff has not shown any such exception in this ease. If his property is not subject to the assessment, it is because the state has no power to make it so. There is no exception in its favor contained in the state law.
It is next contended that an assessment of the property of a national bank is prohibited by the federal law. It is argued that the silence of Congress upon the matter constitutes a prohibition. The above quotation from the opinion of Mr. Justice Holloway, which is supported by the decisions of various courts, among them New Orleans v. Warner, 175 U. S. 120, 44 L. Ed. 96, 20 Sup. Ct. Rep. 44 [see, also, Rose’s U. S. Notes], answers this argument. Liability for special assess ment is the rule. An exemption in favor of any property must be clearly expressed or implied from the language used.
The dictum of the circuit judge in First National Bank of Richmond v. City of Richmond (C. C.), 39 Fed. 309, which is cited in the brief of counsel for plaintiff, had reference to general taxes. It is not authority for the argument of counsel with reference to special assessments.
Section 5219, Fed. Stats. Ann., provides that “Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes, to the same extent, according to its value, as other real property is taxed.” (U. S. Comp. Stats., sec. 9784.) It is argued that the assessment in this ease being computed upon an area basis is invalid, because not based upon value. This argument must be based upon the premise that special assessments are taxes. This court, in City of Kalispell v. School Dist. No. 5, supra, has held that they are not taxes. The same conclusion was reached by the supreme court of the United States in Illinois Gent. R. R. Co. v. Decatur, supra. In that case it was held that the railroad company was liable for special assessments for street improvements, although its charter gave it exemption from general taxes for state, county and municipal purposes. The same distinction is recognized in New Orleans v. TFarner, supra. These decisions are all based upon the proposition that the property is enhanced in value equal to or more than the amount of the assessment. The holder of the property is therefore made no poorer by reason of the assessment.
In the case of Mercantile National Bank v. New York, 121 U. S. 138, 30 L. Ed. 895, 7 Sup. Ct. Rep. 826 [see, also, Rose’s U. S. Notes], it is said: “The main purpose, therefore, of Congress, in fixing the limits to state taxation on investments in the shares of national banks, was to render it impossible for the state, in levying such a tax, to create or foster an unequal and unfriendly competition, by favoring institutions or individuals carrying on a similar business and operations and investments of: a like character. The language of the Act of Congress is to be read in the light of this policy.” Many other decisions of the supreme court of the United States are cited to the same effect in the opinion of Mr. Chief Justice Callaway in the recent case of First Nat. Bank of Glendive v. Dawson County, 66 Mont. 321, 213 Pac. 1097.
It certainly was not the intention of Congress to make the property of national banks exempt from assessment for special improvements. To do so would prevent the public improvement of roads and streets upon which abut the property of national banks, unless the county or city pay that part of the cost which should properly be borne by the property of the bank. This would enhance the value of its property at the expense of the tax-paying public. An intention to create such an unjust discrimination in favor of national banks can neither be found in the language employed by Congress nor the policy of the law as seen by the supreme court of the United States.
"We will now consider the second question raised by the appeal. Again we are obliged to rely upon inference by reason of the paucity of facts pleaded in the complaint. Since it is alleged that nothing was done since March 5, 1921, we may infer that everything was done to incur the cost of the improvement before the levy of the assessment to pay this cost was made. It is of no importance that the levy was made un< der the Act of March 5, 1921, although the district was created and the work done under an Act repealed at that time. The manner of levying the assessment is the same under each Act. It was not necessary for the board of county commissioners to refer to the Act which gave them authority. All that is required is that they be empowered by some law to levy the assessment and that they proceed in the prescribed manner in exercising the authority conferred. (Page & Jones on Taxa. tion by Assessment, sec. 775; Jones v. Aldermen of Boston, 104 Mass. 461.)
The board of county commissioners did not lose their authority to levy the assessment by the repeal of the Act under which the district was organized, and the improvements were made even though there was no saving clause. To hold otherwise would necessitate the adoption of one or the other of two impossible alternatives. Either the party who did the work and held the district warrants would not be paid, or he would have to be paid out of the funds of the county, city or other political subdivision. The first alternative would impair the obligations of a contract, and ivould be void under the provisions of section 10 of Article I of the Constitution of the United States and of section 11 of Article III of the Constitution of the state of Montana. The second alternative would throw the cost of an improvement which enhances the value of private property upon a political subdivision of tbe state. Tbis would be a mere gratuity and would be repugnant to section 1 of Article XIII of our state Constitution.
We recommend that tbe judgment be affirmed.
Per Curiam :
For tbe reasons given in tbe foregoing opinion, tbe judgment appealed from is affirmed.
Affirmed.
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
The complaint alleges that between July 22, 1920, and November 17, 1920, the plaintiff furnished plumbing, heating and furnace materials and performed labor upon property described therein of which the defendant was the reputed and record owner, of the reasonable value of $823.27, all of which she has failed and refused to pay; that within ninety days after furnishing the last item of the materials and doing the last piece of work, he filed with the clerk and recorder of Silver Bow county a verified notice and claim of lien, “containing a just and true account of the amount then due, after allowing all credits, and containing a correct description of the property to be charged with such lien.” The prayer is for judgment that the lien be foreclosed, the property sold and out of the proceeds of sale the lien be paid and discharged.
The answer admits that the defendant “is the owner of the real property at Nos. 10-12 East Gagnon Street” described; that the plaintiff in 1920 agreed to repair the furnace; that no payments have been made on the lien; and that some paper was filed in the office of the county clerk. Affirmatively, and by way of counterclaim, defendant alleges that she owns the property and that it is commonly known and designated as the “Gagnon House”; that in the summer of 1920 two sections of the furnace “needed some repairing”; that plaintiff agreed to repair it and to cause it to become serviceable; that the work required thereon was “principally welding certain parts”; that between the dates alleged in the, complaint “the plaintiff caused- some repair work to be done” on th$ furnace, but that it was done “so unskillfully, carelessly and negligently” that plaintiff caused one of the sections of the furnace to be broken, which made it leak so that it could not be used; that plaintiff refused to replace “the broken section” or to repair it, and in November, when he announced that he had finished the work, the “furnace leaked so badly that no fire could be kept in it”; that when plaintiff declined to do any further work on the furnace, “it was in much worse condition than when he began working on it”; that the “broken section and base were caused by the negligent and careless work of the plaintiff”; that she repeatedly made demand upon plaintiff to complete his agreement and repair the damage done by him, but that he refused to “make any repairs upon the portion of the furnace damaged by him” and refused to perform his part of the agreement; that in February, 1921, because thereof she was obliged to put in a new furnace at a cost of $1,200; that in order to place the premises in condition so that business could again be conducted therein, defendant was compelled to expend $1,200; that as a result of plaintiff’s failure, refusal and neglect to perform his contract the defendant was unable to keep the Gagnon House warm during the winter of 1920 until the - day of February, 1921, and by reason thereof all of her roomers and tenants left the Gagnon House, to her damage in the sum of $2,000. Her prayer is for $3,200 damages with interest at eight per cent per annum from February 15, 1921, and costs. The reply denied all the affirmative allegations of the answer.
The cause was tried without a jury, the court finding, in writing, that the defendant was the owner of the building known and designated as the Gagnon House, located at Nos. 10-12 East Gagnon Street in the city of Butte; that plaintiff performed the work and purchased the materials as he alleges, and improved the property; that the itemized statement of the plumbing, heating and furnace material and labor contains a just and true account of the amount due plaintiff from defendant therefor; that $823.27 is the reasonable value of the materials furnished and labor done, and that defendant agreed to pay the same, but has not paid any part thereof, although the plaintiff has demanded that she .pay the same; that within ninety days subsequent to the date of the last item of the account plaintiff duly tiled the bill and amount therefor and paid the legal fee of one dollar for recording the same; that the work was done in a careful and workmanlike manner; that defendant is not entitled to $1,200 or any other sum claimed by her; and that plaintiff is entitled to a judgment according to the prayer of his-complaint. From the judgment defendant appeals.
The allegation in the complaint that the defendant is the reputed and record owner of the “property,” and that the materials and labor entered into and upon “the improvement and maintenance of that certain building occupied as a dwelling and lodging house at 10-12 Gagnon Street,”'was met by this admission in the answer: “Admits that she is the owner of the real property at Nos. 10-12 East Gagnon Street.” The court found that the defendant was “the owner of the building known as the Gagnon House.”
In Midland C. & L. Co. v. Ferguson, 61 Mont. 402, 202 Pac. 389, this court held that the term “property” referred to the “building, structure, or other improvement, and not to the land”; that the lien claimant was not required to hire a surveyor to locate the land; that if the description of the building itself was “sufficient to enable a person familiar with the locality to point it out as the only one corresponding with the description contained in the lien,” it met all the requirements of the statute; and that if errors in the lien were eliminated and still left enough “to identify the particular property sought -to be charged the lien will be upheld.”
The fact -that the defendant owned the “Gagnon House” and lived in it is enough to show that she was familiar with its situation in reference to the surrounding property, and was not put to any disadvantage in defending the action. At least there is nothing in the record to indicate that she was.
Defendant’s counsel in his brief says: “Twenty-one dollars are claimed for connecting heating on the 16th of October. If this'item accrued and this work was done in October, 1919, then no lien could be claimed for it, because more than ninety days intervened between October, 1919, and July, 1920. If the work was done after October 6, 1920, then an account rendered on the sixth day of October cannot be a just and true account, because no one can anticipate what the correct amount will be unless there is an express Contract for that particular amount, and that is not claimed by the plaintiff. This item, in any event, must fail because the statement does not disclose when the work was done. It failed to mention the year during which the work was done.”
The headline of the account is “Butte, Mont., Oct. 6, ’20.” Underneath in the usual form of an account there are items of materials furnished and labor performed set opposite the following dates: “July 22, ’20; Aug. 11, ’20; Aug. 16, ’20; Aug. 24, ’20; Sept. 20, ’20; Oct. 16 (year not given) ; Nov. 17, ’20.” In the lien statement there is this paragraph: “That said work and labor was performed and said materials and fixtures were furnished between the dates of July 22, 1920, and ’November 17, 1920.” As we understand counsel’s point, it is simply that because no year is given after the item of October 16, plaintiff was not entitled to a lien “for what occurred after Oct. 6, 1920.” The evidence was that the work was done and the materials were furnished as stated in the lien and account, and the court so found. The contention, therefore, that the plaintiff was not entitled to a lien for what was done after October 6, 1920, cannot be sustained, for it is obvious that the work was all done and the materials furnished between July 22, 1920, and November 17, 1920.
The further claim that the items “freight and drayage $37,” “helper’s time $16,” and “fitter’s time $42,” are not in accordance, with the demands of the statute because they do not name the person or persons who did the work, nor specify the number of days each person worked, nor the dates, is met by the decision of this court in Newman v. Grant, 36 Mont. 77, 92 Pac. 43, where the same objection was made to items stated precisely as they are here. They were held' to be specific enough to satisfy the statute.
In Crane & Ordway v. Baatz, 53 Mont. 438, 164 Pac. 533, speaking of this statute, the court said: “The necessary steps having once been taken to secure the lien, the law is subject to the most liberal construction, for it is remedial in character, and rests upon broad principles of natural equity and commerical necessity.” While the requirements of the statute are that a just and true account shall be made, the lien will not be lost because the items of the account do not descend to minute particulars. If this court should construe the statute as counsel for the defendant does, its beneficent and salutary provisions would not be satisfied.
The evidence as to the work done and the materials furnished was conflicting. After seeing the witnesses upon the stand and hearing them testify, the district court found that it showed a compliance with the understanding between the parties when the job was given out, and that the plaintiff was entitled to a lien upon the property in the amount stated in the complaint.
The judgment signed by the court does not contain the findings of fact and conclusions of law the court made before the rendition of the judgment. Instead, it recites what plainly purports to be the findings proposed by counsel for the plaintiff. The findings of the court were warranted by the evidence, as were also the conclusions of law. The judgment should have been based upon them. The court’s finding was that “the defendant was the owner of the building commonly known and designated as the Gagnon House, located at number ten (10) and twelve (12) East Gagnon Street in the city of Butte.” It does not, however, order and adjudge the defendant and all persons claiming from or under her “be forever barred and foreclosed of and from all equity of redemption and claim in, of and to said premises and every part and parcel thereof” as does the judgment. Upon the oral argument it was conceded by both sides that the findings recited in the judgment were the proposed findings of counsel for the plaintiff — not made by the court upon the evidence— and that they were incorporated therein through mistake and inadvertence. That the judgment entered is not the judgment the court intended should be entered is apparent. The cause must therefore be remanded, with directions to enter a judgment in accordance with .the findings of fact and conclusions of law made by the court.
Another paragraph in the judgment complained of is the award of $14.50 as costs to the plaintiff without the service of the memorandum upon the defendant as provided by section 9803 of the Revised Codes of 1921. If these costs were allowed without a compliance with the terms of the statute, the proceedings thereon should have been preserved in a bill of exceptions as provided by section 9387.
The cause is remanded, with directions to the district court to proceed in conformity to the views herein expressed.
Remmded.
Mr. Chief Justice Callaway and Associate Justices ■Holloway, Galen and Stark concur.
|
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] |
MR. JUSTICE STARK
delivered the opinion of the court.
Yellowstone county is a county of the third class, and under the provisions of section 4875, Revised Codes of 1921, the county clerk thereof is entitled to appoint three deputies whose minimum salaries are fixed by section 4873 at $1,950 per annum for the chief deputy, and $1,650 per annum for the other two. Such deputies were appointed by this officer, and their salaries duly fixed by the board of county commissioners at the above named minimum. •
Section 4878 provides: “The board of county commissioners in each county is hereby authorized to allow the several county officers to appoint a greater number of deputies than the maximum number allowed by law when, in the judgment of the board of county commissioners, such greater number of deputies is needed for the faithful and prompt discharge of the duties of any county office, and to fix the salary of such deputies appointed in excess of the maximum allowed by law: Provided, such salary shall not exceed the maximum salary of deputies provided by law.”
Under the power conferred by the above section the board of county commissioners authorized the clerk to appoint additional assistants, and under this authority the plaintiff was appointed as an assistant county clerk and served as such from January to December, 1922, both inclusive. On December 29, 1921, the board of commissioners by resolution fixed the salaries of deputies and assistants until further notice at the sum of $125, beginning on January 1, 1922.
For some time prior to January 1, 1922, plaintiff had been employed as assistant in the office of the county clerk at a salary of $137.50 per month, and after the passage of the above resolution continued to act as such during the year 1922, as above stated. At the end of each month during that year she filed with the county auditor a verified claim for services rendered during the month, in which she claimed her salary at $125 per month, each of which claims, however, contained a notation to the effect that she contended that there was $12.50 additional due to her. These claims were each duly allowed for the sum of $125, and warrants therefor issued, delivered to and cashed by the plaintiff.
In December, 1922, tbe plaintiff filed with the county auditor duly verified claims for “salary due and unpaid” for the twelve preceding months, at $12.50 per month, amounting in all to $150, which claims were disapproved by the auditor and disallowed by the board of county commissioners, from which action by the board she appealed to the district court. The appeal was submitted to the court upon an agreed statement reciting the above facts, and others not deemed material here, and by judgment therein rendered the action of the board of county commissioners was reversed. From this judgment the defendant has appealed.
The sole question presented for determination is whether under section 4878 the board of county commissioners had authority to fix the plaintiff’s salary as assistant in the office of the county clerk at a sum less than the minimum of $1,650 per year (or $137.50 per month), fixed by section 4873 as the “compensation allowed to any deputy or assistant.” The Code sections referred to do not appear to make any distinction between the words “deputy” and “assistant.” Whatever plaintiff’s position may have been designated, she was in fact an extra deputy appointed under the provisions of section 4878; otherwise, there was no authority therefor.
Since plaintiff’s salary was fixed at a monthly rate, her ap pointment or employment is presumed to have been from month to month (see. 7795), and could have been terminated at the end of any monthly period; hence it was not a permanent, but only a temporary, employment. A similar question was presented to this court in Modesitt v. Flathead County, 57 Mont. 216, 187 Pac. 911, and it was there decided that section 4873 (referred to in that decision as section 1 of Chapter 222, Laws of the Sixteenth Legislative Assembly) has reference to the compensation of deputies appointed by the several county officers for service during the term, while section 4874 (sec. 2 of the above Act) has reference only to deputies who may be appointed for temporary service, and that as to deputies or assistants so appointed the board is vested with discretionary power to fix the compensation at any rate it may deem expedient, provided it does not exceed the rate fixed for regular deputies.
So far as the authority of the board of county commissioners to fix the compensation of deputies appointed in excess of the number allowed by section 4875 is concerned, there is no difference between the provisions of sections 4874 and 4878, and the construction of 4874 in the Modesitt Case is controlling in this case, and this gave the board authority to fix the plaintiff’s salary as it did.
An examination of sections 3090 and 3091, Revised Codes of 1921, referred to by counsel, shows that they have no application to this case.
The judgment of the district court of Yellowstone county is reversed and the cause remanded, with directions to enter judgment in favor of defendant.
Reversed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Galen concur.
|
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MR. COMMISSIONER BENNETT
prepared the opinion for the court.
In August, 1912, Annie C. Morehouse, plaintiff herein, and Nicholas 0. Tuttle gave an option to purchase certain lands in Teton county to Thomas 0. Larson. Defendant, Northern Land Company, a corporation, succeeded to the option. Subsequently, in August, 1913, after a protracted series of negotiations, a deed was executed and delivered, whereby plaintiff and Tuttle did “grant, bargain, sell, convey, warrant, and confirm,” unto defendant the land covered by the option. The deed also contained the covenant providing that the grantors “will forever warrant and defend all rights, title, and interest in and to the said premises and the quiet and peaceable possession thereof unto the said party of the second part, its sue cessors, and assigns against the acts and deeds of the said parties of the first part and all and every person and persons whomsoever lawfully claiming or to claim the same. * * * ” This was the only covenant in the deed. Contemporaneously with the execution and delivery of the deed, defendant made, executed and delivered to plaintiff and Tuttle a series of notes and a mortgage on the same premises to secure the payment of a balance of the purchase price. Prior to the delivery of the deed and mortgage, an action had been commenced against plaintiff and Tuttle involving the title to a portion of the property. An abstract of title had been secured, and defendant had caused it to be examined by an attorney and had been advised as to the condition of the title which was disclosed by the abstract. During aE the negotiations prior to the delivery of the deed, defendant had either been represented or was accompanied by an attorney — one of his attorneys of record herein. In particular was this so on the day the deed and mortgage were finally delivered. On this day a collateral written agreement was entered into between plaintiff and Tuttle on the one hand and defendant on the other, providing that, in the event the action then pending against plaintiff and Tuttle should be determined adversely to plaintiff and her co-owner, they would reimburse defendant for all the land which the court determined was not owned by them.
Some time in 1914 the defendant obtained possession of the premises and is now in the possession thereof. Defendant’s proof discloses that plaintiff’s attorney, prior to the delivery of the deed, stated orally that the title was good and that any defects would be remedied. Defendant claims that reliance was placed on these statements. Tuttle was paid off in full, and the major part of the amount due plaintiff was paid. In the meantime an action to quiet title to the lands had been commenced by plaintiff. This action was pending at the time the last note belonging to plaintiff fell due. Defendant refused to pay as long as this action was pending. In some manner which does not definitely appear, this action was disposed of, but in the meantime, defendant having discovered what was, according to its attorneys, a defect in a decree of distribution of the estate of plaintiff’s husband, through which the title passed, refused to make the last payment on that ground. It is claimed that the records did not disclose the plaintiff to be the owner of a greater interest in the premises than one-half, that Tuttle had only had a one-fourth interest, and that therefore there was a defect as to a one-fourth interest. Upon the refusal of defendant to pay, this action was commenced to foreclose the mortgage for the unpaid balance. Defendant answered, setting up a defense in effect that the mortgage was a purchase-money mortgage; that the plaintiff had covenanted to convey a perfect title; that it was induced to accept the deed by the assurance of plaintiff’s attorney that the title was perfect; and that in fact the title was.defective. Counterclaims were also interposed on the same facts. Prior to the trial of this action, such steps had been taken by plaintiff that defendant had become satisfied with the title and made a tender of the amount of the note and interest to its due date. This tender was not accepted by plaintiff. The case was tried on the theory that the only question involved was whether the defendant was liable, for the interest since the date the note matured and for attorney’s fees upon foreclosure as provided in the note and mortgage. The only answer which is included in the record was an amended one filed after testimony had been taken. The trial court found in favor of plaintiff, and a judgment and decree of foreclosure was entered. • The appeal is from the judgment.
The trial court found that the plaintiff was, on July 16, 1913, the owner in fee of an undivided three-fourths interest in the premises involved. Error is predicated upon this finding. Defendant also specifies as error the making and entry of judgment for plaintiff, for the reason that it is contended the proof shows that the plaintiff was not the record owner of an undivided three-fourths interest in the lands, that plaintiff had covenanted to give perfect title, and that defendant was induced to accept the deed by the statements of plaintiff’s attorney that the title was good, when in fact it was not and the further statement that all defects would be cured. It is also contended that the court erred in disregarding the counterclaim set up in support of which testimony was adduced.
In our opinion the judgment was correct. The rule which controls this case is found stated in Eawle on Covenants for Title, page 612 et seq. After remarking on the distinction between the rules which govern the relation of vendor and purchaser before and after the execution of the deed, and pointing out that a purchaser under an executory contract of sale may demand a title clear of defects, usually even in the absence of specific covenants therefor, the author says: “But when the deed of conveyance has been delivered, a different rule applies. The contract is then executed, and any inconsistencies between its original terms and those of the deed are, in general, to be explained and governed solely by the latter, into which the former is merged, and by which the parties are thereafter to be bound, and the purchaser’s only right to relief, either at law or in equity, from defects or encumbrances, depends, in the absence of fraud, solely upon the covenants for title which he has received. * * * And it is one of the most settled principles of the law of vendor and purchaser that a purchaser who has received no covenants which cover the defect or encumbrance, can neither detain the purchase money, nor recover it back, if already paid. Unless there has been fraud, he is absolutely without relief, as against his vendor, either at law or in equity.”
Before proceeding further, we point out that this court, in Green v. Balter, 66 Mont. 568, 214 Pac. 88, held that a deed which is not distinguishable from the one at bar in legal effect did not contain a covenant of seisin, and that an action was not maintainable based on defects in the title, without allegations and proof of an eviction, either actual or constructive, by the owner of the paramount title. The record in the instant case is barren of any such allegation or proof.
It is argued, however, that the statements of plaintiff’s counsel that the title was good and that all defects would be cured, which it is contended were contrary to the fact, constituted constructive fraud, and that, since defendant relied thereon and accepted the deed because thereof, the facts bring the ease within the exception to the general rule. There are two answers to this argument.
In the first place, the testimony discloses that the only statement which was relied on was the attorney’s oral promise to make the title good. If by any construction it can be said that defendant relies on subdivision 4 of section 7480, Revised Codes of 1921, providing that “a promise made without any intention of performing it” is actual fraud, the facts do not bring the ease within that rule, for the plaintiff did proceed to do the things which defendant insists she promised through her attorney to do. Certainly there is no proof that a promise was made without any intention of performing it, and in fact the allegations of the answer do not permit of such contention being made. Furthermore, it is apparent that these conversations between plaintiff’s attorney and the officers of defendant company had reference to the suit to quiet title which was then pending against plaintiff and her co-owner, and nothing more. The negotiations culminated in the collateral written contract by which it was agreed that, in the event the result of that action was to determine that plaintiff and her co-owner were not the owners of the lands involved in that action, defendant would be reimbursed.
In the second place, the proof discloses that the defendant had caused an examination of the title to be made and could have learned of the defects if it did not already know them. The statement of this court in Grinrod v. Anglo-American Bond Co., 34 Mont. 169, 85 Pac. 891, is in point here: “When it appears that a party, who claims to have been deceived to his prejudice, has investigated for himself, or that the means were at hand to ascertain the truth or falsity of any representations made to him, his reliance upon such representations, however false they may have been, affords no ground of complaint.”
In discussing this question of fraud we Have assumed that, if the other elements were present, the statement of opinion by the attorney as to the title would have been sufficient to bring it within the definition of fraud. Of the soundness of this conclusion we have some doubt, but we express no opinion thereon.
While the question was not discussed by counsel we deem it proper to point out that under the provisions of sections 7520 and 10517, Revised Codes of 1921, all oral negotiations were superseded by both the deed and the contemporaneous written contract, and no reliance can be placed thereon as covenants of seisin.
In the light of what has been said, the question as to the nature of the defect in the decree of distribution becomes immaterial.
The same answer may be made to the specification of error based upon the court’s finding that the plaintiff was on July 16, 1913, the owner in fee of an undivided three-fourths interest in the premises involved.
What has been said also disposes of the proposition that the court made no finding upon the counterclaims. In fact it applies to the counterclaim with particular force, since we are doubtful whether in any event the facts alleged were a defense to the action. In our opinion, assuming the correctness of defendant’s other theories, the remedy was either by way of countei’claim or to rescind the contract. This latter remedy was never attempted, nor could it have been successfully invoked under the facts. There was therefore no reversible error committed in not making any finding upon the counterclaims. Any necessary findings pertinent thereto will be implied.
We have examined the specification as to the correctness of the court’s action in granting plaixxtiff additional time within which to offer amendments to the proposed bill of exceptions. Under the provisions of section 9823, Revised Codes of 1921, we think the trial court had the power to extend the time. Possibly the same limitations as are provided by sec tion 9390 as to proposing bills of exceptions would apply to amendments, but, since it would be obiter herein, we express-no opinion as to that.
We recommend that the judgment be affirmed.
Per Curiam :
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
.Affirmed,
|
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] |
PER CURIAM.
The relator’s petition for writ of review is, after due consideration by the court, denied.
|
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] |
Opinion:
PER CURIAM.
This cause was before the court during the December, 1922, term (65 Mont. 414, 211 Pac. 353).
When the remittitur went down the district court sustained defendants’ demurrer agreeably to the direction of this court. The plaintiff refused to plead further, whereupon judgment was entered in favor of defendants, and from that judgment the plaintiff has appealed.
By agreement of counsel the briefs which were filed in the former appeal have been used in this one. These have been supported by oral argument.
Further consideration only serves to satisfy us that the opinion delivered when the cause was here before is correct, and, except as to the concluding paragraph which gives directions to the court below, we now adopt it in full as our opinion in the instant case.
The judgment is affirmed.
Affirmed.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted to recover damages for an alleged breach of contract. The plaintiff alleges that he was employed by the defendant for one year, and was wrongfully discharged at the expiration of six months. Defendant denies that the employment was for one year, alleges that it was from month to month, and that he was justified in discharging plaintiff be cause he proved to be an incompetent irrigator, and a large portion of defendant’s lands require irrigation for successful cultivation. The trial of the cause resulted in a verdict for plaintiff, and defendant appealed from the judgment entered thereon.
But two questions are presented: (1) Was the plaintiff employed for one year, and (2) if he was employed for one year, was defendant justified in discharging him before the expiration of that period? In order to reach the verdict which was returned, the jury must have answered the first question in the affirmative and the second in the negative. It is contended that the evidence does not justify either answer.
It is admitted by the parties that their negotiations were in- itiated by a letter, written on March 21, 1921, by the defendant, who resided near Divide, Montana, to the plaintiff who had formerly lived near Divide, but who was then living with his family in Illinois. 'The portions of the letter material here are the following: “I think now I could use you as a steady man. # * * I could keep you the year round. * * * I would like to have you here by the 1st of April if possible. * # * Wire me C. O. D. to Divide if you can come.” Upon receipt of the letter plaintiff telegraphed to defendant, “We are coming.” It is admitted further that upon the arrival of plaintiff in Montana he and defendant had a conversation in which the terms of the employment were agreed upon. Those terms to this extent are not disputed: Plaintiff was employed by defendant to work as a farm laborer; he was to receive as compensation $75 per month,-and, in addition thereto, eggs, butter, milk and garden vegetables necessary for his family’s use. It is agreed also that plaintiff entered upon the discharge of the duties of his employment about April 5 and that he worked continuously until October 5, when he was discharged.
Plaintiff testified on direct examination that he was employed for one year. On cross-examination when he was asked to give the language used by the defendant to fix the term of the employment, he testified that defendant said to him, “I will give you work the year round.” Defendant denied that he used that language, and testified that the term of the employment was not mentioned at all. The conflict in the evidence the jury resolved in favor of the plaintiff, and for the purposes of this appeal established as a fact that the defendant did employ the language quoted above.
Counsel for defendant insist that conceding that the contract contained that language, the question of the term of employment is one of law, and the contract should be construed to mean employment from month to month only, and not for a year; but counsel have failed to cite any authority for the construction of which they contend. 'The phrase “the year round” is not defined by any of the standard dictionaries and has not been defined by the courts, so far as our investigation discloses. In Roget’s Thesaurus of English Words and Phrases, it is said that the phrase refers to duration, and “duration” is defined as “the portion of time during which anything exists.” (Webster’s International Dictionary.) The Literary Digest lexicographer defines the phrase as follows: “Passing through the same series of mutations throughout the year; from beginning to end.” Upon these authorities it may be said fairly that plaintiff was employed for one year — from the beginning to the end of the contract year. But if it may be said that the phrase is a provincialism the meaning of which is to be determined by local usage, defendant is not in any better position. The only evidence of local meaning is found in the testimony of the plaintiff, who said he understood the phrase to mean for one year, and error is not predicated upon the ruling admitting the testimony. While that evidence is slight, plaintiff invokes in behalf of its sufficiency the statutory rule announced in section 7545, Revised Codes of 1921, that, in cases of uncertainty not removed by the ordinary rules of construction, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party. In this instance, however, recourse need not be had to that presumption. Defendant admitted that he wrote the letter of March 21, in which the phrase or its equivalent was used, and by their general verdict the jury found that the phrase employed in the contract is the language of the defendant. The burden of removing the uncertainty was therefore upon the defendant, and, failing as he did to discharge that burden, the language must be construed most strongly against him. (Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035.) Under these circumstances "we hold that the evidence is sufficient to sustain the finding that plaintiff was employed for one year.
In his answer defendant alleges that he discharged plaintiff because of his inexperience and incompetency as an irrigator; but he admitted in his testimony that during the irrigating season he did not criticise plaintiff’s work; that at the time he discharged plaintiff the irrigating season was over and that further irrigating would not be required until after the expiration of the year for which plaintiff claims he was employed. Furthermore, defendant admitted that at the time he discharged plaintiff he assigned as the only reason for his action that his banker had insisted that he employ a single man instead of a married man. William M. Weir testified for plaintiff that immediately after the dismissal he had a conversation with defendant, in which defendant said: “His [plaintiff’s] work was perfectly satisfactory, but, just as I told him, my banker said I had to cut down expenses, and so I hired a single man in his place for $30 a month.” In rebuttal defendant denied that he made the first part of this statement, but admitted that he told William M. Weir that the reason he gave plaintiff for- discharging him was that his banker had told him to cut down expenses. Upon cross-examination the defendant testified that in the fall of 1921 the labor market became flooded, and wages were reduced greatly, and that he did employ a man in plaintiff’s place for from $35 to $45 per month. Finally in his cross-examination defendant testified: “To come right down to cases, the real reason for wanting to make the change was not necessarily that he was a bad irrigator, and that I had got a man to' do the winter work for $35 to $40 a month, but he did not take any interest in his work, and was not doing it.” In view of these conflicting statements the jury was justified in finding that defendant did not have any legitimate reason for discharging plaintiff.
It is urged that the verdict is contrary to the law as declared in the court’s instructions 3, 5 and 6. Those instructions were given at defendant’s request, and read as follows:
“(3) You are instructed that an employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill.
“ (5) You are instructed that an employment, even for a special term, may be terminated at any time by the employer in case of any willful breach of duty by the employee in the cause of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.
“(6) You are instructed that an employee, dismissed by his employer for good cause, is not entitled to any compensation for services rendered since the last day upon which a payment became due to him under the current contract.”
Counsel have failed to indicate wherein the verdict is contrary to or in conflict with those instructions or any of them. The general verdict is a finding in favor of plaintiff upon all the issues presented. (City of Butte v. Mikosowitz, 39 Mont. 350, 102 Pac. 593.) One of the issues raised by the pleadings was whether plaintiff was ready, able and willing to perform his part of the contract of employment, and from the testimony of the witness William M. Weir the jury was justified in finding that his work was entirely satisfactory to the defendant. In this view of the case it becomes apparent that the verdict is not contrary to the law as declared by the trial court.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Stark and Galen concur.
|
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In 1920 the people passed initiative measure No. 19, designed to provide for the construction, repair and equipment of buildings at the state educational institutions, and empowering the-state board of examiners to issue bonds in the name of the state in an amount not exceeding $5,000,000 for such purposes. These are called “Educational Bonds of the State of Montana.” Section 2 of the measure provides that the bonds shall be issued in series from time to time, and at such times and in such amounts as may appear to the state board of examiners necessary for the erection, repair and equipment of buildings at the institutions under the control of the state board of education. By section 8 the board of examiners is authorized to determine the denomination of the bonds-, which “shall bear date as of the day of the issuance thereof, shall become due and payable twenty years from their date, and be redeemable at the option of the state board of examiners at any time after ten years from their date at any interest paying period, and shall bear interest at the rate of not exceeding five and one-half per centum per annum, payable semi-annually. * * * ” Validity of the measure was determined in State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 Pac. 841.
Following proper proceedings the state board of examiners on April 18, 1923, issued series D and series E of Educational Bonds of the state of Montana. These bonds are made payable in twenty years, redeemable in ten years, and bear interest as provided in the measure. These have not been delivered to purchasers.
By Chapter 38 of the Session Laws of the Eighteenth Legis lative Assembly, approved February 28, 1923, it is pro vided in part that: “Whenever the state of Montana, or any county, city, town, school district, or any other taxing unit in the state of Montana having the power to issue and negotiate bonds, does hereafter issue its bonds, such bonds shall be payable on the amortization plan if bonds in this form can be sold and disposed of at a reasonable rate of interest. If amortization bonds cannot be negotiated at such reasonable rate of interest, advantageous to the people for whose benefit the same are issued, then in such case, serial bonds may be issued in place of amortization bonds.”
There is not in Chapter 38 any provision to the effect that its provisions shall be retroactive. Section 6 thereof contains the usual clause, “all Acts and parts of Acts in conflict with this Act are hereby repealed.”
Relator, after alleging the foregoing facts, with others, asserts that Chapter 38 repeals that portion of initiative measure No. 19 directing the state board of examiners, whenever bonds are issued thereunder, to make the same payable in twenty years and redeemable in ten years. He says Chapter 38 requires the board to issue and sell amortization bonds if bonds of that kind can be negotiated at a reasonable rate of interest;otherwise to issue and sell serial bonds. He prays this court to enjoin the board from issuing or disposing of series D and series E above mentioned, and from selling any bonds save such as may be issued under the provisions of Chapter 38. Defendants have demurred to his complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
By the express provisions of section 3, Revised Codes of 1921, no law contained in any of the Codes or other statutes of Montana is retroactive unless expressly so declared. “There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retroactive operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute.” (25 R. C. L. 787.)
It seems clear to us that Chapter 38 has a prospective operation only.
The demurrer is sustained and the proceeding dismissed.
Dismissed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
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G-albraith, J.
This action was brought by the appellant to ■ restrain one of the defendants, the sheriff of Madison county, from making and delivering a deed for certain real property sold by him under an execution, and also to stay further proceedings under the judgment on which the execution issued, and that the judgment itself be declared null and void. The complaint alleges, in substance, that on the 5th day of September, 1870, a certain action was begun in the probate court of Madison county, Montana territory, entitled E. Creighton & Co., plaintiffs, against Robert Hedges, James Boyd and A. S. Potter, ‘defendants. That on the 19th of September, 1870, the probate court rendered and entered a judgment in favor of E. Creighton & Co. and against' said Hedges, Boyd and Potter, for the sum of $429, and costs of suit. That on the 15th day of December, 1879, Edward Creighton, John A. Creighton and Patrick A. Largey filed in the same court a certain paper, entitled in their names and against said defendants, appearing from its contents to have been a notice that on the 15th day of January, 1880, or as soon thereafter as counsel could be heard, they would apply to the court for an order reviving the said judgment, and for leave to issue an execution thereon, and that it be issued in the name and favor of John A. Creighton and Patrick A. Largey, surviving partners of E. Creighton & Co. This was signed by John A. Creighton and Patrick A. Largey, “ surviving partners of firm of E. Creighton & Co., by Samuel Word, their attorney.'” That an affidavit to revive judgment, and notice that Patrick A. Largey and John A. Creighton were partners with Edward Creighton, and composed the firm of E. Creighton & Co., was filed the same day. That on the 20th day of January, 1880, after a hearing “upon the motion of the plaintiffs for leave of court to issue an execution upon the judgment,” the said court made and entered an order on the case now entitled “Edward Creighton, John A. Creighton and Patrick A. Largey, plaintiffs, v. Eobert Hedges, James Boyd and Anson Potter, defendants.” That plaintiffs have an execution upon said judgment against the defendants, James Boyd and Eobert Hedges, these being the defendants served with the above notice. That afterwards, at the instance of Patrick A. Largey and John A. Creighton, a certified transcript of said judgment was filed with the clerk of the district court of Madison county, and was docketed in the manner prescribed by law, and an execution issued thereon directed to Marshall D. Platner, sheriff of Madison county, who, in obedience thereto, levied upon certain real property of the appellant James Boyd, and sold the same to Patrick A. Largey, one of the respondents. It was further alleged that the judgment rendered in the probate court in favor of E. Creighton & Co., and against Eobert Hedges, James Boyd and M. D. Platner, was null and void for uncertainty, in this, that neither the Christian name of the said E. Creighton, nor of any one of the company, is given, set forth or mentioned in said action. That E. Creighton & Co. was a company and copartnership at the time said action was instituted, and not a corporation. That more than six years had elapsed since the rendition of said judgment and the date of the proceeding to revive the same, and that in the mean time no property of the defendants was sold under an execution issued by virtue of said judgment. That before the revival of the judgment, Edward Creighton had died, and that no one had been appointed to administer upon his estate, nor had he any executor or legal representative. That unless restrained, Marshall D. Platner, sheriff of Madison county, will execute and deliver to Patrick A. Largey a deed for the real property sold by him as above stated, which, if done, will cast a cloud upon the title of plaintiff. The prayer of the complaint was for an injunction pendente lite. That upon the final hearing, the sheriff be perpetually enjoined from making or delivering a deed of the property so sold, or any part thereof, to Patrick A. Largey, and that the said Patrick A. Largey and John A. Creighton, their agents, attorneys and legal representatives, and also as the legal representatives and surviving partners of the firm of E. Creighton & Co., be perpetually restrained from taking any action or proceeding under said judgment of E. Creighton & Co., and that said judgment be declared null, void and of no effect.
On the 2d day of November, 1881, an order was made by the judge at chambers enjoining the sheriff from making, or delivering a deed for the said property until the further order of the court. The grounds of demurrer were that the complaint did not state facts to constitute a cause of action. The court sustained the demurrer; and the appellant abiding his complaint, judgment was rendered dismissing the action and dissolving the preliminary injunction, and for the defendants for costs.
The only question presented to the court by the argument of the appellant relates to the legality of the proceedings and judgment in the original action of E. Creighton & Co. in the probate court. The law requires that the “ action ” should “be prosecuted in the name of the real party in interest, and that the complaint should contain the name of the parties to the action, plaintiff and defendant.” There was no statute providing that a suit might be brought in a firm or copartnership name. E. Creighton & Co. was not the name of a person. The record shows it to have been the name of a company or copartnership. But it may be assumed that E. Creighton was the name of one of an association of persons consti tuting a partnership whose name was E. Creighton & Co. The defendant should therefore have demurred to the complaint, for a defect of parties. A. M. Gilman & Co. v. Cosgrove, 22 Cal. 357.
But it is further claimed that E. Creighton is not a legal name, and that the Christian name of Creighton should have been stated in the complaint in the original action in the probate court, and the judgment rendered in the case is therefore void for uncertainty. Reliance for this position is had upon the case of Wiebold v. Herman, 2 Mont. 609. It is true that in this case the majority of the supreme court so held. But the question there came before the court on the overruling of a demurrer to the complaint, on the ground that the Christian name of the plaintiff did not appear therein. The bearing of such a defect upon the judgment, when no objection had been made to the complaint on that ground at the proper time, was not before the court, and so far as the effect on the judgment was concerned, the language of the court was obiter dictum. The same question came before the court at the same term in the case of Nichols v. Dobbins, 2 Mont. 540, on an appeal from an order overruling a motion for a new trial, when the objection came too late, being taken after answer, and it was held by the court, the same judge, Wade, C. J., delivering the opinion, who had rendered the opinion in Wiebold v. Herman, “that the appellant waived this objection by answering, thus recognizing the l’espondent by the name in which he brings this action.” The court say that it is too late to raise this objection to the complaint after answering, and it cannot he presented for the first time to the court after the verdict and appeal. In the case of Wiebold v. Herman, we held that the failure to set forth the Christian name of the plaintiff rendered the complaint uncertain. But this uncertainty must be taken advantage of by demurrer, or “the defendant shall be deemed to have waived the same.” Code of Civ. Proc. sec. 86. In the case at bar no such objection was ever made, and it is now too late to urge it in this application to stay proceedings at law, and to nullify the judgment.
The argument presented to this court by the appellant not only raises the above question, but as this is an appeal from an order sustaining a demurrer, and a judgment for the respondents in consequence thereof, the whole question is therefore properly before us of the sufficiency of the complaint to warrant the relief demanded.
The law relative to issuing executions on judgments after five years from the entry thereof, contained in the Eevised Statutes, sec. 813, Code of Civil Procedure, limits the court to the exercise of this power alone upon compliance with its provisions, and grants no authority to modify the judgment in any way whatever, or to change the record upon which it was obtained. 1 c As a general rule, no final judgment can be amended after the term at which it was rendered.” Freeman on Judgments, sec. JO. There are exceptions to this rule, as, for example, where the judgment can be amended by the record, as in the case of corrections of mere clerical errors or omissions by the clerk, which may be made so as to conform the record to the truth. But the application that the execution issue in the name and favor of John A. Creighton and Patrick A. Largey was not based upon any of the above grounds, but simply upon the fact that they were the surviving partners of E. Creighton & Co. The only foundation for the order authorizing the issue of an execution in their favor, the effect of which, if it had any at all, was to make them parties plaintiff to the action, was an affidavit made at the time, being more than six years after the rendition of the judgment, in substance that the above persons were, at the time of the rendition thereof, partners with Edward Creighton, under the firm name of E. Creighton & Co. We think that at this time, upon this showing, the probate court had no power to make the above order, so far as P. A. Largey and John A. Creighton were concerned, for want of jurisdiction. The record shows that at this time E. Creighton was deceased, and the application for a revival of the judgment was not made by an administrator or other legal representative of the estate, nor was there ever a suggestion of his death upon the record, or the substitution of such administrator or other legal representative. Under these circumstances, the order could not have the effect to revive the judgment, or to authorize the issue of an execution. At the time, therefore, that the transcript of the judgment was entered in the district court, it was dormant, and was so at the time the execution was issued under which the sale of the real property was made, the delivery of a deed for which was asked to be enjoined in this proceeding. A dormant judgment is not a lien against real estate.
Our conclusion, therefore, is that the judgment was only in favor of E. Creighton; that there was no revival thereof; that the filing thereof in the district court did not make it a lien against real estate, and an execution could not issue thereon.
The judgment is reversed, and the preliminary injunction continued in force until proceedings are had in accordance with this opinion.
Judgment reversed.
|
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Wade, O. J.
This is an appeal from an order appointing a receiver. The plaintiff moves to dismiss the appeal for the reason that the same is not authorized by the statute. Appeals from the district to the supreme court are matters of statutory regulation. The statute designates in what cases appeals may be taken. The designation of these denies the right in all other cases. Appeals may be taken from certain interlocutory and other orders, hut an order appointing a receiver does not belong to this class. The right of appeal does not belong or attach to an order appointing a receiver. The statute does not give the right, and this court has already held, in the •case of Wilson v. Davis, 1 Mont. 98, that there is no ap peal from an order appointing a receiver. These considerations ought to settle the question conclusively, unless there is something in the case that takes it out of the ordinary rule. It is contended that, because the order commands the defendants to refrain from any and all interference with the receiver in the discharge of his duties as such, it is therefore an injunction, besides being an order appointing a receiver, and that from an injunction an appeal lies to this court. To this it is sufficient answer to say that there is no appeal here from an order enjoining the defendants. The appeal is from the order appointing a receiver, and no mention is made in the notice of an appeal from an order enjoining the defendants. The appointment of a receiver carries with it the right to the possession of the property described, and the further right not to be interfered “with in such possession so long as the appointment remains in force. These are the ordinary powers and rights that belong to a receiver in order to make his appointment effectual, and they would have belonged to him, and he could have possessed and held the property, if they had not been mentioned in the order. Possession is property; and possession cannot ordinarily be taken from one and given to another without a hearing and adjudication. But the possession of a receiver is as much the possession of one party as the other. He holds the property for the benefit of the party who shall finally be adjudged entitled to the possession. He is an officer of the law, and in his hands the property is in the custody of the law. He preserves and protects the property for the benefit of the rightful owner. If the complaint does not make a case for the appointment of a receiver, the defendant may move to have the order set aside. Appeal is not the remedy authorized by statute. In this action the defendants, Savage & Sons, made an assignment to Mund and Curry for the benefit of their creditors, and they took possession of the property assigned to them, and entered upon the execution of their trust. Thereafter, at the suit of some one or more of the creditors, Johnson, the sheriff of Custer county, seized the property so assigned, and took possession of the same. Thereupon the plaintiff, another creditor, brings this action to test the validity of the assignment aforesaid, and asks for the appointment of a receiver to hold the property and the money received from the sale of that which is perishable and going to waste, until the validity of the assignment and the rights of the creditors shall have been adjudicated and fully determined. It does not seem to be a matter of much consequence whether the property is so held and preserved by* the sheriff of Custer county or by the receiver appointed herein. The creditors, and not these officers of the court, are the parties interested. Certainly the sheriff, who is the appellant herein, nor the persons in whose behalf he is acting, cannot ask this court to review an order tfrom which there is no appeal. The appeal is dismissed.
(All concur.)
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] |
Coburn, J.
The plaintiffs, Thomas Wilkinson and Samuel Dempster, who are the appellants, filed in the district court their petition for the appointment of commissioners to appraise the value of the premises described therein, which have been taken under the grant of the right of way to the defendant for a railroad track.
The defendant, the railroad company, answered; and the cause was submitted upon the petition and answer to the court below, and thereupon the prayer was denied and the petition dismissed. From this denial and dismissal of the petition the plaintiffs appealed to this court.
The petition shows that the plaintiffs are seized in fee as tenants in common of certain mineral lands particularly described. That said lands were located in the year 1868, and claimed under and in pursuance of the laws of the United States and of this territory and of the local rules and regulations of mines and miners, at a time when said lands formed a part of the public domain of the United States., That these lands were held, worked and claimed as placer mining grounds, under and by virtue of the above authority, until the 20th day of February, 1882, on which day the petitioners and Eichard Eule and Conrad Geiger, as proprietors, applied for a patent to said lands; paid for them at the rate of $2.50 an acre, complying in all respects with statutes as to such entries. On the 31st day of May, 1883, a patent was issued to them for the lands.
Since 1868, the petitioners and their grantors have held peaceable possession of the lands and now own them, having received a conveyance from Eule and Geiger for their interest. That valuable mining ditches belonging to plaintiffs have been made on the lands, necessary to the business of mining thereon. That a large portion of these lands have upon them placer mines, of gold unworked, which, with the water appertaining to the premises and available for mining, will yield large quantities of gold of great value.
That the Northern Pacific Eailroad Company, the defendant, did, on or about the month of April, 1882, enter upon and construct its road along and over these mining lands, and cut and tore the ground and water ditches in such a manner as to render a large portion thereof entirely unfit for use as mining ground, and made it impossible for the petitioners to take gold therefrom. That the length of said track along and across said ground is about one and a half miles; that the defendant claims an easement upon and over said land for a distance of two hundred feet on each side of said track for said distance, by virtue of their act of incorporation.
That these lands are, and were at the time of the entry, private lands, and were, and now are, mineral lands within the meaning of the act incorporating said company and of the laws of the United States.
That the petitioners and defendant have not been able to agree as to the value of the premises so taken. That by reason of this taking by defendant, they have been damaged $15,000.
The prayer of the petition is for the appraisement, and the appointment of appraisers of the land so taken for the right of way, pursuant to section 1 of the charter.
The answer denied that the defendant claimed or desired the premises in fee, but only claimed an easement therein and right of way thereon, as granted by section 2 of the act incorporating this company, and averred that the right and title thereto antedated the rights of the petitioners, the date thereof being the 2d day of July, 1864; that petitioners’ right is subordinated to that of the defendant, who is entitled to the same without compen-. sation to the petitioners. The answer closes with a prayer that the petition be dismissed, and defendant moved to dismiss the petition upon the facts and law appearing in the same and the answer, which motion the court sustained and dismissed the petition. From this order the petitioners appeal.
The second section of the charter of the Northern Pacific Eailroad Company grants the right of way through the public lands, two hundred feet in width on each side of the track. The seventh section provides for the entering upon, purchasing, taking and holding, and condemnation of any land owned by private individuals. for the right of way. Provision is made for the appointment of commissioners to assess damages in case the owners of land cannot agree as to the same with the company.
The petitioners, having a patent from the United States, claim damages under this seventh section.
The supreme court of the United States has decided that a similar grant of the right of way is present and absolute, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purpose designed; and that there is nothing-in the policy of the government with respect to the public lands which would call for any qualification of the terms, inasmuch as the grant of the right of way contains no reservations or exceptions such as are found in the sections of the charter granting land in aid of the construction of the road. See Railroad Company v. Baldwin, 103 U. S. 426. See, also, Western Pac. R. R. Co. v. Tevis, 41 Cal. 493.
The appellants take the position that they have the legal title, a patent, which is voidable only until set aside by a court of competent jurisdiction, and that having this title, they have a right to the appointment of commissioners. But the respondent has also a legal title of an older date, which is found in the act of congress making the grant, and the inferior must yield to the superior legal title, without a resort to a court of equity to set the inferior one aside. It is not, therefore, necessary that the railroad company should call to its aid, in order to secure the right of way through the petitioners’ land, the exercise of the power of eminent domain, since, at least four years before they made any claim to the land in question, it had been granted unconditionally to the defendant.
The third section of the charter, which grants lands in aid of the construction of the railroad, is as follows: “ That there be and is hereby granted to the Northern Pacific Eailroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated ■ by odd numbers, to the amount of twenty alternate sections of land per mile on each side of said railroad, whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office, and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections. Provided: That, if said route shall be found .upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted by this act. Provided, further: That the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate and associate with said company upon the terms named in the first section of this act. Provided, further: That all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd numbered sections, nearest to the line of said road, may be selected as above provided; and provided, further, that the word “mineral,” when it occurs in this act, shall not be held to include iron or coal; and provided, further, that no money shall be drawn from the treasury of the United States to aid in the construction of the said Northern Pacific Railroad.”
The mineral lands excluded from the operation of this act are evidently not those covered by the right of way, as nothing could possibly be given in lieu • of any lands which might be needed for such a purpose. And it would be destructive of the rights of the railroad company, if mining claims could at any time be located and worked upon the track and land covered by the right of way. See Doran v. Cent. Pac. R. R. Co. 24 Cal. 246. The joint resolution of congress of January 30, 1865, declar-' ing that no act shall be so construed as to embrace mineral lands, which in all cases shall be, and are hereby, reserved exclusively to the United States, cannot be considered as a reservation of mineral lands from the operation of grants of the right of way, such as the one in question. A reservation of that character would annihilate the franchise and annul the operation of the entire act of congress granting the charter. The operations of mining, and the business of railroads, cannot be conducted at the same time upon the same ground, and a reservation of such a character would beget a conflict of rights and a confusion of interests, not in contemplation of intelligent legislative action.
Judgment affirmed.
|
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Galbraith, J.
This is an appeal from an order of the court confirming the action of the respondent in removing the appellant from the office of treasurer of said county of Custer, and appointing another person to fill the vacancy. The first question presented relates to the right of the persons constituting the board of commissioners of Custer county, to hold and exercise their offices as such commissioners. An act of the legislative assembly, entitled “An act relative to the offices of county commissioners of Custer county,” approved March, 1883, declared the offices of county commissioners of Custer county vacant, and appointed William Vangaskin, George M. Miles and Thomas J. Bryan to the said offices. It appears from the record in this case, that, at the time of the acts complained of, they were holding said offices and acting therein as county commissioners. These persons were, therefore, at the time, holding and exercising their respective offices, at least, under color of right, and were then commissioners de facto of Ouster county. Their title to the offices cannot be tried in this proceeding; it cannot be attacked collaterally. “An act of assembly, even if it he unconstitutional, is sufficient to give color of title; and an officer acting under it is an officer de facto. When a person is acting under the apparent authority of an act of assembly, his title to the office is not to be assailed collaterally.” Commonwealth v. McCowles, 56 Pa. St. 436. Persons in the actual and unobstructed exercise of office must be held to be legal officers except in proceedings where their official character is the issue to be tried as against themselves. “ The title to office can never he tried collaterally.” Johns v. People, 25 Mich. 499; Tracy v. Fuller, 13 Mich. 527; Douglas v. Wickwire, 19 Conn. 488; Druse v. Wheeler, 22 Mich. 438: Parks, Petitioner for Writ of Habeas Corpus, 3 Mont. 426.
The board of county commissioners will, therefore, be presumed to have been at this time rightfully in the exercise of its lawful authority. The next question presented is, as to whether or not, by the removal of the appellant, the board exceeded its jurisdiction. The proceedings of the board of county commissioners, in relation to the removal of the appellant, were brought before the court by writ of certiorari. From the transcript of these proceedings, it appears that the appellant was the acting treasurer of Custer county, his term of office having commenced on the first Monday of March, 1883. R. S. 1879, p. 522, sec. 548. His bond as treasurer was not presented to the hoard until the 8th day of March, when a bond in the sum of $25,000 was presented. It does not appear that this bond was ever accepted or approved by the hoard. On the 24th day of March, he was notified that the time of filing his official bond had expired, and that he had no bond on file. On the 31st day of March he presented a bond in the sum of $25,000, which was not accepted, and he was allowed five days to secure bondsmen, and the amount of the bond fixed at the sum of $50,000. On the 2d day of April, the clerk of the board was instructed to serve a- written demand upon the appellant for the immediate return of $1,700 to the county treasury, found by the board to have been paid out as attorneys’ fees, not in accordance with law; and he was granted three days in which to return the same. On the 6th day of April, the appellant presented a bond in the sum of $50,000. On the same day this bond, upon due examination, was found insufficient, and thereupon disapproved. On the same day the following preamble and resolution was adopted:
“Whereas, the board finds that Willis W. Garland, elected county treasurer of this county for the term of two years, commencing on the first Monday in March, 1883, did not, before entering upon the- duties of said office for said term, execute to the board of commissioners of this county, or deposit either with said board or the chairman and clerk thereof, his official bond, with three or more sufficient sureties, either in such penal sum as had theretofore been directed by the board, or in a sum not less than double the amount of all money directed by the board to be levied in the county, and to be paid to such treasurer during the year;
“And whereas, the board did, at an extra session thereof, held on the 31st day of March, 1883, direct and require the said Garland, as such treasurer, to execute- and deliver to the board, on or before the 5th day of April, 1883, his official bond, with sufficient sureties, im the penal sum of $50,000, for the approval of said board;- and the said treasurer having on this day presented to-the board an official bond, which is not approved, and the said treasurer having been at all times, since the commencement of said term, without any official bond, as required by law; and whereas, upon an examination of the books of said treasurer, and.an inspection and count of the funds in the hands of said Garland as county treasurer of said county, this day made by the board, the board finds that the said books do not show the actual condition of said office; and it further appearing to the board upon such count and inspection that certain of the funds of said county, to wit, the sum of $1,700, claimed to have been paid by said treasurer in February, 1883, to certain persons, as attorneys and counselors, for retainer fees, without any warrant having been drawn by the direction of the board of commissioners upon him therefor, have been diverted from their proper channel, and expended and taken from the treasury of said county, without authority of law; and that there has been culpable negligence by the said treasurer in the care and keeping of the said public moneys;
“ Therefore, be it resolved by the board of county commissioners, that Willis W. Oarland, county treasurer, be, and he is hereby, removed from his said office; and that the board do forthwith take possession of the books, papers and moneys, and other property of every kind and description, belonging to the county, which has come to the possession of said treasurer by virtue of his said office.”
On the 10th of April, the board appointed one Stower to fill the vacancy.
In relation to the writ of certiorari, the law provides that, “if the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court shall proceed to hear the parties, or such of them as may attend for that purpose; and may thereupon give judgment, either affirming or annulling or modifying the proceedings below.” E. S. 1879, p. 142, sec. 544. It is not claimed, neither does it appear, but that the return to the writ was a full return of all the proceedings of the board relating to the alleged removal and appointment, and must be taken as conclusive and acted upon as true. People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.
The laws of the territory provide that “a county treasurer shall be elected in each county for the term of two years, and shall, before entering upon the discharge of his duties, execute to the board of county commissioners of his county a bond, with three or more sufficient sureties, to be approved by the board, and in such penal sum as they may direct, which bond, with the approval of the boai’d indorsed thereon by their clerk, shall be filed in the office of the county clerk; and in case the board of commissioner’s shall not be in session in time for any county treasurer to present his bond for their approval, as above specified, or he shall he unable, fi’om any cause, to present his bond at any regular meeting of the hoax’d, after due notice of his election, then it may be lawful for such treasurer to present his bond to the chairman and clerk of such hoax’d for their approval; and their approval indorsed thex’eon shall have the same effect as if done by the hoax’d of conxmissionei’s. Axxd in such case, when the board shall not have fixed the penal suxn of such bond, it shall not be less than double the amount of all moneys dix’ected by the board to be levied in the couxrty, and to be paid to the treasurer during the year.” R. S. 1879, p. 497, sec. 433.
“Every office shall become vacant on the happening of any of the following events before the expiration of the term of such office: . . . His refusal or neglect to take the oath of office, or to execute his official bond, or to deposit such oath or bond within the time prescribed by law.” R. S. 1879. p. 523, sec. 554.
“If, at any time, upon the examination of the county treasuries herein provided for, it shall appear to the county commissioners that the books of the'county treasux’ers do not correspond with the amount of funds on hand, or that the said books do not show the actual condition of said office and the funds on hand, or if it shall appear to them that any funds of the county have been embezzled, or diverted from their proper channel, or in any way or manner expended or taken from the treasury without authority of law, or that there is or has been any culpable negligence by said treasurer in the keeping of said books, or the care and keeping of the said public moneys, they are hereby empowered, and it is hereby made their duty, to forthwith take possession of the books, moneys and papers, and other property of every kind and description belonging to the county, or which came to the possession of said treasurer by virtue of his said office, and appoint another in his place.” R. S. 18J9, p. 420, sec. 88.
It does not appear from the foregoing proceedings that the bond of the appellant was ever fixed in the sum of $25,000, or that said sum was not less than double the amount of all moneys directed by the board to be levied in the county and to be paid to the treasurer during the year; and when this does not appear affirmatively, it will be presumed not to have been fixed at all till fixed in the sum of $50,000 on the 31st day of March. It does not appear that the bond in the sum of $25,000 was ever accepted by the board; and on the 31st of March it was refused. By the deposit of the bond required by the statute above cited, section 554, is meant the filing of the bond in the office of the county clerk, with the approval of the board indorsed thereon, or the approval of its chairman and clerk when the board had not been in session in time for its approval, or he had been unable from any cause to present it at any regular meeting of the board. The bond never having been approved, there could not have been such a filing with the county clerk as the law requires. And, further, it does not appear that it was ever filed with the county clerk at all. The bond for $50,000, presented on the 6th of April, was dis approved by the board. There never was, therefore, a sufficient official bond executed by the appellant or deposited with the county clerk as required by law. In such a case the board of county commissioners had full power to declare a vacancy in the office of treasurer.
From the proceedings of the board it also appears that the books did not show the actual condition of the office of the treasurer, and that upon a count and inspection, certain funds of the county, viz., $1,J00 claimed to have been paid out to attorneys as retainer fees, without any warrant having been drawn upon him by direction of the board, have been diverted from their proper channel and expended and taken from the treasury of said county without authority of law, and that there has been culpable negligence- by the said treasurer in the care and keeping of the said public moneys. The above state of facts not only empowered but made it the duty of the board of commissioners to forthwith take possession of the books, moneys and papers, and other property of every kind and description belonging to the county, or which came to the possession of said treasurer by virtue of his said office, and appoint another in his place. Where the governor has power to remove an officer for neglect of duty, he is the sole judge whether the duty has been neglected. Cooley on the Constitution, 4th ed. 138, n. 2.
We are, therefore, of opinion that the settling of the treasurer’s accounts, and finding he had not settled and accounted for moneys of the county, as required by law, and that he had been, and then was, in arrears with the county, and removing him from office, was not judicial; and we have no doubt the general assembly had ample power to authorize the board to act, and it is legal and valid. Walker, Justice, in Donahue v. County of Will, 100 Ill. 94.
The mere presentation of the bond for $25,000, on the 8th of March, was not a compliance with the law in re lation to the execution and deposit of the bond with the county clerk; even if it was, the proceedings of the board show that there was not, upon that day, a legal session of the board. The law required that the commissioners should convene at their regular March session on the first Monday of that month. On that day but one commissioner was present, and no business was transacted. The same was the case on the day following. The session, therefore, had lapsed; and no notice having been given of an extra session, they were not in lawful session upon the 8th of March, when the bond was presented. E. S. 487, sec. 380.
It also appears that upon the 8th day of March the then incumbents of the offices of county commissioners of Ouster county had been removed and other persons appointed to fill the vacancies. 13th Session Laws, 140.
It is claimed that, by virtue of section 457, E. S. p. 501, the appellant had twenty days in which to execute and deposit his official bond, and that the presentation upon the 8th of March was a compliance with its provisions. We have said that this presentation to the board was not a compliance with the provisions of said section 554. We do not, however, think that said section 457 applies to the treasurer. This section is as follows: “Each county or township officer named in this and succeeding article, shall, before entering upon the duties of his office, and within twenty days after receiving official notice of his election or appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond, as provided by law.” The county treasurer is not named in this article. This is a statute whose provisions apply to all, or nearly all, of the officers of a county and townships, and is, therefore, general in its character. Section 433 relates specially to the county treasurer. It will, therefore, control the more general provisions of section 457.
Again, when we consider the provisions of section 433, in connection with the view that it would be opposed to public policy that the treasurer could be twenty days in office without a bond, we do not think that the legislature intended section 457 to apply to the county treasurer. It was not necessary that the appellant should have been notified, or that he should have had an opportunity to be heard before his removal. The statute makés no provision in such cases for a hearing before removal. The record discloses, also, that the appellant was present at the proceedings of the board. People v. Whitlock, 92 N. Y. 191; People v. Fire Commissioners, 73 N. Y. 457.
It is claimed that the order of the court confirming the action of the board was illegal, because upon the 18th of April, when this order was made in the district court of Ouster county, a term of" the district court was being held in Choteau county in the same judicial district. The cases cited, so far as we have examined them, do not sustain this position when applied to the" courts of this territory. They apply to cases such as where there was a statute fixing the times when a term should end, and the cause was tried after that time had expired; and when a term of court was fixed to be held in another county. Bates v. Gage, 40 Cal. 183; Gregg v. Cooke, 7 Peck (Tenn.), 82. Or to a case where the judge of one district, when in another district, composed of but one county, while the judge of the latter district is presiding over and holding his own court, makes an order in relation to a matter pending in the said court. People v. O'Neil, 47 Cal. 109.
Gregg v. Cooke, supra, was overruled in Venable v. White, 39 Head (Tenn.), 582, where it was held that the judgments and decrees of a judge regularly in office are valid when he held his court under color of a law that turned out to be repealed or invalid. The court in that case, by Wright, J., says: “There can be no doubt, whatever, upon reason and authority, that a judgment given by a judge de facto, sitting and holding a court at the proper time and place, is as valid and free of error as a judgment pronounced by a judge rightfully in office.”
■ We know of no law, and there is no order of the supreme court of this territory, fixing the time when a term of court shall terminate. When a court is held in any county ,of the territory by an order of the supreme court, by any of the judges thereof, their proceedings are regular and valid. But however this may be, if the proceedings of either of the courts were invalid, it "would be those in Choteau county and not in Custer county, where the judge of the third judicial district presided. “ Where, by mistake, a law requires court to be held in two places in the circuit on the same day, it is in the discretion of the judge to select which one he will hold, and under this election the proceedings will be valid.” Wells on Juris, of Courts, sec. 134. By holding the court in Custer county, the judge of the third judicial district will be presumed to have elected to hold that court.
The order confirming the action of the board of county commissioners is affirmed, with costs.
Judgment affirmed.
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] |
Wade, C. J.
This is an appeal from an order vacating and setting aside a judgment. On the 10 th day of March, 1883, the complaint in the action wherein the judgment was rendered was filed, and a summons duly issued, which was returned as duly served on the defendant on the 24th day of the same month, and on the 5th day of the following April the clerk, on application of the plaintiff’s attorney, entered a default and judgment against the defendant for the amount claimed in the complaint. On the 26th day of April, 1881, the defendant made a motion at chambers to set aside and vacate said judgment, which motion was set for hearing on the first day of the ensuing term of the district court for said county, and at the October term, 1881, of said court, said motion to vacate a,nd set aside said judgment was granted, and said judgment vacated and set aside. It appears by the affidavits in support of the motion to vacate the judgment, that, immediately after the rendition of the judgment, an execution was issued thereon, pursuant to which certain real estate belonging to the defendant was sold by the sheriff, the plaintiff becoming the purchaser thereof. The period of redemption having expired, and the sheriff being about to execute a deed to the purchaser for the real estate so sold, the defendant commenced this proceeding by motion to set aside the judgment, and caused the sheriff to be enjoined from the execution and delivery of said deed.
The return of the sheriff shows that the summons was served on the defendant on the 21th day of March, which was Saturday, but the affidavits filed in support of the motion conclusively show that the summons was served on the defendant on the 25th day of March, which was Sunday. Whether a summons could be lawfully served on that day or not, we do not now wish to inquire. By the return of the sheriff, it appears that the summons w~as duly served on a lawful day, and the judgment, by the record, is in every way correct and a valid judgment. Besides this, real estate has been sold by virtue of the judgment, and the rights of third persons have intervened, or, at least, additional rights have been created thereby. In such a case a judgment cannot he disturbed except by an equitable action for that purpose, in which there may be an adjudication between proper parties as to the validity of the judgment, and as to whether the party applying for relief has a meritorious defense to the same, and that he has not lost his right by delay, or in any other manner.
This case is to be distinguished from those in which the judgment is simply void, and where no property has been sold under it, and no rights have intervened or come into existence by virtue .of such sale.
The order vacating the judgment is hereby set aside, but the injunction restraining the execution of the deed by the sheriff to the purchaser is hereby continued in full force until the defendant has an opportunity to bring an action to test the validity of said judgment.
Judgment reversed.
|
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] |
Coburn, J.
This is an action brought by the Inter Mountain Publishing Company to recover the amount of the assessments made by the company against the defendant as one of the stockholders. The defendant demurred to the complaint:; the demurrer was overruled, and judgment rendered in favor of the plaintiff for the sum of $100-, the amount of the two assessments. The defendant appeals to this court.
It appears by the complaint that the plaintiff is, and has been for some time past, a corporation organized under the laws of Montana; that, in contemplation of the incorporation of said company, and of establishing and conducting its business, the defendant, with others, on or about the 16th day of March, 1881, became a subscriber to the stock of said corporation by signing and delivering an agreement in writing as follows:
“ We, the undersigned, agree and promise to take and pay for, at the rate of $10 per share, as the assessments may be lawfully made, the number of shares of the capital stock of the Inter Mountain Publishing Company set opposite our respective names.”
That defendant, when he signed this agreement, set opposite to his name the sum of $1,000, which amount he thereby agreed to pay to the company. That after-wards the defendant accepted said stock and paid thereon the sum of $100 upon an assessment and call duly made by the trustees of the company.
That, on the 21st day of May, 1881, the plaintiff, by its trustees, called in and demanded from the stockholders of said incorporation twenty per cent, of all money subscribed by them respectively, and, by such call and demand, required the defendant to pay on his subscription the sum of $200, being twenty per cent, of the amount subscribed by him. It is further averred that, on the 9th day of December, 1881, the trustees made another call, in like manner, for an equal amount, being twenty per cent, of the subscription. That the defendant was duly notified of these calls, and that he has not paid any part of them, and that the plaintiff has performed all the conditions on its part.
It is insisted by the appellant, the defendant below, that this agreement set out in the complaint is not a contract, for the reason that there are no parties to it, the corporation not being in existence at the time. This agreement is in the nature of a promise between the subscribers “to take< and pay for” certain shares in the company when it should be formed, and could only be enforced when it had been legally incorporated. And when it had been organized, then, under proper circumstances, the contract was capable of being enforced.
Among these circumstances is one set out in the complaint, and that is, the ratification of this agreement by the defendant in accepting §1,000 in stock and paying §100 to the company thereon. By this acceptance of ' stock and payment of money, the defendant has placed himself in a position where he cannot deny the existence and validity of the contract of subscription, which is to pay §1,000 upon shares in the Inter Mountain Publishing Company at the rate of $10 a share as the assessments should be lawfully made. In addition, there is a sufficient consideration for this promise.
In a similar case, Athol Music Hall Company v. Corey, 116 Mass. 471-474, the court say: “The corresponding agreements of the other subscribers; the organization of the corporation, and the allotment to the defendant of the shares for which he subscribed, furnish sufficient consideration for his promise to take and pay for those shares. Although his promise was originally voluntary, or in the nature of a mere open proposition, yet having been accepted and acted on by the party authorized so to do, before he attempted to retract it, he has lost the right to revoke. His proposition has become an accepted mutual contract, and is binding upon him as well as upon the corporation.”
In looking at the subscription, it will be seen that it is not for any number of shares, but for $1,000. Is this subscription such an one as the agreement contemplated? By its terms, each share was to be paid for with $10; the promise was to pay this sum, no more and no less, for each share. The act to be performed by the subscriber was to pay money; the act to be performed by the company was to issue and deliver to him the shares which he agreed to take. The essence of the subscriber’s contract was to pay money for shares. When, therefore, he agreed to pay $1,000, he had done the important and essential part incumbent on him in making the subscription. It was, in effect, under the terms of the agreement, subscribing for one hundred shares; these shares being equivalent to the money, and vice versa. His subsequent conduct in accepting the stock confirms this contract of subscription. But if this is a defect, it is the subject of special demurrer only. Moak’s Van Santvoord’s Pl. 756; Richards v. Edick, 17 Barb. 260.
A further objection is made to the complaint that it does not allege the number of shares into which the capital stock of the corporation was divided, and that the whole number of shares had been subscribed for. It does not appear in the contract that the subscription was made upon the condition that a certain number, or all, of the shares should be subscribed for before calls could be made. At the time of making the contract the number of shares had not been determined; but it is to be presumed that this had been done at the time of the organization, inasmuch as the averment is found in the complaint and admitted by the demurrer, that the plaintiff was a corporation legally organized. And the payment of an instalment by the defendant without objection is a sufficient recognition of the legal existence of the corporation to .enable it to recover subsequent assessments. The acceptance of the stock and the payment of the assessment thereon is a waiver of the objection that otherwise might have been urged upon the ground that all the shares had not been taken, if such was the fact. See Thompson’s Liability of Stockholders, sec. 120.
The appellant further insists that the complaint is defective in not alleging that the assessment made on the 21st day of May, 1881, of twenty per cent., was the only assessment or call made during that month; since the statute (E. S. sec. 251, p. 452) provides that not to exceed twenty per cent, in any one month shall be called in upon any subscription from the stockholders. As to this, it is to be presumed that the plaintiff acted in accordance with the law, and within the scope of the authority conferred by the statute. The defendant would, in such a case, have equal knowledge with the plaintiff of the facts, and if more than one call had been made in the month of May, that was a proper matter of defense.
We think the demurrer was properly overruled.
Judgment affirmed.
|
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] |
Galbraith, J.
The defendant was indicted for and convicted of the crime of murder in the first degree for the killing of one Andrew Sjobeirg. The testimony in the case shows that on the night of the 4th of February, 1883, being the night upon which the homicide is alleged to have been committed, the deceased, the defendant, and two other persons, Peterson and Johansen, slept in a shanty in Rocky canon, Gallatin county. The evening previous to the homicide, Johansen and the defendant were quarreling with the deceased. It would appear that the defendant- and Johansen were the assailants. Johansen’s enmity to the deceased would appear from the testimony to have arisen on account of a previous trouble which had taken place between the deceased and Johansen’s brother, and defendant’s cause of quarrel was in relation to a settlement of an indebtedness claimed to be due from deceased to defendant and Peterson. Johansen struck the defendant two or three times with his hand. When the deceased attempted to leave the cabin, the defendant threw him back into the cabin two or three times. During this altercation the defendant remarked' that he (the defendant) would make “his pain short before morning.” But the witness who testified to this threat did not know at the time to whom it referred, but supposed afterwards that it referred to the deceased. Johansen also remarked, on the day previous to the homicide, in a conversation relating to the deceased, ‘c If he comes back again to-night, I’ll fix him.” They went to bed about 10 o’clock at night; Johansen and the defendant sleeping in the same bed, and the deceased and Peterson sleeping in separate beds. The only witness who connected the defendant with the homicide was Peterson. He testified that about 2 or 3 o’clock at night the deceased got up and went outside, being gone two or three minutes; that while he was out the defendant got up and lit the candle. The deceased, when he returned, blew it out, and went to bed. The defendant went back to his own bed, and after the deceased laid a little while, he asked the defendant to “come and put the blankets on him,” and then the defendant went up and took hold of the blankets and shook them around a little, and then “I saw he had a knife in his hand, and cut the deceased in the neck. He cut him right on the left side of the neck. He only exit him one time. I was laying in bed, and Johansen was in bed, and after he cut him the defendant went back to his bed. There was no light in the house, but the deceased was laying right beside the window, and I heai’d the blood running. In the morning I saw the blood, and told the defendant to come and look, and he reached over and took the knife that was lying inside the mat between him and the wall, and said: “Now you see this scrub; that the knife belonged to the deceased, and has laid there and cut himself.’ ” The witness Peterson also testified that the deceased, a very short time before he died, which was about Y o’clock in the morning, asked for a cup of coffee; that the night upon which the homicide was committed was a moonshiny night, and that at 10 o’clock the moon was about mid-heaven, and was shining brightly, so- that he could see plainly in the house, though the door was shut. He also testified that he made no statement to the coroner at the cabin, and was not examined, and did not testify for fear of the defendant. In answer to the question, ‘ ‘ Do you know how this man was killed? ” he said he thought he was killed, but did not say by whom. He admitted that he told the coroner, the next day after the homicide, that the deceased had committed suicide, and that he so testified before the coroner’s jury. He also testified that he did not say before the coroner’s jury that" he “did not know whose knife it was with the blood on it.” The bunk upon which the deceased lay when the hoxnicide was committed was about three feet from the window, which contained four small lights of glass. Two knives were found in the bunk where the deceased slept; one was open, and the big blade and the knife was all bloody. The other knife was not bloody. The surgeon testified that he found a wound in the throat of the deceased about three and a half or four inches in length, and two and a half or three inches in depth, severing the windpipe, the jugular vein and the carotid artery, and that, in his opinion, he died from hemorrhage from the wound in his neck, and that a person who had received such a wound could not possibly live over thirty minutes; also, that it would be impossible for a man, after laying three or four hours with such a wound, to articulate. The evidence showed that, at 2 o’clock P. M. the next day after the homicide, it was so dark in the cabin, with the door open, that a candle had to be lighted to remove the corpse.
A witness testified as follows: “We went into the cabin first, and had to light to see.” Another witness testified as follows: “ I went into the cabin, arid the room was so dark I couldn’t see who it was. It might have been a negro, and I wouldn’t have known the difference.” It was shown by the testimony that the moon would not be visible on the night of the alleged homicide in that locality until nearly 6 o’clock in the morning. The coroner testified that the witness Peterson was asked before the coroner’s jury whose knife it was that had the blade open, and he answered that he did not know; that Peterson .said at the cabin that the man had committed suicide, and that this statement was made by him before the coroner’s jury two or three times, and that he repeated the assertion after being arrested.
It appears from the above evidence, therefore, that Peterson, who alone testified to the fact of the killing, is contradicted by his statement made out of court at different times within two or three days after the homicide, and also by the testimony before the coroner’s • jury, under oath, wherein he also stated that the deceased had committed suicide. The testimony of the witness as to his seeing the act of killing is rendered improbable in view of that portion of the evidence which shows that in the day-time the cabin was so dark that a witness could not distinguish a man in it, so as to determine whether he was white or black, and that the coroner and his jury were compelled to light a candle to see where the deceased was lying. The weight of the testimony of this witness is also seriously affected in that he testified that the deceased was wounded about 2 or 3 o’clock at night, and was alive about 7 o’clock the next morning, and asked for a cup of coffee, while the evidence of the surgeon shows that, in his opinion, a person with such a wound could not possibly live over thirty minutes, and that it would be impossible for a man, after lying three or four hours with such a wound, to articulate. His testimony that the night upon which the alleged homicide took place “ was a moonshiny night,” and that, at 10 o’clock, “the moon was about mid-heaven,” and was shining brightly, so that he could see plainly in the house, though the door was shut, is contradicted by the evidence, which shows that, upon that night, the moon was invisible, and did not rise until between 5 and 6 o’clock in the morning. He was also contradicted in relation to his statement in his examination, that the knife belonged to the deceased, by his testimony before the coroner’s jury that he did not know to whom the knife belonged. Under this contradictory and improbable state of the testimony of this witness, who alone testified to the act of killing, and connected the defendant with the homicide, we cannot say that the testimony excludes every reasonable doubt as to the guilt of the defendant. Such testimony cannot convince to a moral certainty, which is the. certainty required in a criminal case.
The judgment is reversed and the cause remanded for a new trial.
Judgment reversed.
(All the judges concur.)
|
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] |
Wade, O. J.
The plaintiff moves the court to dismiss the appeal herein for the reason that no notice of appeal was served upon the clerk as the statute requires, and that the transcript was not filed within the time provided by law. Our statute provides that an appeal in a criminal case is taken by the service of a notice upon the clerk of the court where the judgment was entered, stat ing that the appellant appeals from the judgment. If taken by the defendant a similar notice must be served upon the attorney prosecuting. Appeals are matters of statutory regulation. There must be a substantial compliance with the statute in order to confer jurisdiction upon the appellate court. The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court. Courtright v. Berkins, 2 Mont. 404.
An appeal can only be taken from the district court to the supreme court by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. Unless the notice is served there is no appeal. A notice directed to the attorney prosecuting, and served upon him and filed with the clerk, is not the service of notice upon the clerk. The clerk is not presumed to know the contents of papers filed with him, addressed to other persons, and of which he is simply the custodian. The times at which, and the successive order in which, the several steps are to he pursued to take and perfect an appeal, are distinctly prescribed by statute, and must be observed; otherwise, the appeal must fail. Aram v. Shallenberger, 42 Cal. 275.
It follows, therefore, that the failure of the appellant to serve a notice of appeal upon the clerk of the court where the judgment was rendered is fatal to the appeal, and the appellate court, in the absence of such notice and service, acquires no jurisdiction of the case. As to the time when the transcript should be filed, if the appeal has been properly taken by a substantial compliance with the statute, and the lower court has thereby lost jurisdiction of the case, and the appellate court has acquired jurisdiction as in such case it would, then the matter as to the time when the transcript should be filed is directory and not mandatory. And the case of Territory v. Flowers, 2 Mont. 392, is affirmed. The appeal is dismissed.
(All the judges concur.)
|
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Wade, C. J.
This is an indictment for burglary in the day-time, drawn under a statute of the territory, which provides that “Every person who shall break and entpr into any dwelling or other house, with the intent to commit murder, rape or robbery, or any other felony, in the day-time, shall be deemed guilty of burglary ” (R. S. 365, sec. 70); and, upon conviction thereof, the offender is subjected to punishment by imprisonment in the territorial prison for a period not less than two nor more than ten years. The statute of the territory further provides that “Crimes which do not subject the offender to imprisonment in the territorial prison, or to death, shall be classed as misdemeanors; crimes which subject the offender to imprisonment in the territorial prison, or to death, shall be classed as felonies.” R. S. 287, sec. 4. Every person who shall feloniously steal, take and carry away the personal goods or property of another, of the value of $50 or more, shall- be deemed guilty of grand larceny, and, upon conviction thereof, shall be punished by imprisonment in the territorial prison, etc. If the goods so stolen are of less value than $50, the offender is deemed guilty of petit larceny, and, on conviction, is subjected to punishment in the county jail. R. S. 366, secs. 72, 73.
The indictment in question charges “That the defendant did, on or about the 1st day of August, 1882, at the town of Deer Lodge, in the said county of Deer Lodge, Montana territory, about the hour of 4 o’clock, in the day-time of the said day, with force and arms, at the said town, county and territory aforesaid, the dwelling-house of one Eli D. Holland, situate on the west of B street, in the said town of Deer Lodge; in the county of Deer Lodge, Montana territory, then and there occupied by one Annie Burnett, then and there unlawfully, wilfully, feloniously and burglariously did break and enter with intent, the goods and chattels of one Annie Burnett, in the said dwelling-house then and there being, then and there unlawfully, wilfully, feloniously and burglariously to steal, take and carry away; and that the said James Duncan did then and there enter the said dwelling-house, with intent to commit the crime of grand larceny, contrary,” etc.
There was a motion in arrest of judgment, for the reason that the facts stated in the indictment do not constitute a public offense under the laws of the territory, which was overruled and judgment entered upon the verdict, from which the defendant appeals to this court. This appeal properly brings the indictment here for review.
The indictment must at all times support the judgment, and the question whether it does, or not, may be raised in this court for the first time. The statute under which this indictment was drawn, makes it burglary to break and enter a dwelling-house in the day-time, with intent to commit a felony. It is felony, by the terms of our statute, to steal personal property of the value of $50 or over. This indictment charges that the defendant broke and entered the dwelling-house named, with intent to steal the goods and chattels of one Annie Burnett, but it does not describe the goods and chattels, or give their value. It is not a felony and it is not burglary, under this statute, to break and enter a dwelling-house in the day-time, with intent to steal goods and chattels of less than $50 in value. There is no allegation contained in the indictment under which any proof of the value of the goods might have been submitted, whereby it could have been determined whether the breaking and entering was done with intent to commit a felony or a misdemeanor. The breaking and entering of a dwelling-house with intent to steal goods and chattels is not a breaking and entering with intent to commit the crime of grand larceny. Therefore, an indictment under this statute for burglary is insufficient, which charges, merely that the breaking and entering was done with intent to steal goods and chattels. Such an allegation does not show an intent to commit a felony, or the crime of grand larceny, which is a felony. If the intent falls short of a felony, then the breaking and entering of a dwelling-house in the day-time is not burglary, under this statute.
' In the case of The People v. Murray, 8 Cal. 520, the court says: “ The fifty-eighth section of our statute concerning crimes and punishments says: ‘ With intent to commit murder, robbery, rape, mayhem, larceny or other felony.’ And felony is defined to be a public offense, punishable with death or by imprisonment in a state prison, and is, therefore, a felony, while petit larceny is not a felony.
“It is clear from the fact that all the offenses specified in the fifty-eighth section can be nothing but felonies— except the crime of larceny — and from the further fact that the expression ‘ or other felony ’ is used immediately after ‘larceny,’ that the legislature intended that the intent to commit a felony must exist in the mind of the prisoner to make the offense complete. To charge a party, therefore, with breaking and entering a dwelling-house, with intent to steal the personal goods of another within the house, without specifying the value of the goods intended to be stolen, is not sufficient. The language of the legislature is too clear, under the well-known rules of construction applicable to criminal statutes, to admit of doubt. It is true that, under the construction we are compelled to give the statute, the breaking and entering a dwelling-house with intent to commit petit larceny may be no statutory offense. But this is an omission which must be provided for by the legislature.”
In the case of The People v. Stickman, 34 Cal. 245, speaking of the statute under which - the foregoing decision was rendered, the court says: “This statute was amended, in 1858, so as to include the case of an intent to commit petit larceny, which it did not previously do.”
But the statute we are considering requires no construction to make it appear that the legislature intended that the intent to commit a felony must exist in the mind of the prisoner to make the offense complete, for it declares that the breaking and entering must be done with intent to commit murder, rape, robbery or other felony, in order to constitute the crime of burglary in the day-time.
3. The indictment also charges that the defendant “did, then and there, enter the said dwelling-house with the intent to commit the crime of grand larceny.” This averment is a mere conclusion, and it is a conclusion not based on any facts alleged. The elements that enter into and constitute the crime of grand larceny are not averred, and, in the absence of such averments, we know of no principle that would authorize proof of facts that enter into the crime, or that would show an intent to commit the same. The allegation and the proof must correspond, but there could be no proof of a mere conclusion of law. There could be no proof of an intent to commit the crime of grand larceny in the absence of any averments as to the property intended to be stolen, or the value thereof. It is for the court to say, from the facts alleged, whether the intent to commit the crime of grand larceny existed or not. It would not do to charge that a defendant committed the crime of murder, and then call a witness to prove this conclusion; and, for the same reason, it is insufficient to so allege, when it is attempted to charge him with an intent to commit the offense. In either case, the facts that constitute murder, or an intent to commit murder, must be alleged before there could be any proof of the crime. Says Mr. Bishop, Crim. Proc. vol. 2. sec. 142 (3d ed.), “Simply to mention the name of the intended felony, as ‘larceny,’ or ‘rape,’ with no more, appears to be deemed, by most judges, not sufficiently minute, though some hold it adequate.” Lee v. The State, 56 Ga. 477; The State v. Williams, 41 Tex. 98; People v. Shaber, 32 Cal. 36; Wicks v. State, 44 Ala. 398.
The decision in the California case, which holds that it is sufficient to mention the name of the intended felony, was by a divided court, and the dissenting opinion by Judge Sanderson, in which he says: “It is not sufficient in any indictment for burglary to allege the intent to be ‘to commit larceny,’ or ‘to commit rape,’ or ‘to commit murder,’ as the case may be, and there stop. The offense intended must be described, or, in other words, the acts which the defendant intended to commit, after having effected an entrance into the building, must be described for the purpose of showing what the intent was. This is but a familiar principle in every system of pleading, either civil or criminal. - The facts are to be stated, to the exclusion, of conclusions of law to be drawn therefrom. Where an intent to commit an offense is to be charged, there is as much necessity for describing the offense intended as there is where the commission of the offense is charged directly. It is not for the pleader to say whether the acts intended amount to larceny, rape or murder, but for the court, and the acts, therefore, which constitute the one or the other must be alleged.” We consider this as conclusive of the question and in accord with the fundamental principles and analogies of the law.
In the case of The State v. Williams, supra, the court says:-“The indictment is, however, defective in this: that while it charged an unlawful entry into the dwelling-house of Eachel Puffin, it failed to charge that such an unlawful entry in the night-time was with the felonious intent to commit such a crime as would make the unlawful entry of the accused a burglary. The indictment was intended so to charge, but its averments fall short of the intentions of its framer. While it charges the accused with having entered the premises with the felonious intent to commit the crime of rape upon the person of Eachel Pullin, it fails to describe the offense intended to be committed. The mere word ‘ rape ’ is insufficient to describe it.”
The conclusion seems clear that, under our statute, where, in order to constitute the crime of burglary in the day-time, there must be a breaking and entering with intent to commit a felony, the facts which make up the constituent elements of the felony, and which show the intent to commit the same, must be alleged in the indictment.
The judgment is reversed and the cause remanded for. a new trial.
Judgment reversed.
|
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] |
Wade, O. J.
This is an action by respondents to quiet their title to a certain piece and parcel of land known as the Camanche quartz mining claim, a part of which is claimed by appellants, under and by virtue of their location of the Smelter mining claim. The facts, as they appear by the special findings and the testimony, are in substance as follows:
The Camanche claim was located January 19, 1879. The discovery shaft of the Camanche was within the limits and boundaries of the Shannon claim, as surveyed and patented at that time. At the time of the location of the Camanche claim, there had not been any discovery of a vein or lode within its limits, but in running a tunnel on the claim, between the months of December, 1881, and the last of February, 1882, a vein or lode of quartz or rock in place, with one well-defined wall bearing silver or other precious metals, was discovered within the boundaries of said Camanche claim and outside the boundaries of the Shannon claim. The location of the Smelter claim, which covers and includes a portion of the Camanche claim — the ground so included being the property in dispute in this action — was subsequent to the discovery of said vein or lode in the tunnel of the Camanche claim.
Upon this state of facts the appellants asked the court, among others, to give the following instruction to the jury, viz.: “If the plaintiffs did not discover, at the time they made their location, a mineral-bearing vein, with one well-defined wall, upon ground subject to location, you should find for defendants. In other woi’ds, if the plaintiffs discovered, at the time they made their location, their vein upon land belonging to Charles K. Larrabie or any one else, then the jury, if they so find from the evidence, should find for the defendants.” The court refused to give the instruction, and upon this refusal is based one of the errors complained of.
The Camanche mining claim was a location without a discovery. At the time the location was made, there had been no discovery of a vein or lode within its limits or elsewhere. The location seems to have been made by virtue of a shaft sunk within the boundaries of the Shannon, which was a patented claim, but no vein or lode had been discovered in the shaft at the time of the location, and if there had been, it would have been a discovery upon grounds belonging to other persons, and, therefore, could not have authorized a location; but about two years subsequent to the location, and before the location of the Smelter claim, a discovery was made in a tunnel on the Camanche claim, and outside of the Shannon boundaries, which discovery, respondents contend, validates the Camanche location.
This theory of respondents is based upon an instruction given to the jury in the case of The Jupiter Mining Company v. Bodie Consolidated Mining Company, by Judge Sawyer in the circuit court of the United States (11 Fed. Eep. 676), as follows: “I instruct you further, that if a party should make a location in all other respects regular, and in accordance with the laws and the rules, regulations and customs in force at the place, at the time, upon a supposed vein, before discovering the true vein or lode, and should do sufficient work to hold the claim, and after such location should discover the vein or lode within the limits of the claim located, before any other party had acquired any rights therein, from the date of his discovery, his claim would be good to the limits of his claim, and the location valid.” This instruction, if it is the law, would be applicable to a case where a person enters upon the public mineral lands and discovers what he supposes to be a vein or lode, and makes a location by virtue of such discovery before he has discovered the. true vein or lode, and subsequently, and before any other person has acquired any rights, makes such discovery. Such a case would differ in many respects from the one under consideration.
In this case the appellants, without any right or authority, and as mere trespassers, entered upon the Shan non. mining claim, which had been patented, and was held and owned as private property in which the government had no interest, and which was in no sense public land, and sunk a shaft within the boundaries of such claim, and without any pretense of having made a discovery therein, upon a supposed vein or lode, and simply by virtue of a hole in the ground upon the private property of another, made the location of the Camanche claim. The question is, whether such a location becomes valid by the subsequent discovery of a vein or lode within the limits of the claim located?
A discovery within the boundaries of the Shannon claim would not authorize or support the location of the Camanche claim outside of such boundaries. The discovery must be within the limits of the claim located, and must have been made on the public mineral lands. A location without a discovery does not carry with it a grant from the government to the exclusive possession and enjoyment of the ground located, nor does such a grant attach or belong to a discovery alone. The right to so possess portions of the public mineral lands as that the right to purchase attaches thereto, comes alone from a discovery and location in pursuance of law. If a discovery is made, the right of location follows.
“ A location is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations.” Belk v. Meagher, 104 U. S. 284.
If, by the law, something remains to be done before the declaratory statement or notice of location can be recorded, then there is no valid location. “ A location to be effectual must be good at the time it is made.” Id. 285. The grant of the government does not attach unless the location has been made in pursuance of law. The act of congress authorizing the exploration and purchase of the public mineral lands provides (sec. 2320, R. S. U. S.) that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. The discovery thus becomes a condition precedent to the location.
Recording the notice or declaratory statement in the proper county is one of the acts of location; but the statute of the territory provides that, before such a record can be made, there must have been a discovery of a vein or lode of quartz or ore, with at least one well-defined wall. R. S. 590, sec. 874. In the case of Hauswirth v. Butcher, 4 Mont. 307, we held that before there can be a valid location there must be a discovery. Van Zandt, Trustee, v. Argentine Mining Co. 2 McCrary, 159.
If, as held by the supreme court of the United States in the Belk Case, supra, a location to be effectual must be good at the time it is made, it follows that a location void at the time it is made, because of no discovery, or because the discovery was made on a claim already located and patented, continues and remains void; and is not cured or made effectual by subsequent discovery on the claim located. The statute does not permit a location and then a discovery, but in all cases the discovery must precede the location. We cannot do away with the express language of the statute, and hold that there may be a valid location of a mining claim before there has been a discovery on the claim located. And, especially, we cannot maintain a location made by virtue of a shaft sunk on the patented claim of another person. If, subsequent to the location of the Camanche claim, a discovery was made thereon, then was the time to have made a valid location of the claim.
It is immaterial to this inquiry whether the Smelter location was valid or not. This is an action to quiet the title of the respondents,.and they must show a good title. This view of the case renders it unnecessary to discuss the other questions presented in appellant’s brief.
The judgment is reversed and cause remanded for a new trial.
|
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Wade, 0. J.
When this action was called for trial it was found, upon the preliminary examination of the jurors as to their qualifications to serve as such in the case, that several of them were residents of Silver Bow county, that county having been created and formed out of Deer Lodge county after the jurors had been drawn and summoned for the then pending term of the district court for the county of Deer Lodge. Thereupon the court ordered that the panel of jurors be filled under, and by virtue of, a provision of the statute, which provides that if, for any reason, the panel of trial jurors shall not he full at the opening of the court, or at any time during the term, the clerk shall, under the direction of the court, draw from the box furnished by the county commissioners, as provided by law, so many additional names as the court shall direct, to fill such panel, who shall be summoned in the same manner as the others, and, if necessary, jurors may continue to be drawn and summoned, from time to time, until the panel shall be filled. Laws Twelfth Session, 58. Thereupon the defendant challenged the entire jury, upon the ground that he had the right to have a full panel drawn, as provided by law, from Deer Lodge county, and had the right to elect from the old panel.
The objection was properly overruled. The defendant was provided with a jury in the manner required by the law, and he had no cause to complain. It is wholly immaterial for what reason the panel becomes exhausted before the jury is full. Whenever that event occurs, the court is clothed with authority to provide a competent jury-
After the jury had been formed and pending the trial, the plaintiff asked and obtained leave to amend his complaint, and thereupon a jury was waived, and the cause was tried to the court by consent of the parties. This action of the parties would have cured any defect in the formation of the jury, if there had been any, and renders the bill of exceptions, as to the manner in which the jury was obtained, sham and frivolous. The defendant, however, demurred to the amended complaint filed by the plaintiff, for the reason that the same is ambiguous and uncertain, for that said amended complaint does not name the person who commenced the original action, and shows that it is not the same plaintiff. The original complaint is not contained in the record. The amended complaint was filed upon leave of court, and appears to be in pi’oper form. There is nothing to show that there had been any change of plaintiffs; on the contrary, the amended complaint shows that the plaintiff in the amended complaint is the same person that filed the original complaint. There is nothing contained in the record to authorize or justify the demurrer, and it was, undoubtedly, interposed for the purpose of delay. This appeal seems to have been taken for the same purpose, and the case is clearly within the twenty-third rule of court, wrhich provides that, in any case, if the court is satisfied, from the record, that' the appeal was taken for delay, such damages shall be awarded as may, under the circumstances, be proper, and as shall tend to prevent the taking of appeals for delay. Sup. Ct. Rules, No. 23.
The judgment is affirmed, and it is ordered and ad judged that the plaintiff recover of the defendant the sum of $100 damages, hereby awarded under rule 23 of this court.
Judgment affirmedK
|
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Wade, C. J.
This is an appeal from a judgment in favor of the respondents, rendered on the pleadings. The complaint alleges that on the 12th day of January, 1881, Morrison and Eiggs were indebted to the respondents in the sum of $885.10, upon a certain promissory note executed by them on that day, payable to the order of the respondents, on or before the 1st day of January, 1882, together with interest thereon at the rate of two per cent, per month from the 1st day of March, 1881, until paid; that to secure the payment of said note according to the tenor thereof, said Morrison and Eiggs executed to the respondents a certain indenture of mortgage upon, among other property, the personal property described in the complaint, conditioned for the payment of said note when the same became due, which mortgage was duly acknowledged and recorded; that on the 12th day of February, 1881, the defendant Edwin A. Kenney, sheriff of Missoula county, at the instance and request of the defendants Albert Kleinschmidt and Keinhold Kleinschmidt, seized and took into his possession all the personal property described in the complaint and included in said mortgage, uj>on a writ of attachment issued in an action by said Albert and Keinhold Kleinschmidt, against said Morrison and Kiggs, and that said property so seized was of the value of $1,200; that on the 27th day of November, 1882, the respondents recovered a judgment and decree of foreclosure of said mortgage; that the property included in the mortgage, and not so seized on said attachment, was sold under and by virtue of said decree, upon which there was realized the sum of $577.90, leaving due and unpaid on said note and mortgage the sum of $1,020.85, for which sum the respondents asked judgment. A copy of the note and mortgage are attached to, and made a part of, the complaint. The defendent Kenney made default, and Albert and Keinhold Kleinschmidt filed their separate answer, and denied that the property mentioned in the complaint was of any greater value than $912, and justified their seizure of the property, and the sale of the interest of Morrison and Kiggs therein, under and by virtue of an attachment issued in their action against them, and a sale upon execution issued on a judgment in their favor against said Morrison and Riggs. The defendants deny that they ever took said property; but admit, because they do not deny the allegation of the complaint, that Kenney, the sheriff, seized the property at their instance and request. There was a motion for a judgment, by plaintiffs, for the sum of $912, the value of the property as admitted in the answer, which motion was granted. The mortgage contained the following condition: “And it is further agreed by and between the parties hereto, that all the personal property herein mentioned and described shall be and remain in the possession
of and under the control of the said parties of the first part, until the maturity of said promissory note, and default made in the payment of the same, upon the following conditions: That said parties of the first part shall not dispose of said property, or any part thereof, or remove the same, or any part thereof, from said Missoula county, or suffer the same to be removed, or allow the same or any part thereof to be taken from their posses-, sion by legal process, or otherwise; and any violation of any of the foregoing conditions will authorize the said parties of the second part and their assigns to take immediate possession of the whole of said personal property and hold the same.” These- conditions were valid and legal and protected the property included in the mortgage against the claims of the general creditors. When any of the conditions were broken the title of the property vested in the mortgagees. And so, when the property was seized by attachment, and the mortgagees allowed and permitted the same to be taken from their possession thereon, the right to the possession thereupon at once vested in the mortgagees, the respondents herein, and the mortgagors were thereby divested of any attachable interest in the property. The mortgagees thereby became entitled to the possession of the property, and the sheriff had no right to attach the same, for the reason that he had no right to the possession of the property. The taking being wrongful, no demand was necessary before bringing this action.
The judgment is affirmed.
|
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] |
Galbraith, J.
This is an appeal from an order of the court reversing and disallowing the act of the board of county commissioners of Madison county in allowing and ordering the payment of certain accounts of August Jessen, county clerk, for work done by him for the said board, and also from the judgment rendered by the court, which was for the appellant.
The accounts were as follows:
“ Va. City, March 9, 1882.
“ Madison County, Dr.,
“ To August Jessen,
To indexing commissioners’ journal, 590 indices, at 15........ $88 50
To statement rendered United States marshal and correspondence....................................................... 20 00
To listing warrants, vouchers, etc., returned by treasurer..... 25 00
To adding tax collection of county treasurer.................. 60 00
$193 50
“I solemnly swear that the above account is true and correct and wholly unpaid.
“August Jessen, County Clerk.
“ Sworn and subscribed to before me this 9th March, 1882. L. C. Dahler, Chairman.”
“ Va. City, March 9, 1882.
“Madison County, Dr.,
‘ ‘ To August Jessen,
To making out financial statement for the year 1881..........$285 10
“ I solemnly swear that the above account is just, true and wholly unpaid. August Jessen.
“ Subscribed and sworn to before me this 9th March, 1882. L. 0. Dahler, Chairman.”
The agreed statement of facts shows “that the services set forth in the above accounts were rendered by August Jessen, and were reasonably worth the amount charged therefor; that the board of county commissioners caused the work to be done, and contracted with August Jessen to do the same for the sums charged therefor in said accounts; that the above bills were audited by the board of county commissioners, allowed, and paid by warrant on the general fund of the county; that the bill for making out financial statement for the year 1881 is for the labor of making out a report of the receipts and expenditures for the year 1881.”
Id relation to the first three items of the first account, it is evident from an examination of the law relating to county officers that the labor mentioned therein, for which extra compensation is charged, is comprehended within his general duties as clerk of the board of county commissioners, and for which he receives the compensation provided by section 370 of the general laws (Revised Statutes of 1879, p. 485).
Section 385 of article 4, chapter 16, of the general laws (Revised Statutes of 1879), constitutes the county clerk clerk of the board of county commissioners.
Sections 366 and 387 of the same chapter require: “ that the county clerk shall . . . keep a record of the proceedings of said board in a book as required by law, under the direction of said board of commissioners.”
The journal referred to in this item is evidently the record intended by the last named section. Such a record is not complete without an index. An index is properly a part thereof, and the making of the same within the prescribed duties of the clerk of the board.
The second item, which evidently refers to an account of some kind with the United States marshal, we think comes within the provision of the second paragraph of section 472 of article 12, chapter 16, of the general laws (Revised Statutes of 1879, p. 504), by which it is made the duty of the clerk of the board of county commissioners “to adjust accounts between the county and all persons, bodies politic and corporate, chargeable with moneys payable to or receiving moneys therefrom.”
The third item comes within the provisions of paragraphs 1 and 2 of section 472 of article 12, chapter 16, of the general laws (Revised Statutes of 1879, p. 504), ■which provides that it shall he the duty of the clerk of the board of county commissionei’s to keep regular accounts with the county treasurer, and to file and preserve in his office all accounts, vouchers, and all other papers pertaining to the settlement of any accounts to which the county shall be a party.
An account properly kept with the county treasurer as required by the above provision ought to include a list of warrants returned by him.
In relation to the last item of the first.account, and the second account, which contains but one item, we are at a loss to determine to what provision of the statute they may be assigned. It would seem, however, that the item contained in the second account is for services rendered in compliance with section 314 of article 2, chapter 16, of the general laws, by which it is made the duty of the several boards of county commissioners, transacting county business in the several counties of this territory, at the regular spring term of their respective sessions in each year, to make out a full and complete statement of the amount of debt due by their counties, and a detailed account of the receipts and expenditures of the same for the preceding year, showing from what officer received, and to what individuals and on what account any money has been paid; and shall strike a balance, showing a deficiency, if any, and the balance in the treasury, if any. Both these last items would not be included in the duties to be performed by the clerk, and would properly be included in those services for which he would be entitled to compensation under section 310 of the last named article of the general laws, were it not for the express provisions of an act entitled “An act in relation to the fees of county clerks,” contained in the Revised Statutes, page 6, of the laws enacted at the extraordinary session of the eleventh legislative assembly, which provides for a salary to be paid to the county clerk, and that such salary “shall be the only compensation said clerks . . . shall receive for all services required by law of them to be performed for any county, ... or for which any county . . . is liable or responsible; nor shall any county . . . pay to said clerks . . . any other compensation than herein provided.”
This act was passed and was in force at the time the services set forth in all the items contained in both accounts were performed. The intention of the act was to make the salary paid to the county clerks a compensation in full for all services rendered by them to the county in any manner whatever. Not only is the salary a compensation in full for all such services, but the county is expressly prohibited from paying any other compensation to the clerks whatever.
The above act applies to all the above items contained in both the accounts.
The board of county commissioners could not, therefore, lawfully allow or order the payment of the sums demanded in the above account, or any of them.
The judgment and order of the court below is affirmed.
Judgment affirmed.
|
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] |
Coburn, J.
This is a proceeding in equity by the appellants, Wells, Fargo & Co., who are the owners of a judgment against one of the defendants, Clarkson, rendered in their favor, to have this judgment set off against a judgment rendered in favor of Clarkson against them, and by Clarkson assigned to the defendant McGrregor, who procured an execution thereon and placed the same in the hands of the other defendant, Powers, for collection. The plaintiff seeks, in addition to the judgment of set-off, to have the defendants enjoined from further proceedings on their judgment. The case was tried below by the court, and the following are the special findings of fact:
1. That on the 19th day of June, 1867, the defendant, John M. Clarkson, herein, commenced an action for damages against the plaintiff; and on 10th day of July, 1868, recovered a judgment therein; all of which will appear by the judgment and pleadings in the case.
2. That, on the 13th day of December, 1867, the plaintiff in this action commenced an action against Drake, Clarkson & Co., of which firm said defendant herein, John M. Clarkson, was a member, in which action there was, on the 4th day of January, 1868, an amended complaint filed, and to which amended complaint there was an answer filed on the 13th day of the month last aforesaid, which action was based upon certain notes and accounts, marked exhibit D, upon which pleadings and issues there was, on the 26th day of October, 1868, a judgment duly rendered in said cause, which appeal’s by the pleadings and judgment.
3. That, on the 10th day of July, 1868, the attorneys for said Clarkson duly filed their lien as such upon the said judgment so .recovered by him against the said Wells, Fargo & Co., which lien was, on the 19th day of November, 1868, duly paid, and a receipt duly given therefor, which lien and sum paid and receipted for amounted to $2,500.
4. That, on the said 10th day of July, 1868, the day of the rendition of the judgment in favor of said Clarkson against Wells, Fargo & Co., the said Clarkson duly assigned and transferred to the defendant herein, Archibald McGregor, one-half of the judgment so recovered by him, which was duly copied into the judgment docket of said court.
5. The said McGregor, before taking said assignment, hada demand "against said Drake, Clarkson & Co. for the amount specified therein; that he examined the books, papers and accounts of said firm, after its failure and before taking- said assignment, in order to ascertain what, if any, the company owed Wells, Fargo & Co., and that there did not appear on said books, papers or accounts to be anything owing or coming to said Wells, Fargo & Co., nor had he any notice that Clarkson, or Drake, Clarkson & Co., were indebted to said Wells, Fargo & Co. in any sum at the time of taking said assignment. That, after taking said assignment, he notified R. F. Gillespie, who was the agent of Wells, Fargo & Co., thereof, on the day it was taken, and also notified, on said day, the attorneys of Wells, Fargo & Co. of such fact, and that said Drake, Clarkson & Co. failed in July, 1868.”
The following finding as to the law was made, viz.: “The court finds, as matter of law arising upon the findings of fact, that’ the judgment of plaintiff against Clarkson cannot be set off against the judgment now-held by McGregor against plaintiff, and judgment for the defendants is ordered accordingly.”'
It appears by the judgment roll, in the case of Wells, Fargo & Co. v. Drake, Clarkson & Co., that, upon the trial by the court, in the findings, the plaintiffs were allowed to dismiss their action as to all the defendants except John M. Clarkson, who alone had been served with notice, and judgment was thereupon l'endered in their favor against him alone for $2,673.38, upon the 26th day of October, 1868, as above stated.
This is the judgment which the plaintiffs seek to have set off against the balance which remains unpaid of the judgment for the sum of $5,000 damages, and $521 costs, rendered on the 10th day of July, 1S68, in favor of John M. Clarkson against Wells, Fargo & Co., one-half of which had, on that day, been assigned to the defendant McGregor by him, and the other half of which was paid by the plaintiffs in the action at bar to Clarkson. Both of these judgments were rendered by the district court of the county of Lewis and Clarke.
The respondent insists that the judgment in favor of the plaintiffs (the appellants) rendered against Clarkson on the 26th day of October, 1868, is void, because the action was dismissed as to all of the defendants who were partners of the firm of Drake, Clarkson & Co., except Clarkson, and a judgment rendered against only one partner. There is nothing in the pleadings showing that the defendant Clarkson asked that the judgment be set aside or reviewed. It stands as a judgment of a court of general jurisdiction, not appealed from, unreversed, valid and subsisting. Respondent says that the proceedings show that, if the court ever had jurisdiction of the case, it was lost by the act of the plaintiff, and that the dismissal as to two of the joint defendants was virtually a dismissal of the case; and that there was nothing left upon which to render judgment in favor of plaintiffs; and the judgment which was rendered was coram non juclice, and there were, and are, no equities in favor of the plaintiffs.
The respondent seems to rely upon the ground that the suit was dismissed as to the copartners of Clark-son, and judgment rendered against him alone for the partnership debt; and that for this l-eason this judgment is a nullity. If Clarkson had resisted the judgment against him upon the ground that his partners should be included in the judgment for a partnership debt, he could have compelled the plaintiffs, Wells, Fargo & Co., to have taken a joint judgment. He did not do this — no plea in abatement was interposed — but he allowed judgment to go against him personally. And it nowhere appears, in pleading or proof, that he allowed this to be done with a fraudulent intent, or in collusion with Wells, Fargo & Co., or with any design to defraud McGregor, the assignee of the judgment against Wells, Fargo & Co.
The question as to whether an act is void or voidable is involved in some obscurity; and in this case we are asked to treat the action of the court below as a nullity, in a suit in which the court had jurisdiction of the parties and of the subject-matter of the case. The subsequent dismissal of the complaint as to two of the defendants did not dismiss it as to the third. The court still had jurisdiction as to him; before the final disposition of the case, some action must be taken by the court as to him; until then, the court had jurisdiction both of the person of that defendant and of the subject-matter of the suit as to him.
It seems clear that the court had not divested itself of jurisdiction by allowing a judgment of dismissal as to the other defendants. The cause might be continued; the complaint be amended; new parties made and new issues formed. This was possible; and this could not be done in a void proceeding, in a suit that was a nullity.
In such a suit the judgment or decree would be such that no action on the part of the plaintiff; no inaction upon the part of the defendants; no resulting equity in the hands of third persons; no power residing in the legislative or other branch of the government, can invest it with any of the elements of power or vitality. See Kramer v. Holster, 55 Miss. 243; Pryor v. Downey, 19 Am Rep. 656; Maxwell v. Goetchens, 29 Am. Rep. 242.
If the court below erred in allowing the plaintiff to proceed in a particular way, for instance, in taking the judgment, that would not render its action void. Whether this court can treat such action as a nullity is well defined by Wait, in his work on Fraudulent Conveyances, section 122. He says: “A plain distinction must be observed between jurisdiction and the exercise of jurisdiction. A court may have the right and power to determine the status of a thing, and yet may exercise its authority erroneously.. After jurisdiction attaches in any case, all that follows is exercise of jurisdiction. The right to inquire into the jurisdiction by another court in a collateral action is confined to the question of authority, and it does not extend to the question whether or not the court erred in the exercise of lawful authority to act. It is only a void judgment that may be attacked collaterally; where it is only voidable, where the proper court has decided improperly, the remedy is by resort to a higher court; and when the highest is reached the law gives no further remedy. By ‘ proper court ’ is meant not merely a duly constituted tribunal, but one having authority over the subject-matter of the particular case in question.”
The judgment being valid and binding, it may be set off against the judgment in favor of Clarkson, belonging to the defendant McGregor. It has been decided in this case — 2 Mont. 230 — heretofore tried upon a demurrer to the complaint, that whether the defendant McGregor had any notice of the plaintiff’s equity, made no difference, since it was a subsisting- equity at the time of the assignment, and that he took this assignment subject to any right of set-off the person owing the demand possessed at the time of the assignment. The court, in the above opinion, say further: “In this case there was an equitable right to set-off, which could be made available in a court of equity only, owing to the nature of the action of Clarkson against plaintiff, and we think the relief the plaintiff asks in this action was proper, and should have been granted.”
We do not think that the judgment against Clarkson can be treated as a nullity, or attacked collaterally in this proceeding. McG-regor, the assignee, can claim no more or greater rights than his assignor, Clarkson; and he could not impeach this judgment, having had his day in court, having answered and appeared at the trial contesting the plaintiff’s right to recover. It is said in Freeman on Judgments, section 334, that “judgments of any court can be impeached by strangers to them, for fraud or collusion, but no judgment can be impeached for fraud by a party or privy to it.”
We are of opinion that the set-off asked for in the complaint should have been allowed.
The judgment is reversed and the cause remanded for further proceedings.
Judgment reversed.
|
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] |
Wade, O. J.
This is an application filed in this court by Frank Wells, Henry B. Berkley, Edwin M. Bachelor, P. B. Clark and Charles Furgerson, citizens of Badersburg, Jefferson county, for a writ of mandate against Joel M. D. Taylor, clerk and recorder; John McDermott, sheriff; Edward McSorley, treasurer, and David G-. Warner, probate judge, officers of said Jefferson county, residing and exercising the functions of their respective offices at Boulder City, in said county, to compel said officers to return the books, records, archives, papers and effects of their several offices to Radersburg, which place, the petitioners aver, is the legal county seat of Jefferson county, and to require said officers to reside in and hold their offices at said Radersburg.
The questions to be determined arise upon a demurrer to the application of petitioners, no writ having issued in pursuance of the prayer of the petitioners, and hence no answer having been filed by the respondents. A brief statement of the facts, as they appear in the application, will be necessary in order to present the questions to be decided:
The legislative assembly of the territory, at its thirteenth regular session, 1883, passed an act authorizing the citizens of Jefferson county to vote upon the question of removing the county seat of said county from Radersburg to Boulder City, and providing the notice to be given, and the day when such election should be held. The act further provided that the county commissioners should appoint judges and clerks of said election in the several precincts as now established, who shall qualify as other clerks and judges of election, and that said judges and clerks should receive, count and make return of all legal ballots “in the manner and at the time as is provided in this bill.” Also, that the canvassing board shall, within twenty days after such election, make an abstract of all the votes- cast, and that the clerk of the board shall make out an abstract of the votes cast, and deliver one copy thereof to the secretary of the territory and another to the clerk and recorder of the county; that if the vote is in favor of changing the county seat, the commissioners shall, within six months from the date of the election, cause the books, records, papers and effects of the county to be removed to the place designated as the county seat; and that the several county officers thereafter shall hold-and keep all county books, papers and records, and their offices, at such new county seat.
The application of petitioners charges that this act of the legislative assembly is void, for the reason that it requires the county commissioners to appoint judges and clerks of said election in the several precincts, but did not provide the number or qualifications of such judges and clerks; and because the act provided that said judges and clerks should receive, count and make return of all the legal ballots in the maimer and at the time provided in the act, while the act provided neither manner nor time for receiving, counting and making return of said ballots; and for the reason that said' act did not provide for a canvassing board to canvass said returns. The application further charges that the county commissioners, in pursuance of said act, appointed judges and clerks for the several precincts as then established, but that many of the persons so appointed failed, neglected or refused to serve as such, whereupon other persons assumed to act as such judges and clerks, and counted the ballots, and made and signed the returns thereof.. The application specifies the particular precincts in which other persons than those appointed by the commissioners acted as judges and clerks of said election. The application further charges that the chairman of the board of county commissioners, the clerk and recorder, and the probate judge of said county, acted as a canvassing board in regard to said election, and made an abstract of the vote and filed the same as provided in said act. Said application further charges that, prior to said election, there was presented an offer to the voters of said county, in the form of a bond in the penal sum of §10,000, conditioned that, if a majority of the votes cast at said election were in favor of changing said county seat to Boulder City, and if it was so determined, then the principals in the bond agreed to furnish the county of Jefferson suitable buildings in Boulder City for a court-room, county offices, etc., free of any and all expense to said county, for the period of five years; said principals cove- nan ting and agreeing that the building for this purpose so to be provided should be of stone (giving the dimensions and number and size of the different rooms), and properly furnished for the purposes aforesaid. The application further alleges that the county commissioners made no order causing the removal of the books, records, etc., of said county from Radersburg to Boulder City, but that the county officers aforesaid, on or about the 12th day of October, 1883, removed from said Radersburg to Boulder City, taking with them the books, records, papers and effects belonging to their respective offices, and are now exercising the functions of their offices at the last-named place, and refuse to return their said offices, and the records and effects belonging thereto, to said Radersburg, to the inconvenience, damage and expense of petitioners, which is specified by proper averment.
1. There is no allegation of fraud by the petitioners. An abstract of the vote of the county at the different precincts is attached to and made a part of the application, showing that a majority of the votes as cast 'were in favor of changing the county seat from Radersburg to Boulder City, and there is nothing whatever in the application showing or tending to show that any illegal or fraudulent votes were cast at said election. The purpose of this act of the legislative.assembly was to give to the qualified electors of Jefferson county an opportunity to express their wishes upon the question of changing their county seat from Radersburg to Boulder City, in said county. In pursuance of this purpose an election was held at the time appointed in the act. We must take it for granted that there was not a fraudulent "or illegal vote cast at the election, for the petitioners charge no fraud or illegality in that regard. The vote, then, contained in the abstract attached to the application of petitioners for the writ, is an honest expression of the electors upon the question submitted. But the petitioners say .that the vote was not counted or canvassed by the proper officers; that no officers for that purpose were provided in the act; and therefore, though the vote is an honest and fair expression of the wishes of the electors of the county, that the act authorizing the vote, and the election in pursuance thereof, are void. The act does not specify the number of judges that the commissioners shall appoint at each precinct, but does provide that the commissioners shall appoint the judges and clerks, wffio shall qualify as other judges and clerks of election, and it does not specify who shall compose the canvassing board, but it does require the canvassing board to make the abstract. Who are the judges of elections? The general law specifies who they are, their number and qualifications, and how a vacancy shall be filled if any person appointed by the commissioners shall fail to serve; and, in the absence of any allegations to the contrary, the commissioners having followed the general law as to the number of judges appointed, we must presume that, in filling vacancies, as to judges and clerks, the method prescribed by the general law was followed. In providing that the judges and clerks shall qualify, as other judges and clerks of election, the special act refers to the general law, and it is not too much to presume that the phrase “the judges” in the special act means the same as “the judges” in the general act, and that in appointing judges under the special act the same number should be appointed as is provided in the general election law.
The canvassing board is a board provided by the general election law. It was already in existence when this special act became a law. ' It was not necessary that the special act specify of whom this board should be composed, for the general law had already made such specification. If the special act had provided that the board of county commissioners should make the abstract, it would not have been necessary to have named the persons of whom such board is composed. The general law speaks upon that subject. The board of commissioners and the canvassing board are each known to the general law, and either board being named in a special act is a sufficient designation of whom is intended. It was competent for the legislature to put this service of making an abstract of the votes at this special election upon any board or officers known to the general law, or to designate any competent person for such service. “The canvassing board” is a board known to the law, and this language in the special act in question is a definite and certain reference to such board. It was not necessary that the special act create the canvassing board, for it was already in existence, and only had to be referred to by name in order to certainly designate the persons intended to perform the services named. But if this special enactment had made no reference to the general election law, and had not provided how or in what manner the election should be held, or what officers should conduct the same, still, if an election had been held in the manner provided by the general law, in the absence of fraud or illegal voting, and the election was a fair, honest expression of the qualified electors of the county upon the question submitted to them, such enactment would be legal and such election valid. When the law authorizes a particular act to be done, but does not specify the manner of its doing, the act is well done if it follows the general law on the subject. Says Judge McCrary: “Where a statute authorizes an election to be held by a county, city or township, for the purpose of determining a given question, and when such statute points out no mode for conducting such election, it has been held that it should be conducted in the manner prescribed by law for other elections by the same body.” McCrary, Elect. (2d ed.) 353; People v. Dutcher, 56 Ill. 144.
2. In election cases the great question is whether the voice of the majority has been honestly and fairly expressed. A qualified voter should not be disfranchised because a judge of the election or a clerk was not prop erly appointed, or because of some technical irregularity in the returns. The question is, Was there a fair vote and an honest count? If there was, the election is valid though the officers conducting the same were not duly sworn or chosen, or did not possess the qualifications requisite for the office. “In the courts of the country the ruling has been uniform; and the validity of the acts of officers of election who are such de facto only, so„far as they affect third persons and the public, is nowhere questioned. The doctrine that whole' communities of electors may be disfranchised for the time being, and a minority candidate forced into an office because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite for the office, finds no support in the decisions of our judicial tribunals.” McCrary, Elect, p. 98, § 79; People v. Cook, 8 N. Y. 69; Taylor v. Taylor, 10 Minn. 107 (Gil. 81); Baird v. Bank of Washington, 11 Serg. & R. 414; Pritchett v People, 1 Gilman, 529; People v. Ammons, 5 Gilman, 107; St. Louis Co. v. Sharks, 10 Mo. 121; Whipley v. McKune, 12 Cal. 352; People v. Cook, 14 Barb. 259; Creenleaf v. Low, 2 Denio, 168; Weeks v. Ellis, 2 Barb. 324; Keyser v. McKisson, 2 Rawle, 139; McGregor v. Balch, 14 Vt. 428; Hoffa v. Morter, 82 Pa. St. 297; Morris v. Valandingham, 11 Kan. 269; Dishon v. Smith, 10 Iowa, 219.
In the last-named case the court say: “ A more manifest fault is in the fact that neither the judges nor clerks of the election appear to have been sworn. In the case of each of these townships before named the officers signed a form of oath, but there is no evidence of the oath having been administered. It is urged that this defect entirely vitiates these returns. But the law is not so. While it is the law that the canvassers cannot adjudicate upon the sufficiency of returns, as we have held in the former case, where a case of this kind comes into a court of justice, such court, or a jury trying it, not only may, but it is their duty, to look behind the returns, and even behind the ballot-box in some cases. Thus, in another case on trial upon the facts, the court might receive evidence of these officers having been sworn. And this might be the course in the present cause. But the law goes, yet further. Neither the election nor the particular returns would be vitiated and subject to rejection if the above officers were not sworn. . . . The election and not the return is the foundation of the right. Pond v. Negus, 3 Mass. 230; People v. Allen, 6 Wend. 486; Ex parte Heath, 3 Hill, 43; People v. Holley, 12 Wend. 481; People v. Peck, 11 Wend. 604; In re M. & H. B. Co. 19 Wend. 143; 5 Cow. 269; People v. Van Slyck, 4 Cow. 297; Striker v. Kelley, 7 Hill, 9; In re Strong, 20 Pick. 484; 25 Me. 507; Bacon v. York Co. 26 Me. 491; Brower v. O’Brien, 2 Cart. (Ind.) 423.”
And so we say that the election, and not the question as to whether the judges and clerks thereof were properly appointed, must determine whether this county seat was changed from Radersburg to Boulder City. If the election was fair and honest, and no illegal votes were cast, it is not of much consequence who counted the votes, provided they made an honest count and a correct abstract thereof.
In the case of People v. Cook, supra, the court say: “It is the election, and not the certificate of the canvassers, that gives the right to the office. ... The neglect of the inspectors or clerks to take any oath would not have vitiated the election. It might have subjected those officers to an indictment if the neglect was wilful. ”
Prom these authorities it seems settled beyond question that mere irregularities that do not affect the general result will not vitiate an election. If the votes are legal and the voters qualified, mere irregularities in the appointment and qualification of the officers conducting the election will not have the effect to make the election void. It is not very material who counts or makes an abstract of legal votes. These are matters merely directtory, unless the statute makes them mandatory. The voter is not to be disfranchised and the election held for naught because an officer not fully qualified has received or counted the votes. If the integrity of the election is not impeached, the provisions of the statute concerning the recording and receiving the legal votes cast, and the mode and manner of conducting the details of the election, are directory and not mandatory. Election laws are enacted for the purpose of securing a legal vote, and to give to qualified voters an opportunity to express their opinions. The provisions of the statute vital to this end are mandatory, and must be substantially complied with. The purpose is to secure to the voter a free, untrammeled vote, and a correct count and return thereof. Whatever is necessary to this end, and without which it cannot be attained, must be performed. Says Judge McCrary: “ If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or not ; such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. Barnes v. Supervisors, 51 Miss. 305; Wheelock’s Case, 82 Pa. St. 291. These provisions which affect the time and place of the election, and the legal qualifications of the electors, are generally of the substance of'the election; while those touching the recording and return of the legal votes received, and the mode and manner of conducting the mere details of the election, are directory. People v. Schermerhorn, 19 Barb. 540; McCrary, Elect. §§ 126, 124”
3. The petitioners further rely upon the allegations of their application, that prior to the election there was presented an offer to the voters of the county in the form of a bond, conditioned for the building a courthouse at Boulder City, provided a majority of the votes cast at the election were in favor of changing the county seat of the county to that place. This offer was not bribery. A proposition of this kind, looking to the public welfare, and for the benefit of all the people alike, contains no element of criminality or immorality. The thing offered is of a public nature, pertaining to the public and not to individuals, and the party to be influenced is a whole county, and in a manner to benefit every inhabitant thereof. This is not the case of a candidate for public office, who, in order to secure votes, promises, in case he shall be elected, to donate a portion of his salary or other valuable thing to the county or state. This would be simply a proposition to purchase an office in consideration of personal services or money, or both. Such a proposition the law condemns as against sound policy, and as tending to corruption. A man who is so infirm in morals as to be willing to purchase an office would probably resort to corrupt practices in order to extort from the people the price paid. Public buildings and places to transact the public business of. the people are in every county a necessity. They are j>rovided, and rightfully, by a tax upon the whole people, for the reason that all are benefited by their erection. But if, during the pendency of an election to change a county seat, a man or company of men should erect at a certain place a court-house and county offices in order to retain the county seat at such place, could such man or company be charged with bribery or the exercise of an undue influence upon the election? Reasonable men in casting their ballots look to the public interest and general welfare. A self-governing people have the right to do in a legál way whatever is not forbidden by the law or public policy, for the public good. Philanthropy might erect a public building for the use of the people. Might the donor not give and the people accept without being guilty of a crime? And if such gift were a court-house, and made during the pendency of an election to remove or change the county seat, is it possible that the people would be guilty of a crime if, in casting their ballots, they took into consideration the public benefits to be derived from such gift? The motive which prompts the gift is not material. If the donation promotes the public welfare, the people, in casting their ballots, have the right to consider it, whether the motive be good or bad. A whole people are not bribed by the bestowal of public benefits for the good of all alike. The law proceeds upon the theory that a self-governing people are self-respecting, and that whole communities will not do any act that reflects upon their honor or integrity.
Says Woodward, J., speaking for the supreme court of Iowa (10 Iowa, 220): “We do not think the giving facilities for public convenience to the whole county, such as furnishing a building for the courts and offices, and thus relieving the county from a burden of expense, amounts to bribery. Nor would the giving property, though not of that specific character, but yet adapted to reducing the expense of a change. If the people of a town desire a county seat located at such place, there is no wrong and no corruption in their offering and giving facilities to produce that result. Either in buildings and offices direct, for the use of the public, or in property or money to procure the facilities, they may offer to take away or to lessen the pecuniary burden which would come upon that public, the county, by the location, or by a change of location. And this cannot be bribery. And it may be doubted whether such an act can become brib ery when the offer is to the whole county, and upon a matter of county interest only. In a case like the present, there is no duty upon the county from which it or its citizens may be induced to swerve. They may adopt which place they see fit, and it is offering additional inducements only to offer as above mentioned.”
Says Lyon, J., for the supreme court of Wisconsin (State v. Purdy, 36 Wis. 225): “References should be made to the cases which have sustained the validity of bids or pecuniary offers to secure the location of public buildings at some particular place. We have no controversy with these cases here. The distinction between the election of public officers to whom, for the time being, the exercise of the functions of sovereignty is intrusted, and the mere choice of a site for a public building, is quite apparent. The former involves, or may involve, the integrity of the government, and the preservation of the principles upon which it is founded; while the latter is only a matter of public convenience or pecuniary interest, involving no fundamental principles whatever.” 4. Boulder City became the county seat of Jefferson county, by virtue of the election. This result could not be changed or modified by reason of the county commissioners failing to make the order contemplated by section 6 of the act, causing the books, records, papers and effects of the county to be removed to that place. The result of elections cannot be defeated by the failure of officers to perform an act of this kind. And Boulder City having become the county seat of the county, by virtue of the election, it follows that the application for a writ of mandate, requiring the county officers, the respondents herein, to show cause why they should not remove their offices and records to Radersburg, is insufficient to warrant the issuance of the writ, and the demurrer thereto is sustained.
Judgment for respondents accordingly.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 In March 2005, Garry Golden was found guilty of felony sexual assault. He was sentenced to serve 20 years under the supervision of the Montana Department of Corrections with 15 years suspended. Golden appealed his conviction and in September 2007, we affirmed. In December 2008, he filed a petition for postconviction relief in the Thirteenth Judicial District Court, Yellowstone County, seeking DNA testing and relief from an asserted ineffective assistance of counsel (IAC) claim. The District Court denied the petition as untimely. In September 2009, we reversed and remanded the matter for review on the merits.
¶2 In June 2010, Golden filed a second petition with the District Court requesting that he be allowed to conduct discovery. The State moved to dismiss Golden’s petition for postconviction relief and filed a memorandum opposing Golden’s motion for leave to conduct discovery. In June 2013, the District Court denied Golden’s petition for DNA testing, his request to conduct discovery, and the State’s motion to dismiss. The court granted Golden’s petition for postconviction relief as it pertained to his IAC claim. Golden appeals the District Court’s denial of his petition for DNA testing and the State cross-appeals the District Court’s grant of Golden’s petition for postconviction relief on his IAC claim. We affirm in part and reverse in part.
ISSUES
¶3 The issue on appeal is whether the District Court erred in denying Golden’s petition for DNA testing.
¶4 The issue on cross-appeal is whether the District Court erred in granting Golden’s petition for postconviction relief.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Garry Golden and Martin Holland were close friends, describing each other as “family.” The two men even moved to Montana together in late 2001 or early 2002. They lived and worked together. Shortly after arriving in Montana, Holland met L.W. L.W. had two young children, daughter K. W. and son P. W. Holland subsequently moved in with L.W. and the children and over time established a common law marriage. Golden also moved into the mobile home with L.W., Holland, and the children for several weeks until he was able to find another place to live.
¶6 Holland and L.W. maintained a close relationship with Golden and allowed him almost unlimited access to their car and home by providing him with keys to both. Golden visited daily. On August 13, 2002, Golden visited Holland while L.W. was at work. Golden had been drinking and, according to Holland, appeared intoxicated. The children were at home and three-year old P.W. was walking around naked in the heat. Holland and Golden spent some time on the computer then Holland excused himself to “rest.” Holland testified that because Golden was drunk and “smelled,” he did not want to spend more time with him. Rather than leaving, however, Golden remained in the living room with P.W. and four-year old K.W.
¶7 Approximately one-half hour later, Holland emerged from the bedroom and witnessed Golden performing oral sex on P.W., who was reclining across Golden’s lap. Holland testified that while shocked, he was 100% positive of what he saw. He ordered Golden to leave and to leave the keys to the trailer home and the car on his way out. Golden told Holland he was sorry and left.
¶8 Shortly thereafter, Paul Foster, a neighbor and mutual friend of Golden and Holland, stopped by and found a “stunned” and “truly shocked” Holland. After discussing the events with Foster, Holland called L.W. at work and asked her to come home immediately. When L.W. arrived at approximately 9:15, Holland told her what had happened. After confirming that P.W. was unharmed, L.W. called the police. An officer took statements from Holland, Foster, and L.W. and recommended that they take P.W. to the hospital to have him “checked out.” L.W. found some already-worn underpants on P.W.’s bedroom floor, put them and other clothes on him and took him to the hospital at around midnight.
¶9 At the hospital, L.W. explained that the child had been orally sexually assaulted earlier in the evening according to Holland who had witnessed the assault. L.W. did not identify Golden and admitted that she was not home at the time. Based upon L.W.’s explanation of why P.W. needed to be examined, the doctor took swabs from his penis and scrotum and retained his underpants for analysis. The underwear and the swab samples were sent to the Montana State Crime Laboratory to be analyzed for saliva DNA.
¶10 Meanwhile, officers went to Golden’s home and arrested him. During questioning, Golden admitted visiting Holland’s trailer, being intoxicated and continuing to drink while at Holland’s, remaining with the children after Holland left the room, and holding unclothed P.W. on his lap. He denied performing oral sex on P.W. but stated that it was “unlikely, but possible” that he had done something wrong that he did not remember.
¶11 The laboratory could not identify Golden’s DNA on the sample swabs or P.W.’s underwear. Following a trial in 2004, the jury was unable to reach a verdict and a mistrial was declared. At a second trial in 2005, at which Holland, L.W., Foster, and the examining physician testified, Golden objected to hearsay testimony from the latter three witnesses. The District Court overruled his objections. The jury reached a guilty verdict and Golden appealed on the ground that inadmissible hearsay had been erroneously admitted. As noted above, in 2007 we affirmed Golden’s conviction. State v. Golden, 2007 MT 247N (Golden 1).
¶12 In December 2008, Golden filed a postconviction petition. In this petition, he claimed he had received ineffective assistance of counsel and he asked for postconviction DNA testing. The District Court dismissed Golden’s petition on procedural grounds and we reversed and remanded the matter for consideration of the petition on the merits. The State sought to dismiss the petition and Golden subsequently moved for leave to conduct discovery. In June 2013, the District Court denied Golden’s petition for DNA testing, his motion for leave to conduct discovery, and the State’s motion to dismiss. The court granted Golden’s petition as it pertained to his claims of IAC.
¶13 Golden filed a timely appeal and the State cross-appeals.
STANDARD OF REVIEW
¶14 A district court’s decision regarding postconviction DNA testing under § 46-21-110, MCA, constitutes a mixed question of fact and law, which we review de novo. Haffey v. State, 2010 MT 97, ¶ 9, 356 Mont. 198, 233 P.3d 315.
¶15 In considering ineffective assistance of counsel claims in postconviction proceedings, we apply the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, 973 P.2d 233. Strickland’s two-part test requires the defendant to show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. A petitioner must establish both prongs of the Strickland test. We need not address both prongs if a petitioner fails to establish either prong. State v. Mederos, 2013 MT 318, ¶ 12, 372 Mont. 325, 312 P.3d 438.
¶16 A deficient performance falls “below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances.” There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Mederos, ¶ 13. A petitioner must overcome the presumption that under the circumstances the action he challenges might be considered sound trial strategy. Counsel’s trial strategies are entitled to great deference when reviewed on a claim of IAC. State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d 877.
¶17 As for the second prong of Strickland, a petitioner alleging ineffective assistance must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
DISCUSSION
¶18 Did the District Court err in denying Golden’s petition for DNA testing?
¶19 Golden petitioned the District Court for additional DNA testing because the DNA testing performed at the time of the accusation did not detect Golden’s saliva DNA on either P. W. or P.W.’s underwear. He asserted that the DNA actually found on P.W.’s underwear (this unidentified DNA is referred to as the “unknown contributor” DNA) should be further tested and compared to the DNA of Holland and Foster and against the CODIS program containing databases of known criminals. He also argued for “substrate control” testing of P.W.’s underwear, claiming such testing should have been performed initially but was not.
¶20 In considering Golden’s petition for additional DNA testing, the District Court relied upon § 46-21-110(5)(e), MCA, and Haffey, ¶ 18. It concluded based upon these authorities that it must determine whether or not further DNA testing would potentially exonerate Golden. The court noted that the minor amount of DNA belonging to an unknown contributor and detected on P.W.’s underwear could be attributed to any number of sources given that the underwear had been on the floor for an undetermined amount of time and there was no way of knowing who had come in contact with it.
¶21 The court reviewed the record and the pleadings and determined that “[e]ven if the unknown contributor were identified, it would not make it any less likely that [Golden] committed the assault against the victim, or any more likely that someone else did.” The District Court concluded that further DNA testing would not exonerate Golden in light of the State’s strong eyewitness evidence and Golden’s own incriminating statements made after the incident.
¶22 On appeal, Golden argues that the District Court misapplied the Haffey test. In Haffey, Haffey admitted to and was convicted of felony assault with a weapon and DUI after striking a pedestrian with his vehicle while driving intoxicated. Haffey, ¶ 4. After his jury conviction, he sought postconviction DNA testing in an attempt to establish that he was not driving the car at the time of the accident. Haffey, ¶ 6. Haffey is the first case this Court decided pertaining to postconviction DNA testing under § 46-21-110, MCA, which was enacted in 2003. As we noted in Haffey, this statute provides a procedure by which “a person convicted of a felony may seek DNA testing to show innocence.” Haffey, ¶ 12.
¶23 Section 46-21-110, MCA, provides in relevant part:
(1) A person convicted of a felony who is serving a term of incarceration may file a written petition for performance of DNA testing, as defined in 44-6-101, in the court that entered the judgment of conviction. The petition must include the petitioner’s statement that the petitioner was not the perpetrator of the felony that resulted in the conviction and that DNA testing is relevant to the assertion of innocence.
(5) The court shall grant the petition if it determines that the petition is not made for the purpose of delay and that:
(a) the evidence to be tested:
(i) was secured in relation to the trial that resulted in the conviction;
(ii) is available; and
(iii) is in a condition that would permit the requested testing;
(b) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, degraded, contaminated, altered, or replaced in any material aspect;
(c) the identity of the perpetrator of the felony was or should have been a significant issue in the case;
(d) the petitioner has made a prima facie showing that the evidence sought to be tested is material to the question of whether the petitioner was the perpetrator of the felony that resulted in the conviction;
(e) the requested testing results would establish, in light of all the evidence, whether the petitioner was the perpetrator of the felony that resulted in the conviction; and
(f) the evidence sought to be tested was not previously tested or was tested previously but another test would provide results that are reasonably more discriminating and probative on the question of whether the petitioner was the perpetrator of the felony that resulted in the conviction or would have a reasonable probability of contradicting the prior test results.
¶24 Addressing § 46-21-110(5)(e), MCA, we stated:
It is under this provision that a district court must weigh the exculpatory potential of DNA test results favorable to the petitioner against the prosecution’s evidence presented at trial. This is a fact-specific inquiry that will lead to a spectrum of results in different cases. For example, where “the State presented a strong case, and a favorable DNA test would discredit only an ancillary fact, the testing should be refused.” ... “At the opposite end of the spectrum, where the DNA test could exonerate the defendant, it does not matter how strong the other evidence might have been; [the statute] is satisfied.” (Internal citations omitted.)
Haffey, ¶ 18.
¶25 Golden claims that the District Court erred when it focused exclusively on whether additional DNA testing could exonerate him. He asserts that under the statute and extrajurisdictional cases cited in Haffey, additional DNA testing should be granted if he presents evidence which “tends to significantly advance his claim of innocence,” or “merely raises a reasonable inference of innocence.” He argues that the court misinterpreted Haffey and the statute by requiring him to prove that postconviction DNA testing would completely exonerate him. (Emphasis added.)
¶26 The Montana Innocence Project (MIP) submitted an amicus curiae brief urging a liberal interpretation of the applicable statutes based, in part, upon review of the legislative history. The MIP also provided multiple statistics of the number of incarcerated persons found guilty on eyewitness testimony and subsequently exonerated by DNA evidence.
¶27 The State responds that because the plain language of the statute is clear and unambiguous, there is no reason to rely upon the legislative history. Sections 46-21-110(l)(c) and (5)(e) both require the petitioner to explain how the required testing would establish petitioner’s “innocence” and “whether the petitioner was the perpetrator of the felony.” The statute requires that the petitioner swear under the penalties of peijury that he is innocent and that the DNA testing would establish his innocence. Section 46-21-110(1) and (l)(c), MCA. As to the petitioner’s burden, the statute requires him to make “a prima facie showing that the evidence sought to be tested is material to the question of whether the petitioner was the perpetrator of the felony that resulted in the conviction.” Section 46-21-110(5)(d), MCA.
¶28 The State also argues that Golden’s requests are not statutorily authorized because the statute does not contemplate collection of new biological samples from Holland and Foster. Section 46-21-110(5)(a), MCA. It does not authorize external database queries. Section 46-21-110, MCA. Essentially, the statute only authorizes the court, under certain conditions, to order postconviction “DNA testing” of previously-secured biological evidence.
¶29 Lastly, the State maintains that DNA evidence was not what convicted Golden; rather, it was the strength of the prosecutor’s case, including the strong eyewitness testimony.
¶30 We first address construction of the applicable statute. It is well-established that when interpreting a statute, legislative intent must first be determined from the plain words used in the statute. If after reviewing the plain words, confusion or ambiguity exists, we turn to the legislative history for guidance. State v. Goebel, 2001 MT 73, ¶ 21, 305 Mont. 53, 31 P.3d 335. In this case, the statute is clear. It requires that before a district court may authorize postconviction DNA testing, the petitioner must establish that the requested DNA testing will determine “whether the petitioner was the perpetrator of the felony that resulted in the conviction.” Section 46-21-110(5)(e), MCA. He must make a prima facie showing that the evidence is material to the question of his guilt or innocence. Golden has not met the standard. It is undisputed that Golden’s DNA was not found on the child or his clothing. However, the DNA test result presented at trial was outweighed by the State’s evidence, including a strong eyewitness, resulting in Golden’s conviction. In other words, DNA was not used to convict Golden at trial. It stands to reason that additional DNA testing would not be more favorable to Golden than the existing DNA results. Nor would the identification of the “unknown contributor” make it any less likely, based upon the evidence presented at trial, that Golden assaulted P.W.
¶31 Furthermore, it is apparent that the Legislature did not intend the statute to be used in the manner Golden seeks. The language does not authorize testing of previously untested persons, nor does it contemplate a comparison of newly-obtained DNA evidence with federal information databases. It is well-established that the Court may not disregard the plain language of the statute; it must ascertain what is in “terms or in substance contained” in a statute, and not insert what is omitted or omit what is inserted. Section 1-2-101, MCA; State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174.
¶32 In its amicus brief, MIP relates that in numerous cases eyewitness testimony has been later proved to be inaccurate. Certainly this can occur in cases where the assailant was previously unknown to the victim or eyewitnesses. However, this is not a case of mistaken identity. Holland was mere feet away from Golden when he saw Golden assault the boy. Moreover, despite his denial of sexual assault, Golden corroborated every other fact Holland gave the police — time of arrival, Golden being intoxicated, the men playing games and checking e-mail on the computer, Golden’s continued drinking, Holland retiring for a nap, a naked P.W. lying across Golden’s lap, and Golden’s apology to Holland on the way out the door. He stated he knew of no reason why Holland would lie about this. He acknowledged that he was drunk when it happened and “[i]t is unlikely but possible that I did something that I don’t remember.” The jury was persuaded by the State’s evidence and convicted him. For these reasons, and because the DNA tests requested by Golden are not authorized under the language of the statute, we conclude the District Court did not err in denying Golden’s petition.
¶33 Did the District Court err in granting Golden’s petition for postconviction relief?
Ineffective assistance of trial counsel
¶34 Golden alleged in his petition for postconviction relief that his trial counsel — in both his first and second criminal jury trials — failed to consult with or employ a DNA expert. He posited that the absence of such an expert constituted deficient performance by counsel and prejudiced his defense.
¶35 The District Court relied upon the two-prong test set forth in Strickland. Under this test, Golden was required to establish that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense. See Op. ¶ 15.
¶36 As the District Court noted, Golden’s counsel explained in an affidavit that he had consulted with a DNA expert but chose not to call the witness to the stand after learning that the DNA tests had excluded Golden as a DNA contributor. Counsel was concerned that having the expert on the stand could potentially “open the door to other issues,” that may prove disadvantageous to Golden. Therefore he made the strategic decision to exclude the DNA expert from the witness list.
¶37 The court concluded that Golden did not establish that trial counsel’s performance was deficient, i.e., he did not satisfy the first prong of the Strickland test. Consequently, the District Court denied Golden’s petition as it applied to trial counsel IAC. We affirm the District Court’s ruling as to this issue. There was no reason to call a defense DNA expert when the DNA results were favorable to Golden. As discussed above, reasonable trial strategy decisions cannot be the basis for a finding of ineffective assistance. Whitlow, ¶ 17. Because Golden did not satisfy the first prong of Strickland, we need not address the second prong. Mederos, ¶ 12.
Ineffective assistance of appellate counsel
¶38 Golden also claimed in his petition for postconviction relief that his appellate counsel did not adequately brief his claim that inadmissible hearsay had been introduced during his trial. He argued that counsel failed to comply with M. R. App. P. 23(a)(4) (2005) because she neglected to set forth the required legal argument with supporting authority in Golden’s opening brief on appeal. He asserts this constituted ineffective assistance and that he was prejudiced because this Court did not reach the merits of his hearsay claim in Golden 1.
¶39 In reliance upon Strickland, the District Court determined that Golden had presented a sound argument that inadmissible hearsay had been admitted, and that counsel’s “unsatisfactory brief” in addressing the hearsay claim constituted deficient performance. The court concluded that without a proper legal argument in the brief, this Court was unable to review the issue on appeal, resulting in procedural prejudice to Golden. The District Court granted Golden’s motion for postconviction relief on the issue of appellate counsel’s IAC and ordered that Golden receive a new appeal of his trial court conviction.
¶40 On cross-appeal, the State asserts that the District Court erred in granting Golden’s petition on this issue. It argues that the hearsay admitted at trial fell within recognized statutory exceptions and therefore was not inadmissible. In the alternative, the State submits that even if the statements were inadmissible, it was harmless error to admit them in that they were cumulative and did not contribute to Golden’s conviction in light of Holland’s “unequivocal testimony under oath.”
¶41 The State also argues that the District Court did not conduct an appropriate prejudice analysis under prong two of Strickland. It claims that had the court applied the prejudice standard, it would have concluded that Golden failed to show “a reasonable probability that he would have prevailed on his direct appeal but for counsel’s failure to brief the issues differently.” Stated otherwise, he could not show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49.
¶42 Golden counters with a detailed argument that the hearsay statements admitted at trial did not satisfy the claimed hearsay exceptions, and that appellate counsel did not include a proper hearsay analysis in Golden’s briefs nor did she argue that the admission of the testimony prejudiced Golden.
¶43 We conclude that we need not determine whether the hearsay statements were inadmissible because these statements were cumulative and constituted harmless trial error under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. In Van Kirk, we endorsed a “cumulative evidence” test under which we determine whether the fact-finder was presented with admissible evidence that proved “the same facts as the tainted evidence proved.” Van Kirk, ¶ 43.
¶44 The ostensibly tainted hearsay evidence consists of certain testimony given by Foster, L.W., and the doctor who examined the child at the hospital. Foster and L. W. each testified that it was related to them by Holland that Golden had sexually assaulted the child. The treating physician testified that L.W. told her the child had been sexually assaulted but that L.W. did not identify the perpetrator. All three witnesses admitted that they had no first-hand knowledge of the event. Their statements merely parroted Holland’s unequivocal testimony regarding the assault he witnessed in his living room. Thus, the jury was presented with admissible eyewitness testimony by Holland that proved “the same facts as the tainted evidence proved.” Van Kirk, ¶ 43.
¶45 In Van Kirk, we stated that “[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.” Van Kirk, ¶ 29. We explained that “error is prejudicial, and requires reversal, if a reasonable possibility exists that the inadmissible evidence might have contributed to a conviction.” Van Kirk, ¶ 29. Noting a distinction between “structural” errors committed in criminal trials and the “more typical ‘trial’ error,” we ruled that “[tjrial error is not presumptively prejudicial and therefore not automatically reversible, and is subject to review under our harmless error statute ....” Van Kirk, ¶ 40.
¶46 In concluding that appellate counsel rendered ineffective assistance for her failure to present an appropriate legal argument on the hearsay issue, the District Court found that the first prong of Strickland was met; however, it did not reach the second prong. We reach that prong here. The truly damning evidence against Golden was Holland’s unequivocal eyewitness testimony, presented under oath. In view of this strong direct evidence, we cannot conclude that admission of the objectionable statements contributed to Golden’s conviction. We therefore conclude that if indeed erroneous, the admission of the hearsay testimony was harmless error under the circumstances of this case. This being so, we further conclude that had appellate counsel adequately briefed the hearsay issue on direct appeal, there is no reasonable probability that the outcome of the appeal would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
CONCLUSION
¶47 For the foregoing reasons, we affirm the District Court’s denial of Golden’s petition for postconviction DNA testing and reverse the court’s grant of his petition as it pertains to IAC of appellate counsel.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON and RICE concur.
CODIS, the acronym for the Combined DNA Index System, is “the FBI’s program of support for criminal justice DNA databases as well as the software used to run these databases.” FBI website at http://www.fbi.gov/about-us/lab/biometricanalvsis/codis/codis-and-ndis-fact-sheet.
Renumbered M. R. App. P. 12(l)(f) (2007).
In Golden 1, a non-citable opinion, we chastised appellate counsel for failing to comply with M. R. App. P. 23(a)(4). As a consequence, we held that Golden had not established that the District Court had committed error in admitting the challenged statements and we affirmed his conviction.
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JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Julian James Hendrickson appeals the judgment of the Montana Fourth Judicial District Court. The sole issue is whether the District Court erred when it denied Hendrickson’s motion to withdraw his guilty plea. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On February 8,2012, Jenny LaTray reported to law enforcement that her ex-boyfnend, Hendrickson, had entered her residence without permission and assaulted her the previous night. LaTray told the officers that Hendrickson had crawled through her bedroom window at night, punched her repeatedly in the head and face, and choked her for over an hour. LaTray reported that Hendrickson had threatened to beat her again if she reported the incident to the police, and that he forced her to write a list of the names and addresses of family and friends that would allow him to find her if she ever told anyone about the assault. The responding officers observed visible injuries on LaTray. The crime scene corroborated her story.
¶3 The State charged Hendrickson by information onMarch22,2012, with aggravated burglary and tampering with witnesses and informants. During arraignment, the District Court told Hendrickson that the charges against him carried a maximum penalty of fifty years and a $100,000 fine. Hendrickson told the court that he understood and pleaded not guilty to both counts. The State did not file a notice of intent to pursue a persistent felony offender (PFO) designation or otherwise indicate that it intended to pursue a PFO designation. Hendrickson was released on pretrial supervision.
¶4 Between February 8, 2012, and May 9, 2012, LaTray gave four taped statements to law enforcement. In her first two statements, she maintained that Hendrickson broke into her residence and assaulted her. On May 1, she recanted those statements and stated that another man, named John Dean or John Gibson, actually assaulted her. On May 9, she returned to her original story and explained that she had invented the statements about the other man.
¶5 While Hendrickson was released on bond, he was arrested for allegedly placing several telephone calls to LaTray in violation of the conditions of his release. On May 30, Hendrickson made a recorded phone call from jail to his current girlfriend, Natalie Fleming, in which he seemed to suggest that Fleming should try to take the blame for contacting LaTray. Based on the recording of this call, the State filed an amended information on August 1, 2012, charging Hendrickson with an additional count of tampering with witnesses and informants.
¶6 The State offered that in return for a plea of guilty on the tampering charge for the call to Fleming, the State would not pursue the other charges and would recommend a total sentence of ten years with eight suspended. The agreement would allow Hendrickson to argue for a ten-year commitment with all ten years suspended. Additionally, the State agreed not to file a petition to revoke Hendrickson’s conditional pre-trial release based on positive urinalysis tests for methamphetamine. The State informed him that if the plea negotiations failed, the State would file another amended information to add several new charges against him, including sexual intercourse without consent and aggravated assault.
¶7 Hendrickson ultimately agreed to the State’s offer and the agreement was reduced to writing. He signed a document entitled “Plea of Guilty and Waiver of Rights,” which stated that “[t]he maximum possible punishment provided by law for the above-named offense is: State Prison not to exceed 10 years and/or fine of $50,000.” A line in the document regarding the potential for sentence enhancement for previous offenses was marked as inapplicable.
¶8 Hendrickson appeared in court for a change of plea hearing on August 1, 2012. During the court’s colloquy, the court explained the charge against Hendrickson and told him, “You understand that you are now charged with the offense of tampering with witnesses and informants. That’s a felony. That carries up to a potential of ten years in the State prison and/or a $50,000 fine. Do you understand that?” Hendrickson explained that he understood the charge and the consequences of changing his plea. He stated that he was not impaired by alcohol or drugs and that he was satisfied with the services of his attorney, John Smith. Hendrickson summarized the factual basis for the plea, stating, “I purposely induced Natalie into testifying falsely.” Smith stated that the plea was free and voluntary. The court accepted Hendrickson’s guilty plea.
¶9 After the plea was entered by the court, LaTray contacted the law firm representing Hendrickson to recant her story again — this time claiming that Hendrickson had not beaten her or called her afterward. LaTray recorded another taped statement with Smith where she claimed that Fleming, not Hendrickson, had been the one to call her. Hendrickson engaged new counsel and moved to withdraw his guilty plea based on “new evidence” from LaTray’s most recent version of the events giving rise to the charges against him. The State opposed the motion.
¶ 10 In his reply brief, Hendrickson made an additional argument that his plea was involuntary because his previous counsel, Smith, had incorrectly explained to Hendrickson that he faced mandatory PFO sentence enhancements because he previously had been convicted of a felony for tampering with a witness. Smith’s affidavit, filed with the reply brief, stated that he incorrectly told Hendrickson that, if convicted, he faced a mandatory, consecutive five to one hundred years in prison for being a PFO. Because Hendrickson had completed a deferred imposition of sentence on his prior felony offense and successfully moved to dismiss the charge, he was not eligible for PFO designation. Smith attested that his incorrect legal advice was a significant factor in Hendrickson’s decision to plead guilty.
¶11 The District Court denied Hendrickson’s motion to withdraw his guilty plea. The coturt noted that, “[a]t most, what has been presented here, is that LaTray keeps changing her story.” The court pointed out that the witness with whom Hendrickson agreed he had tampered was Fleming, not LaTray. The court agreed that if Smith had told Hendrickson that he faced a sentence enhancement based on his potential for designation as a PFO, the advice was incorrect. The court noted, however, that Hendrickson signed a plea agreement form and a waiver of rights, and engaged in a proper colloquy at his change of plea hearing. The court also observed that Smith’s advice correctly determined that there was a substantial risk of significantly more punishment if the plea was rejected — up to 160 years if convicted on all charges the State intended to pursue. The court concluded that the plea was not involuntary and that Hendrickson could not demonstrate good cause for allowing him to withdraw his guilty plea. Hendrickson appeals the court’s decision.
STANDARD OF REVIEW
¶12 This Court reviews a district court’s denial of a motion to withdraw a guilty plea de novo, because whether a plea was entered voluntarily is a mixed question of law and fact. State v. Valdez-Mendoza, 2011 MT 214, ¶ 12, 361 Mont. 503, 260 P.3d 151. We review the trial court’s underlying factual findings for clear error. State v. Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254. We review for correctness the district court’s interpretation of the law and its application of the law to the facts. Warclub, ¶ 23.
DISCUSSION
¶13 Hendrickson contends that he should be allowed to withdraw his guilty plea for two related reasons. First, he argues that his plea was involuntary because his attorney misinformed him about his PFO eligibility. Second, he argues that his attorney provided ineffective assistance of counsel for the same reason. This second argument asserts a stand-alone ineffective assistance claim that was not presented to the District Court and we decline to address the issue on appeal. State v. McFarlane, 2008 MT 18, ¶ 12, 341 Mont. 166, 176 P.3d 1057. Hendrickson does not appeal the denial of his motion on the ground that LaTray’s most recent statement amounted to “new evidence.”
¶14 The remaining issue is whether good cause exists to allow Hendrickson to withdraw his guilty plea because his counsel incorrectly advised him that he was PFO eligible. Pursuant to § 46-16-105(2), MCA, a court may for good cause permit a plea of guilty to be withdrawn and a plea of not guilty substituted within one year after the judgment becomes final. “Good cause” includes the involuntariness of the plea, but it may include other reasons. Warclub, ¶ 16. To prove that a plea was involuntary, “allegations of having had certain mental impressions at the time of the plea must be supported by objective proof in the record.” State v. Brinson, 2009 MT 200, ¶ 12, 351 Mont. 136, 210 P.3d 164 (quoting State v. Humphrey, 2008 MT 328, ¶ 23, 346 Mont. 150, 194 P.3d 643). It is the defendant’s obligation to provide such proof. See State v. Robinson, 2009 MT 170, ¶¶ 17-18, 350 Mont. 493, 208 P.3d 851. If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily or intelligently made, the doubt must be resolved in favor of the defendant. State v. Melone, 2000 MT 118, ¶ 14, 299 Mont. 442, 2 P.3d 233.
¶15 This Court utilizes the standard articulated in Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69 (1970), to determine whether a plea was voluntarily made. State v. Prindle, 2013 MT 173, ¶ 17, 370 Mont. 478, 483, 304 P.3d 712. The Brady standard requires that, to make a voluntary plea, a criminal defendant must be “fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel.” State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont. 214, 108 P.3d 500, overruled in part on other grounds, Brinson, ¶ 9 (quoting Brady, 397 U.S. at 755, 90 S. Ct. at 1472). “Under Brady, we will not overturn a district court’s denial of a motion to withdraw a guilty plea if the defendant was aware of the direct consequences of such a plea, and if his plea was not induced by threats, misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472).
¶16 When evaluating an argument that counsel’s ineffectiveness impacted the voluntariness of the defendant’s plea, we apply the Strickland test for ineffective assistance of counsel. McFarlane, ¶ 11; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, “the defendant must show (1) that his counsel's advice fell outside the range of competence demanded of a criminal attorney and (2) but for counsel’s deficient performance, he would not have entered a guilty plea.” McFarlane, ¶ 11. We have recognized that the defendant bears a significant burden under Strickland; we may determine that counsel committed an error and still conclude that the defendant did not carry his burden to establish an error serious enough to allow him to withdraw his plea. See Prindle, ¶ 23; Weaver v. State, 2005 MT 158, ¶ 20, 327 Mont. 441, 114 P.3d 1039.
¶17 Determining whether a defendant entered a plea voluntarily and whether a district court erred in denying a motion to withdraw a plea requires case-specific considerations, including “the adequacy of the district court’s interrogation, the benefits obtained from a plea bargain, the withdrawal’s timeliness, and other considerations that may affect the credibility of the claims presented.” McFarlane, ¶ 17.
¶18 As an initial matter, we agree with the District Court that, if Smith told Hendrickson that he could be subject to a PFO sentence enhancement, the advice was incorrectState v. Gladue, 209 Mont. 235, 240, 679 P.2d 1256, 1259 (1984). We also agree with the court, however, that Hendrickson has not met his burden to show good cause for the withdrawal of his plea.
¶19 Prior to accepting a guilty plea, the trial court must satisfy the requirements of §§ 46-12-210 and 46-16-105, MCA. Melone, ¶ 16. Section 46-12-210(1), MCA, provides, in relevant part, that “[bjefore accepting a plea of guilty or nolo contendere, the court shall determine that the defendant understands the maximum penalty provided by law, including the effect of any penalty enhancement provision.” Section 46-16-105, MCA, provides, in relevant part, that a court may accept a plea of guilty or nolo contendere when “the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law that may be imposed upon acceptance of the plea.” These requirements were satisfied when the District Court advised Hendrickson at the plea hearing that he faced a maximum penalty of ten years in prison and a $50,000 fine. The court said nothing about a potential PFO enhancement.
¶20 Even if Hendrickson’s counsel misled him regarding his potential PFO status, Hendrickson must demonstrate that the misrepresentation induced his plea. Warclub, ¶ 32. “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” Lone Elk, ¶ 26 (quoting Brady, 397 U.S. at 757, 90 S. Ct. at 1473). In Lone Elk, after the defendant pleaded guilty, counsel for the defendant testified that she incorrectly had told Lone Elk that the judge could not require sexual offender treatment for burglary despite that the underlying felony he intended to commit was sexual assault. Lone Elk, ¶ 4. The defendant moved to withdraw his plea. The district court denied the motion. We affirmed, observing that the district court specifically told Lone Elk during the plea colloquy that his sentence could require sexual offender treatment and that Lone Elk had admitted in court that he understood the repercussions of his decision. Lone Elk, ¶ 27.
¶21 A similar conflict between the plea colloquy and the advice of counsel exists in this case. The District Court clearly stated the maximum penalty that Hendrickson faced for the charge against him and the maximum penalty was stated correctly in the signed document containing his plea of guilty and waiver of rights. Hendrickson does not challenge the adequacy of the plea colloquy. Smith’s post-plea affidavit is the only document in the record that suggests that Hendrickson’s plea was involuntary. Hendrickson did not submit his own affidavit or provide testimony confirming that the incorrect advice was a factor in his decision to plead guilty. Smith’s affidavit does not establish that Hendrickson misunderstood the potential maximum sentence that he faced. In light of the fact that the District Court and the written plea agreement clearly explained the correct maximum sentence, the record shows that Hendrickson was well-advised of the penalty he faced.
¶22 We stated in Lone Elk that involuntariness could be established if the plea was induced, “however slightly,” by improper promises, threats or misrepresentations. Lone Elk, ¶ 21. We made clear in Brinson, however, that the “however slightly” language had no place in the determination of voluntariness of a plea, and overruled Lone Elk to that extent. Brinson, ¶¶ 8-9. Rather, in ruling on a motion to withdraw a guilty plea, the trial court is to examine all relevant “case-specific considerations.” McFarlane, ¶ 17. Other considerations affect the credibility of Hendrickson’s claims in this case. The District Court found that Hendrickson was properly advised in open court and understood the possible punishment for his offense. The court further found that Hendrickson faced additional charges that the State would pursue if he did not accept the plea agreement, including aggravated burglary, sexual intercourse without consent, aggravated assault, and another tampering with witnesses charge. Smith correctly explained to Hendrickson that there was a substantial risk of significantly more punishment if the plea was rejected. Hendrickson received a significant “benefit of the bargain” by accepting the State’s plea offer. State v. Muhammad, 2005 MT 234, ¶ 24, 328 Mont. 397, 121 P.3d 521. He could have faced up to 180 years of incarceration for all charges. He also might have been subjected to a PFO sentence enhancement — although for different reasons than those mistakenly articulated by Hendrickson’s counsel — because he allegedly committed four felonies on February 7,2012, against LaTray, and another felony on May 30,2012, when he induced Fleming to testify falsely. See State v. Anderson, 2009 MT 39, ¶ 14, 349 Mont. 245, 203 P.3d 764 (“[T]he PFO statute can be used to enhance a sentence when the second felony was committed before conviction of the first felony.”). Even if the State did not pursue additional charges, Hendrickson faced an additional forty years and $50,000 on the initial aggravated burglary charge. Thus, while his counsel's statement regarding Hendrickson’s PFO status was incorrect, it amounted to an “inaccurate prediction” rather than a “gross mischaracterization of the likely outcome.” Prindle, ¶¶ 30-32.
¶23 The timeliness of Hendrickson’s argument to withdraw his plea also does not support that his counsel’s advice rendered his plea involuntary. Hendrickson initially moved to withdraw his plea because LaTray had changed her story. It was not until his reply brief that he argued that he would not have pleaded guilty but for his counsel’s incorrect advice. This indicates that the PFO claim was not the primary reason that Hendrickson’s plea was alleged to have been involuntary.
¶24 After full consideration, the record supports the District Court’s determination that Hendrickson was fully aware of the direct consequences of his plea and that the plea was not induced by misrepresentation. The reference in Melone, ¶ 20, to “any doubt” about voluntariness of a plea cannot be interpreted, as suggested by the Dissent, to be tantamount to the “however slightly” standard we expressly disapproved in Brinson. The record must be examined as a whole to determine whether the plea was voluntary. Smith’s mistaken statements regarding the potential for a PFO designation are but one factor in this analysis. The District Court’s findings of historical fact surrounding the entry of Hendrickson’s plea are not clearly erroneous. Upon examination of all case-specific considerations, we conclude that Hendrickson has not shown that, but for counsel’s deficient performance, he would not have entered a guilty plea.
CONCLUSION
¶25 The District Court’s order denying Hendrickson’s motion to withdraw his guilty plea is affirmed.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT and RICE concur.
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] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 First American Title Insurance Company and First American Title Company of Montana (collectively First American) appeal from orders of the Tenth Judicial District Court, Fergus County, granting Meadow Brook, LLP’s motion for partial summary judgment, denying First American’s motion for partial summary judgment, and denying First American’s M. R. Civ. P. 54(b)(1) motion to amend. We affirm.
¶2 We restate the dispositive issue on appeal as follows:
¶3 Did the District Court err when it granted Meadow Brook’s motion for partial summary judgment and denied First American’s motion for partial summary judgment on Meadow Brook’s breach of contract claim?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 First American Title Insurance Company is a California corporation that sells and issues title insurance policies and is licensed to do business in Montana. First American Title Company of Montana is a Montana corporation that procures title insurance policies for clients from title insurance companies like First American Title Insurance Company.
¶5 Meadow Brook is a Montana limited liability partnership owning land outside of Lewistown, Montana. In 1996, Meadow Brook developed a portion of its land in two phases, Meadow Brook I and Meadow Brook II. Meadow Brook I contained twenty lots, and Meadow Brook II contained five lots. The lots in Meadow Brook I and II were subject to covenants, conditions, and restrictions. Private owners and Meadow Brook owned lots in both Meadow Brook I and II. Meadow Brook later planned a third phase of development involving either an independent subdivision or annexation of the undeveloped lands into Meadow Brook I and II. The existing homeowners rejected the annexation option. They opposed expansion of the development and contended that the covenants granted them exclusive use of three roads: Meadow Brook Drive, Blue Bell Drive, and Sun Flower Lane. Meadow Brook disagreed and argued that the covenants reserved an easement over the roads for use by future lot owners of the undeveloped tract.
¶6 Due to the homeowners’ opposition, Meadow Brook decided to develop the land independently as the Meadow Brook South Subdivision, and it filed a subdivision application with the Fergus County Commissioners. The County Commissioners conditionally approved the South Subdivision; one condition was that Meadow Brook either provide evidence that all of the homeowners would allow physical and legal access to the South Subdivision via the existing roadways, or that Meadow Brook obtain a judicial determination that Meadow Brook had reserved a right of access to the South Subdivision in the covenants.
¶7 Meanwhile, Meadow Brook’s counsel contacted Scott Gray, First American’s office manager, to discuss the access dispute and request a title commitment for the undeveloped lands. On September 23,2008, First American issued a commitment for title insurance with a “to be determined” value. In November 2009, Meadow Brook requested a second title commitment, from First American. On December 8,2009, Meadow Brook’s counsel emailed Gray regarding the requested commitment. The email included the following language:
Your commitment guarantees legal access. Are you willing to provide an endorsement that specifies legal access via Meadow Brook Drive, Blue Bell Drive and Sun Flower Drive? As we have previously discussed, [Meadow Brook] is in an argument/dispute with the lot owners in Meadow Brook Phase I over the use of these three roads for future development.... Please inform me if you are willing to issue the endorsement.
On December 14, 2009, First American issued an endorsement “insur[ing] against loss or damage sustained by the Insured by reason of the failure of the Land to abut a physically open street known as Meadow Brook Drive, Blue Bell Drive and Sun Flower Lane as shown on the plat of Meadow Brook South Subdivision.”
¶8 After another failed attempt at negotiations with the homeowners, Meadow Brook sent Gray notice of a claim against the title insurance policy to establish access to the South Subdivision. In turn, First American hired counsel to file an action on behalf of Meadow Brook and against the protesting landowners while reserving its right to contest coverage (the easement litigation). Meadow Brook and the homeowners filed cross-motions for summary judgment on the issue of whether the covenants, conditions, and restrictions governing Meadow Brook I and II provided access for future lot owners to the South Subdivision. On November 17, 2011, the court entered an order denying Meadow Brook’s motion for summary judgment and granting the homeowners’ summary judgment motion. It concluded that the covenants did not reserve an easement over the three roads for use by future lot owners.
¶9 Subsequently, First American denied Meadow Brook’s claim for coverage, declined to authorize an appeal in the easement litigation, and refused to further defend against the homeowners’ counterclaims. Meadow Brook ultimately resolved its outstanding issues with the homeowners in the easement litigation by reducing the number of lots in the South Subdivision from 24 to 15 and by paying the landowners $75,000. Following this settlement, on April 24,2012, Meadow Brook filed the instant complaint against First American, raising claims of breach of contract, waiver, violation of § 33-18-201, MCA, and negligence. Meadow Brook and First American filed cross-motions for partial summary judgment as to the breach of contract claim.
¶10 In a May 15, 2013 order, the District Court granted Meadow Brook’s motion and denied First American’s motion. The District Court concluded that the phrase “a physically open street” in the endorsement was ambiguous, and that the endorsement “[c]learly ... contemplated a determination that the specified streets were open to the public and were accessible pursuant to a private easement.” Applying the reasonable expectations doctrine, the court determined that a consumer with average intelligence but not trained in the law or insurance business would reasonably expect “that the insurer was insuring that the three roads were open to public access, and not that [Meadow Brook] had access because of [its] ownership of land in Phase[s] I and II.” According to the court, the loss claimed by Meadow Brook arose from a risk covered in the title insurance policy — namely the risk of not having a right of legal access to the land by way of the three streets. The court found that First American breached the policy provisions, and allowed Meadow Brook to recover for the losses it had sustained “due to the insured land not abutting a physical road open to public access.” First American filed a motion pursuant to M. R. Civ. P. 54(b) and requested that the court revise its order or, in the alternative, certify the order as a final judgment. The court declined to revise its order but did certify it as a final judgment. This appeal follows.
¶11 First American argues that the policy only provided coverage for a right of access for Meadow Brook; it did not guarantee access for future lot owners. First American further argues that the District Court incorrectly applied the reasonable expectations doctrine and the policy exclusions. Meadow Brook counters that the District Court correctly applied the reasonable expectations doctrine. It maintains that it had good reason to expect that it was insured against its losses, as First American knew the homeowners disputed Meadow Brook’s contention that future lot owners had a right to access the roads, and First American provided a special access endorsement to that effect upon Meadow Brook’s request.
STANDARD OF REVIEW
¶12 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. Dulaney v. State Farm Fire & Cas. Ins. Co., 2014 MT 127, ¶ 8, 375 Mont. 117, 324 P.3d 1211 (citation omitted). Summary judgment is appropriate when “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.” Dulaney, ¶ 8 (citing M. R. Civ. P. 56(c)(3)).
DISCUSSION
¶13 Did the District Court err when it granted Meadow Brook’s motion for partial summary judgment and denied First American’s motion for partial summary judgment on Meadow Brook’s breach of contract claim?
¶14 “The interpretation of an insurance contract is a question of law.” Fisher v. State Farm Mut. Auto. Ins. Co., 2013 MT 208, ¶ 15, 371 Mont. 147, 305 P.3d 861 (citation omitted). Insurance agreements are contracts and are subject to general rules of contract law. Fisher, ¶ 25 (citation omitted). We accord the usual meaning of the terms and the words in an insurance contract, and we construe them using common sense. Fisher, ¶ 15 (citation and quotation marks omitted).
¶15 We begin our analysis by addressing First American’s argument that the District Court erred in applying the reasonable expectations doctrine because the policy provision was unambiguous. We first recognized the reasonable expectations doctrine in Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983), stating: “The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Fisher, ¶ 20 (quoting Royle, 202 Mont. at 180-81, 656 P.2d at 824; internal quotation marks omitted).
The genesis of this doctrine is the judicial recognition that most insurance contracts, rather than being the result of anything resembling equal bargaining between the parties, are truly contracts of adhesion in which many insureds face two options: (1) accept the standard insurance policy offered by the insurer, or (2) go without insurance.
Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 42, 354 Mont. 15, 221 P.3d 666 (citation and internal quotation marks omitted). The doctrine “is inapplicable where the terms of the policy at issue clearly demonstrate an intent to exclude coverage” because “expectations which are contrary to the clear exclusion from coverage are not objectively reasonable.” Fisher, ¶ 20 (citations and internal quotation marks omitted).
¶16 There is no legal support for First American’s contention that the reasonable expectations doctrine applies only when an insurance policy provision is ambiguous. The question of whether a provision is sufficiently “clear” to render the reasonable expectations doctrine inapplicable is different from the question of whether a provision is ambiguous. “If the reasonable expectations doctrine only applied when a provision was ambiguous, there would be no need for the doctrine, as Montana law independently construes ambiguous provisions against the insurer and in favor of coverage.” Fisher, ¶ 19. Accordingly, it is unnecessary for us to determine whether the specific policy language was ambiguous as a predicate to addressing the District Court’s application of the reasonable expectations doctrine.
¶17 Here, Meadow Brook expected the title insurance policy would cover its losses if the South Subdivision was not accessible to future lot owners via the three roads. This expectation was objectively reasonable, and the policy did not “clearly demonstrate an intent to exclude coverage.” Fisher, ¶ 20. First American did not dispute that it received the December 8, 2009 email from Meadow Brook’s counsel within five days of issuing its endorsement. The email clearly set forth Meadow Brook’s request for an endorsement guaranteeing legal access to the South Subdivision. Further, there would be no reason for Meadow Brook to pay significant money for an endorsement to the title policy so as to ensure that Meadow Brook would have access to the undeveloped property when, as owner of that property and owner of lots in Meadow Brook I and II, it obviously had existing access without the need for any endorsement. Thus, the District Court did not err in concluding that Meadow Brook could reasonably expect its claims to be covered by the policy.
¶18 We next address First American’s argument that the District Court incorrectly applied one exclusion set forth in the title insurance policy while ignoring another applicable exclusion completely. “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application which is a part of the policy.” Section 33-15-316, MCA. The title insurance policy provides in pertinent part: “The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys’ fees, or expenses that arise by reason of... the subdivision of the land” or by reason of “[d]efects, hens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant.” First American maintains these exclusions preclude coverage for Meadow Brook’s claim, notwithstanding the endorsement. We disagree. The special access endorsement states: “To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.” Thus, by its very terms, the endorsement expressly overrides any provisions of the insurance contract that are inconsistent with an express provision of the endorsement. Because the exclusions are inconsistent with the endorsement, the District Court did not err in refusing to apply the foregoing exclusions.
¶19 First American also argues that the District Court’s finding regarding public access was incorrect. We agree. Public access was not at issue; rather, at issue was a private road easement that would be open to use by the individuals who would be building homes in the South Subdivision. However, we nonetheless determine the District Court did not err in granting Meadow Brook’s motion for summary judgment. We will uphold a district court’s rulings that are correct regardless of the court’s reasoning in reaching the decision. Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 80, 338 Mont. 41, 164 P.3d 851 (citations omitted).
¶20 Because we affirm the District Court’s order granting Meadow Brook’s motion for partial summary judgment and denying First American’s motion for partial summary judgment, we need not reach First American’s argument that the District Court erred in refusing to revise its order pursuant to M. R. Civ. P. 54(b)(1).
CONCLUSION
¶21 For the foregoing reasons, we affirm the District Court’s orders granting Meadow Brook’s motion for partial summary judgment, denying First American’s motion for partial summary judgment on the breach of contract claim, and denying First American’s M. R. Civ. P. 54(b)(1) motion to amend.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and RICE concur.
|
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CHIEF JUSTICE MCGRATH
delivered the Opinion of the Court. ¶1 Abraham B. Morrow and Betty Jean Morrow appeal from an order of the First Judicial District Court, Lewis and Clark County, granting Defendant Bank of America’s motion for summary judgment. We affirm in part, reverse in part, and remand.
¶2 The following issues are presented for review:
¶3 Issue One: Whether the District Court erred in finding the Morrows failed to establish the existence of an oral contract for modification of their loan.
¶4 Issue Two: Whether the District Court erred in finding that Bank of America owed no common law or fiduciary duty to the Morrows.
¶5 Issue Three: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of negligent misrepresentation.
¶6 Issue Four: Whether the District Court erred in finding that the Statute of Frauds precluded the Morrows’ claims of actual fraud, constructive fraud, and violations of the Montana Consumer Protection Act.
¶7 Issue Five: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of actual fraud.
¶8 Issue Six: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of constructive fraud.
¶9 Issue Seven: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’claim under the Montana Consumer Protection Act.
PROCEDURAL AND FACTUAL BACKGROUND
¶10 Abraham B. Morrow and Betty Jean Morrow, husband and wife, are the owners of a home on fifty acres of land outside White Sulphur Springs, Montana. The Morrows, who are from South Carolina, built the home in 2006 and planned to spend their retirement there. This case arises from the Morrows’ attempts to secure a modification of their home loan, serviced by Bank of America, through the federal Home Affordable Modification Program (HAMP).
¶11 HAMP is intended to help homeowners in default or at immediate risk of default on their home loans by modifying their monthly payments to affordable levels. The program requires participating loan servicers to execute a servicer participation agreement and service eligible loans according to a uniform modification process. The process begins with a Trial Period Plan, under which the homeowner makes reduced payments for three months, while the loan servicer verifies income and other eligibility information. At the end of the trial period, if the homeowner has successfully made the trial payments and if eligibility has been verified, the modification is made permanent. At the time relevant to the Morrows’ claims, only loans secured by the borrower’s primary residence were eligible for HAMP.
¶12 The Morrows’ home was financed by Quicken Loans for $291,200.00, secured by a deed of trust. The loan was to be repaid over a fifteen-year term at 4.99% interest, with monthly payments of $2,301.28. The loan was subsequently sold to Countrywide. Bank of America is the successor by merger to Countrywide and BAC Home Loans Servicing, LP.
¶13 In 2009, the Morrows lost most of their anticipated retirement income when the purchaser of two businesses they had owned in South Carolina defaulted on his payments. The Morrows resumed control of one of the businesses and returned to South Carolina to manage it until they could find a new buyer. From February2009until May 2012, they spent most of their time in South Carolina, returning to the Montana property for only six to eight weeks of each year. The Morrows first contacted Bank of America to discuss a modification of their loan in May 2009, beginning a process that would continue for nearly two years.
¶14 The Morrows remained current on their payments until November 2009. They claim that in October 2009, a Bank of America employee informed them they should intentionally miss the following month’s payment to become eligible for a modification. Bank of America denies its employees would instruct a borrower to intentionally default, and argues that the Morrows defaulted because they could not afford their payments.
¶15 On December 8, 2009, the Morrows spoke with Sunil Kumar, a Bank of America representative from Hyderabad, India, who identified himself as “Brian.” According to the Morrows, Kumar told them they were “locked” for a modification with trial payments of $1,239.99. Kumar explained to the Morrows they would be required to make the trial payments for three to four months. At the end of that period, if the Morrows had successfully made the trial payments, the modification would be made permanent. The modification, according to the Morrows, extended the period of the loan from fifteen to forty years and reduced the interest rate from 4.99% to 2%. The Morrows believed the modification had been approved, subject to execution of the documents and completion of the trial period. Bank of America claims the Morrows were informed during this conversation that they were only applying for a modification and had not yet been approved. Kumar has no specific recollection of his conversation with the Morrows, but denies he would tell a customer over the phone that they were approved for a modification.
¶16 The Morrows made their first trial payment of $1,239.99 in December 2009. They also submitted financial documentation including their tax return, bank statement, and employment verification. On February 16,2010, Bank of America sent the Morrows a notice of intent to accelerate indicating their loan was in default. Mr. Morrow claims he called Bank of America on March 2,2010 and spoke with an employee named “Ron,” who instructed him to ignore the letter and continue making the reduced payments. Bank of America records indicate that on March 2, 2010, an employee named Rohitash S. Baneijee advised Mr. Morrow that the account was under review. Baneijee also noted that the Morrows intended to pay the trial amount by the end of the month. The Morrows continued to make monthly payments of $1,239.99 until February 2011.
¶17 On March 3,2010, the day after Baneijee informed Mr. Morrow his account was under review, Bank of America issued another notice of intent to accelerate. On March 16, 2010, Bank of America sent a letter to the Morrows acknowledging receipt of the financial information they had submitted in December 2009. The letter, issued over ninety days after the Morrows had sent their financial information to Bank of America, also indicated that “receipt of your documentation starts the review process, which may take up to 45 days to complete.”
¶18 On April 22, 2010, Bank of America sent a form letter to the Morrows inviting them to apply for HAMP. The letter stated:
Once we receive all of your documents, we will validate your information and check your eligibility. You can expect to hear back from us within 10 business days. If you qualify for the program, you will enter a three month Trial Period Plan where you will make a monthly trial period payment for three months.... You will receive a permanent modification if you successfully make all of your Trial Period Plan payments and you are notified in writing that your modification has been approved.
As long as you comply with the terms of the Trial Period Plan, we will not start foreclosure proceedings. If foreclosure proceedings have already started, we will not conduct a foreclosure sale as long as you comply with the terms of the Trial Period Plan.
According to the Morrows, by the time they received this letter, they had already been making trial payments for at least four months.
¶19 On May 24, 2010, the Morrows filled out a Request for Modification and Affidavit as required under HAMP. The Morrows certified that the property was owner-occupied and they intended to reside there for the next twelve months. On May 26, 2010, Bank of America sent the Morrows a letter requesting additional documentation. On July 8, 2010, Bank of America sent the Morrows another notice of intent to accelerate. On August 6,2010, the Morrows received another request for additional documentation, and on August 31, 2010, they received another notice of intent to accelerate. The Morrows claim each time they received a notice, they contacted Bank of America, and each time, a Bank of America employee instructed them to ignore the notice and continue making the modified payments.
¶20 In October 2010, the Morrows were informed their modification had been denied due to missing or incomplete paperwork. Mr. Morrow filed a complaint with the Office of the Comptroller of the Currency. Bank of America assigned a liaison, Luke Mai, to handle the Morrows’ account. Mr. Morrow claims that in December 2010, Mai informed him over the phone that the modification had been approved. Mai does not recall his conversations with Mr. Morrow, but claims it is not his standard practice to verbally approve a modification for clients.
¶21 On January 11, 2011, the Morrows received another letter indicating their modification had been denied. In February 2011, Bank of America rejected the Morrows’ payment of $1,239.99 and scheduled a trustee’s sale of the property. The Morrows’ complaints to Bank of America were assigned to unit manager Jesse Vasquez. On March 23, 2011, Vasquez explained that the modification had been denied because the Morrows appeared to reside in South Carolina, and the Montana property was not their primary residence.
¶22 The Morrows filed a complaint in the District Court of Lewis and Clark County on May 6, 2011, which was later amended to state the following claims: oral contract established and breached; negligence, negligent misrepresentation, and tortious breach of the covenant of good faith and fair dealing; fraud; and violation of the Montana Consumer Protection Act (MCPA). Both parties moved for summary judgment, and the District Court granted summary judgment to Bank of America on April 3,2013.
¶23 The District Court first concluded that the Morrows’ breach of contract claim was barred by the Statute of Frauds, which requires certain contracts to be made in writing. The District Court also rejected the Morrows’ claims of negligence, negligent misrepresentation, and tortious breach of the covenant of good faith and fair dealing, concluding Bank of America owed no duty to the Morrows. The District Court concluded that the Morrows’ claims for fraud and violation of the MCPA were also barred by the Statute of Frauds, because they presented alternative theories of enforcement of the oral agreement to modify the loan. The Morrows appealed to this Court, seeking reversal of the grant of summary judgment.
STANDARD OF REVIEW
¶24 We review a district court’s grant of summary judgment de novo, applying the same criteria as the district court under M. R. Civ. P. 56(c). Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082. Summary judgment is appropriate where no genuine issues of material fact exist and where the moving party is entitled to judgment as a matter of law. Clark v. Eagle Sys., 279 Mont. 279, 283, 927 P.2d 995, 997 (1996). The moving party must establish there is no genuine factual issue which would entitle the non-moving party to recover. Clark, 279 Mont. at 283, 927 P.2d at 997. If the moving party meets this burden, the non-moving party must then present evidence, in affidavits or other sworn testimony, demonstrating a genuine factual issue exists. Yarbro, Ltd. v. Missoula Fed. Credit Union, 2002 MT 152, ¶¶ 9-10, 310 Mont. 346, 50 P.3d 158. All reasonable inferences from the factual record must be drawn in favor of the non-moving party. Clark, 279 Mont. at 284, 927 P.2d at 998. Summary judgment is an extreme remedy, which should never take the place of a trial. Clark, 279 Mont. at 283, 927 P.2d at 997.
DISCUSSION
¶25 Issue One: Whether the District Court erred in finding that the Morrows failed to establish the existence of an oral contract for modification of their loan.
¶26 A promissory note is a written contract, and may be modified in writing or by an executed oral agreement. Section 28-2-1602, MCA; Nimmick v. Hart, 248 Mont. 1, 14, 808 P.2d 481, 490 (1991). An executed oral agreement exists where the obligations of both parties have been fully performed, and nothing remains to be done by either party. Winkel v. Fam. Health Care, P.C., 205 Mont. 40, 45, 668 P.2d 208, 210 (1983); Hart v. Billings Pub. Stockyards, 157 Mont. 345, 356-57, 486 P.2d 120, 126 (1971); Contl. Oil Co. v. Bell, 94 Mont. 123, 134, 21 P.2d 65, 67 (1933). Performance by only one party is not sufficient. See e.g. Contl. Oil Co., 94 Mont. at 134, 21 P.2d at 67.
¶27 The Morrows claim that Bank of America offered to modify their home loan by reducing the interest rate and reamortizing the payments over forty years. The modified terms were never reduced to writing. Therefore, the agreement is enforceable only if it was fully executed, with nothing left to be done by either party. Section 28-2-1602, MCA; Winkel, 205 Mont. at 45, 668 P.2d at 210. The oral agreement contemplated that Bank of America would perform by finalizing the modification of the Morrows’ loan and issuing documents reflecting their new repayment status. The Morrows were expected to perform by repaying the loan obligation under the modified terms. Undisputedly, Bank of America has not issued new documents reflecting the permanent modification, and the Morrows have not satisfied their repayment obligation. The oral agreement was not fully executed, and therefore the written contract was not validly modified. Section 28-2-1602, MCA.
¶28 Moreover, a mortgage or deed of trust “can be created, renewed, or extended only by writing, with the formalities required in the case of a grant of real property.” Section 71-1-203, MCA; § 71-1-305, MCA (deed of trust subject to all laws relating to mortgages). An agreement to extend the time for repayment of a debt secured by a mortgage or deed of trust is within the scope of § 71-1-203, MCA. See Register Life Ins. Co. v. Kenniston, 99 Mont. 191, 193-96, 43 P.2d 251, 252-53 (1935); Hastings v. Wise, 89 Mont. 325, 337-40, 297 P. 482, 484-85 (1931); Vitt v. Rogers, 81 Mont. 120, 126-30, 262 P. 164, 165-67 (1927); O.M. Corwin Co. v. Brainard, 80 Mont. 318, 324-25, 260 P. 706, 708 (1927).
¶29 That section, unchanged since its adoption in 1895,
contemplates the making of a contract assented to by the parties: the delivery by the mortgagor to the mortgagee of the mortgage, or renewal or extension. In order that notice of the existence of the mortgage, or renewal, or extension may be given to subsequent purchasers and mortgagees, the instrument must be filed with the county clerk for record.
O.M. Corwin Co., 80 Mont. at 324, 260 P. at 708. This effects the historic purpose of the Statute of Frauds and recording statutes, which serve to “ ‘give security and certainty to titles.’ ”Hinebauch v. McRae, 2011 MT 270, ¶ 23, 362 Mont. 358, 264 P.3d 1098 (quoting Great Falls Waterworks Co. v. Great N. Ry., 21 Mont. 487, 500, 54 P. 963, 967 (1898)).
¶30 The Morrows’ original promissory note provided for a repayment period of fifteen years. Mr. Morrow claims that Bank of America offered a modification which would have reamortized the loan over a period of forty years. The Morrows’ deed of trust states that it secures repayment of “all renewals, extensions, and modifications of the Note.” It also states that the debt is to be paid in full by May 1, 2023. The purported oral agreement extended the life of the security by twenty-five years, presumably to May 1, 2048. Such an extension must be made in writing, “with the formalities required in the case of a grant of real property.” Section 71-1-203, MCA. The agreement to extend the debt, and thereby the security for the debt, was neither written nor recorded, and its enforcement would create substantial uncertainty in the land records. We affirm the order of the District Court granting summary judgment to Bank of America on the Morrows’ breach of contract claim.
¶31 The Morrows also claim that Bank of America tortiously breached the covenant of good faith and fair dealing. Implied in every contract is a covenant of good faith, which requires “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” Section 28-1-211, MCA; Story v. Bozeman, 242 Mont. 436, 451, 791 P.2d 767, 776 (1990), overruled in part, Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 54, 318 Mont. 103, 79 P.3d 250. A claim may be brought for tortious breach of the covenant where a special relationship exists between the parties. Story, 242 Mont. at 451, 791 P.2d at 776. The existence of a contract, however, is a prerequisite to a claim for tortious breach of the covenant. Knucklehead Land Co. v. Accutitle, Inc., 2007 MT 301, ¶ 18, 340 Mont. 62, 172 P.3d 116. While an original contract existed between the parties, the Morrows’ claim is not based on this contract, but on the breach of the alleged oral contract to modify their loan. Therefore, we also affirm the order of the District Court granting summary judgment to Bank of America on the Morrows’ claim for tortious breach of the implied covenant of good faith and fair dealing.
¶32 Issue Two: Whether the District Court erred in finding that Bank of America owed no common law or fiduciary duty to the Morrows.
¶33 We next address the Morrows’ claims of negligence. A plaintiff in an action for negligence must offer proof of a duty, breach of that duty, causation, and damages. Hatch v. Dept. of Hwys., 269 Mont. 188, 192, 887 P.2d 729, 732 (1994). The existence of a duty is a question of law for determination by the court. Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 17, 342 Mont. 335, 181 P.3d 601. Once a duty has been established, the breach of that duty is a question of fact to be resolved by a jury. Nelson v. Driscoll, 1999 MT 193, ¶ 40, 295 Mont. 363, 983 P.2d 972 (citing Smith v. Kerns, 281 Mont. 114, 117, 931 P.2d 717, 719 (1997)).
¶34 We recognize at the outset that a bank has no duty to modify or renegotiate a defaulted loan. Mont. Bank, N.A. v. Ralph Meyers & Son, Inc., 236 Mont. 236, 244, 769 P.2d 1208, 1213 (1989). Furthermore, “[t]he relationship between a bank and its customer is generally described as that of a debtor and creditor and as such does not give rise to fiduciary responsibilities.” Deist v. Wachholz, 208 Mont. 207, 216, 678 P.2d 188, 193 (1984) (internal citation omitted). However, where a bank goes beyond the ordinary role of a lender of money and actively advises customers in the conduct of their affairs, the bank may owe a fiduciary duty. Deist, 208 Mont. at 216-17, 678 P.2d at 193.
¶35 The complexity of modem banking and credit transactions, in particular, may “ ‘thrust a bank into the role of an advisor, thereby creating a relationship of trust and confidence....’ ” Deist, 208 Mont. at 216, 678 P.2d at 193 (quoting Tokarz v. Frontier Fed. Sav. & Loan Assn., 656 P.2d 1089, 1092 (Wash. App. Div. 3 1982)). A bank owes a fiduciary duty only when it gives advice “other than that common in the usual arms-length debtor/creditor relationship.” Coles Dept. Store v. First Bank, N.A., 240 Mont. 226, 229, 783 P.2d 932, 934 (1989). We have found a fiduciary duty where the borrower has relied on the bank’s advice in financial matters over the course of a long and exclusive relationship. Deist, 208 Mont. at 217-18, 678 P.2d at 193-94 (finding fiduciary relationship where widow had been advised by bank officer for over twenty years).
¶36 If the borrower has not been advised by the bank or has not relied on that advice, no fiduciary relationship exists. Coles Dept. Store, 240 Mont. at 230, 783 P.2d at 934 (no fiduciary duty where decisions about management of department store were made with little, if any, input from bank); Simmons v. Jenkins, 230 Mont. 429, 433-34, 750 P.2d 1067, 1070 (1988) (no fiduciary duty where there was no evidence bank ever advised plaintiffs); Pulse v. N. Am. Land Title Co., 218 Mont. 275, 283, 707 P.2d 1105, 1110 (1985) (no fiduciary duty where terms of sale were not a product of the bank’s advice). No fiduciary duty arises if the borrower is also advised by others, such as legal counsel. Simmons Oil Corp. v. Holly Corp., 258 Mont. 79, 85, 852 P.2d 523, 526 (1993). Even if a fiduciary duty exists, a bank is not obligated to avoid foreclosure. Richland Natl. Bank & Trust v. Swenson, 249 Mont. 410, 418, 816 P.2d 1045, 1050 (1991). A bank may also refuse to modify or renegotiate a loan for “solid business reasons.” See Lachenmaier v. First Bank Sys., 246 Mont. 26, 34, 803 P.2d 614, 619 (1990) (citing Tresch v. Norwest Bank, 238 Mont. 511, 515, 778 P.2d 874, 876 (1989)).
¶37 The Morrows have alleged facts which, if proven, would establish that Bank of America owed them a fiduciary duty. The Morrows claim Bank of America advised them it would be in their best interests to deliberately miss a payment and default on their loan. The Morrows contend they relied on this advice when they intentionally defaulted on their mortgage hoping to qualify for a modification. The Morrows were not advised by any other parties when they made this decision. The pattern of active advising alleged by the Morrows continued for over a year, with regular and frequent contacts between the parties. Throughout this period, the Morrows claim Bank of America continued to advise them to pay a reduced amount each month and ignore notices of default. Instructing a borrower not to repay a loan, to pay less than the amount required by the loan documents, or to ignore notices of impending foreclosure and avoid curing a default is not the type of advice “common in the usual arms-length debtor/creditor relationship.” Coles Dept. Store, 240 Mont. at 229, 783 P.2d at 934. While the Morrows stood at arm’s length to their lender in negotiating the initial loan, once their loan was in default they had little choice but to continue placing their trust in the bank. See Lachenmaier, 246 Mont. at 34, 803 P.2d at 619 (no fiduciary relationship where borrower could transfer loans elsewhere). It is unrealistic to say Bank of America and the Morrows continued to hold equal footing throughout the negotiations. See Stone v. Davis, 419 N.E.2d 1094, 1098 (Ohio 1981) (“while a bank and its customer may be said to stand at arm’s length in negotiating the terms and conditions of a mortgage loan, it is unrealistic to believe that this equality of position carries over into the area of loan processing....”).
¶38 The recent foreclosure crisis has led to many cases alleging breaches of duty by mortgage servicers, and these cases have not reached uniform results. Compare Ansanelli v. JPMorgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 32350 at **21-22 (N.D. Cal. March 28, 2011) (No. C 10-03892 WHA), with Lueras v. BAC Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 820 (Cal. App. 4th Dist. 2013). Some courts have held that a mortgage servicer actively engaging with a borrower, particularly in the modification context, stands in a different relation to the borrower than does a traditional “silent lender.” Ansanelli, 2011 U.S. Dist. LEXIS at **21-22. Those courts have found, as we do today, that special circumstances, if proven, could support a fiduciary duty where “Defendant went beyond its conventional role as a loan servicer by soliciting Plaintiffs to apply for a loan modification and by engaging with them for several months....” Crilley v. Bank of Am., N.A., 2012 U.S. Dist. LEXIS 58469 at **27-29 (D. Haw. April 26, 2012) (Civil No. 12-00081 LEK-BMK); Ansanelli, 2011 U.S. Dist. LEXIS at **21-22.
¶39 We repeat that the duty owed by Bank of America was not the duty to avoid foreclosure or to grant a modification of the loan. Richland Natl. Bank & Trust, 249 Mont. at 418, 816 P.2d at 1050; Lachenmaier, 246 Mont. at 34, 803 P.2d at 619 (citing Tresch, 238 Mont. at 515, 778 P.2d at 876). Under the facts alleged, Bank of America owed a duty to manage the modification process in a manner that would not cause the Morrows to suffer loss or injury by reason of its negligence. The Morrows allege that on several occasions, Bank of America said their application would be processed under HAMP. While HAMP does not provide a private right of action and does not itself create a duty of care, reference to its provisions may provide evidence of a breach of an already existing duty. Mackenzie v. Flagstar Bank, FSB, 738 F.3d 486, 495-96 (1st Cir. 2013). Drawing all reasonable inferences in the Morrows’ favor, we conclude they may proceed to trial on the theory that Bank of America owed them a fiduciary duty in the processing of their application for a loan modification. Accordingly, we look to the federal guidelines in effect when their loan was under consideration to further define the standards to which Bank of America had to conform its conduct, if the evidence establishes the basis for imposition of such a duty.
¶40 Servicers participating in HAMP “should provide the borrower with information designed to help them understand the modification terms that are being offered and the modification process.” Introduction of the Home Affordable Modification Program, Supp. Directive 09-01 at *13 (U.S. Treas. Dept., April 6, 2009). Communications with the borrower should minimize potential confusion and reduce the risks associated with the transaction. Supp. Directive 09-01 at *13. Servicers should respond to inquiries and complaints with “timely and appropriate responses and resolution.” Supp. Directive 09-01 at *13. The trial payment period that comprises the first step of a HAMP modification is “three months in duration,” during which the servicer must service the loan “in the same manner as it would service a loan in forbearance.” Supp. Directive 09-01 at * 17. The servicer is also responsible for determining the borrower’s eligibility. Supp. Directive 09-01 at *15. If the servicer determines the borrower is not eligible, the servicer must “promptly communicate” that information to the borrower. Supp. Directive 09-01 at *15.
¶41 The facts alleged by the Morrows, if proven, would demonstrate that Bank of America failed to provide them with accurate information about the modification process; failed to minimize the confusion and risk associated with the modification; and failed to timely respond and resolve their inquiries and complaints. The Morrows also allege that Bank of America placed the loan in default, rather than in forbearance; failed to determine eligibility within the usual three-month period; and failed to promptly communicate its eligibility decision. The Morrows claim Bank of America’s excessive delays in processing the modification significantly increased the deficiency they owed, making foreclosure all but inevitable.
¶42 Bank of America contests these factual allegations, claiming it accurately explained to the Morrows the servicing status of their loan; did not initiate foreclosure until after the application for modification had been denied; and was justified in taking several months to process the application because the Morrows’ documentation raised questions about their residency status. Bank of America also denies advising the Morrows to miss a payment or ignore notices of default. It is evident there are genuine issues of material fact regarding the Morrows’ claim for negligence. The District Court erred by granting summary judgment to Bank of America, and we reverse.
¶43 Issue Three: Whether the District Court erred by granting summary judgment to Bank of America on the Morrows’ claim of negligent misrepresentation.
¶44 In addition to allegations that Bank of America was negligent in its processing of their application for modification, the Morrows allege Bank of America negligently misrepresented the status of their loan. The District Court did not address the Morrows’ claim of negligent misrepresentation in its original Order. It then issued an Addendum to that Order, in which it stated, “For the reasons set forth in the Court’s discussion of the negligence and fraud counts, summary judgment is also granted to Defendants on the claim of negligent misrepresentation.” The District Court failed to address the specific elements of a negligent misrepresentation claim, as distinct from either negligence or fraud. We address those elements here.
¶45 We have adopted the following definition of negligent misrepresentation:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552 (1977); State Bank v. Maryann’s, 204 Mont. 21, 33, 664 P.2d 295, 301 (1983); Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 197 Mont. 1, 12, 640 P.2d 453, 458-59 (1982). In Kitchen Krafters v. Eastside Bank, we expanded upon this definition by adopting the following elements of negligent misrepresentation:
a) the defendant made a representation as to a past or existing material fact;
b) the representation must have been untrue;
c) regardless of its actual belief, the defendant must have made the representations without any reasonable ground for believing it to be true;
d) the representation must have been made with the intent to induce the plaintiff to rely on it;
e) the plaintiff must have been unaware of the falsity of the representation; it must have acted in reliance upon the truth of the representation and it must have been justified in relying upon the representation;
f) the plaintiff, as a result of its reliance, must sustain damage.
Kitchen Krafters v. Eastside Bank, 242 Mont. 155, 165, 789 P.2d 567, 573 (1990), overruled in part, Busta v. Columbus Hosp., 276 Mont. 342, 370, 916 P.2d 122, 139 (1996). Since Kitchen Krafters was decided, we have continued to cite both the original language of the Restatement and the Kitchen Krafters elements. Compare Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105, ¶ 25, 365 Mont. 71, 278 P.3d 1002 (citing Kitchen Krafters elements), with W. Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 35, 359 Mont. 34, 249 P.3d 35 (citing Restatement (Second) of Torts § 552), and Mattingly v. First Bank, 285 Mont. 209, 215-16, 947 P.2d 66, 70 (1997) (citing both Kitchen Krafters, 242 Mont. at 165, 789 P.2d at 573, and Restatement (Second) of Torts § 552).
¶46 The Restatement definition tends to focus on business transactions. Restatement (Second) of Torts § 552. We have recognized that negligent misrepresentations may occur outside of this context. Jackson v. Dept. of Fam. Servs., 1998 MT 46, ¶ 36, 287 Mont. 473, 956 P.2d 35 (applying Kitchen Krafters elements of negligent misrepresentation to claims by prospective parents about adoption process). At the same time, we have continued to apply the Restatement definition, particularly in the context of professional negligence. W. Sec. Bank, ¶ 35 (applying Restatement definition to negligent misrepresentation claims against accountant). We are faced today with defining the appropriate duty of care owed by a bank to its customers, and so we find it necessary to resolve this disparity with respect to banking transactions. We hold that a claim of negligent misrepresentation against a financial institution is governed by the definition in the Restatement (Second) of Torts § 552, which we adopted in State Bank, 204 Mont. at 33, 664 P.2d at 301, and Brown, 197 Mont. at 12, 640 P.2d at 459-60.
¶47 The Morrows allege Bank of America made several false statements regarding the servicing of their existing loan and the status of their application for modification: in October 2009, Bank of America told the Morrows they should intentionally default on their payments to be considered for a modification; in December 2009, Sunil Kumar said they were approved for a HAMP modification, which would be finalized subject to the trial payment period; in March 2010, Rohitash S. Banexjee told them to disregard notices of default and impending foreclosure and continue making reduced payments; and in December 2010, Luke Mai said their modification had been approved. Bank of America claims these statements were never made, demonstrating the existence of genuine issues of material fact. Bank of America also insists the Morrows’ modification was never approved, and that instructing a borrower to default is contrary to its policies and procedures.
¶48 The alleged statements were made in the course of Bank of America’s business as a loan servicer for the guidance of the Morrows in their loan transaction. Bank of America argues that the Morrows suffered no pecuniary loss because of its alleged misconduct. The Morrows have asserted losses including lost time from Mr. Morrow’s accounting work, travel expenses, loss of personal lines of credit, and increased costs due to negative credit reporting. The Morrows cannot recover for losses related to credit reporting, because state statutory causes of action premised on damages directly related to a bank’s credit reporting duties are preempted by the Fair Credit Reporting Act. 15 U.S.C. § 1681t(b)(l)(F) (2006); Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, ¶ 23, 369 Mont. 444, 299 P.3d 338. The validity of the Morrows’ remaining damages is a question for determination by a finder of fact. See Rohrer v. Knudson, 2009 MT 35, ¶ 32, 349 Mont. 197, 203 P.3d 759.
¶49 Bank of America also argues the Morrows did not rely on the information it supplied. Bank of America argues the Morrows’ continuing default was simply due to their inability to afford the payments. The Morrows have offered testimony that at the time Bank of America instructed them to default, they had the financial resources available to continue making payments for the immediate future, and therefore defaulted only at Bank of America’s direction. A genuine issue of material fact exists as to whether the Morrows’ default was caused by their reliance on Bank of America’s alleged misrepresentations.
¶50 Bank of America further argues that any reliance by the Morrows was not justified, because they knew their modification had not been approved. The Morrows have presented evidence of confusing and directly conflicting communications from Bank of America. These communications informed the Morrows in one instance that their modification was pending and in another that it was approved. They were told by mail their loan was in default, but over the phone that they were in a modification status. In essence, Bank of America claims the Morrows were entitled to rely on one set of statements, but not the other. The conflicting communications issued by Bank of America raise genuine questions of material fact regarding whether the Morrows’ reliance was justified.
¶51 Finally, the allegations by the Morrows raise questions of fact regarding whether Bank of America “exercise[d] reasonable care or competence in obtaining or communicating the information.” Restatement (Second) of Torts § 552. At the least, the Morrows’ allegations that they received directly conflicting information from Bank of America regarding the status of their loan indicates a lack of reasonable care in communicating the information. The District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of negligent misrepresentation. We reverse.
¶52 Issue Four: Whether the District Court erred in finding that the Statute of Frauds precluded the Morrows’ claims of actual fraud, constructive fraud, and violations of the Montana Consumer Protection Act.
¶53 The District Court concluded that, because enforcement of the alleged oral contract was precluded by the Statute of Frauds, the same was true of the Morrows’ fraud-related claims. We have held that “[t]he Statute of Frauds applies to liabilities based on contract, and not to theories of liabilities based on fraud or negligent misrepresentation.” Phil-Co Feeds v. First Natl. Bank, 238 Mont. 414, 421, 777 P.2d 1306, 1311 (1989). The Statute of Frauds is a bar to the enforcement of certain oral contracts, but it is not a rule of evidence, and it does not preclude admission of evidence of an oral agreement for other purposes. LaBarre v. Shepard, 84 F.3d 496, 500 (1st Cir. 1996); Restatement (Second) of Contracts § 143 (1981) (“The Statute of Frauds does not make an unenforceable contract inadmissible in evidence for any purpose other than its enforcement in violation of the statute.”).
¶54 As its name suggests, the Statute of Frauds is primarily concerned with the prevention of fraud. Hinebauch, ¶ 23. The Statute of Frauds cannot “ ‘be used as a shield or cloak to protect fraud, or as an instrument whereby to perpetrate a fraud, or as a vehicle or means of culpable wrong, injustice, or oppression.’ ” State ex rel. Farm Credit Bank v. Dist. Ct., 267 Mont. 1, 26-27, 881 P.2d 594, 609 (1994) (quoting 73 Am. Jur. 2d Statute of Frauds § 562 (1974)). A claim of fraud is therefore not barred by the Statute of Frauds, even if the claim relies on evidence of an oral agreement that would be unenforceable in contract. See Phil-Co Feeds, 238 Mont. at 421, 777 P.2d at 1311; 37 Am. Jur. 2d Fraud and Deceit § 92 (“False representations of existing or current facts are actionable even if combined with promises as to future events.”). Nevertheless, a claim of fraud may not serve as an alternative means of enforcing an oral agreement within the Statute of Frauds, because “ ‘the breach of a promise which the law does not regard as binding is not a fraud.’ ” Austin v. Cash, 274 Mont. 54, 62, 906 P.2d 669, 674 (1995) (quoting Schwedes v. Romain, 179 Mont. 466, 473, 587 P.2d 388, 392 (1978)).
¶55 The Morrows are not merely seeking to enforce an oral agreement. Independent of their allegations that Bank of America promised to grant them a modified loan, they also allege Bank of America misrepresented the status of their existing loan and serviced that loan in an unfair and deceptive manner. The District Court erred in concluding that the Statute of Frauds precluded the Morrows’ claims of actual fraud, constructive fraud, and violations of the MCPA. We now address the merits of each of these claims in turn.
¶56 Issue Five: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of actual fraud. ¶57 A party asserting a claim of actual fraud must establish the following elements:
(1) a representation; (2) the falsity of that representation; (3) the materiality of the representation; (4) the speaker’s knowledge of the representation’s falsity or ignorance of its truth; (5) the speaker’s intent that the representation should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the representation’s falsity; (7) the hearer’s reliance upon the truth of the representation; (8) the hearer’s right to rely upon the representation; and (9) the hearer’s consequent and proximate injury or damages caused by their reliance on the representation.
Franks v. Kindsfather, 2005 MT 51, ¶ 17, 326 Mont. 192, 108 P.3d 487. Once a prima facie case is established, “[ajctual fraud is always a question of fact.” Franks, ¶ 18 (citing § 28-2-404, MCA).
¶58 The Morrows’ claim of fraud rests on the same factual allegations as their claim of negligent misrepresentation. Supra ¶ 47. We have already noted in our discussion of negligent misrepresentation that the Morrows’ allegations raise genuine issues of material fact regarding whether Bank of America made false representations; whether the Morrows knew of the falsity of the representations; whether the Morrows relied on those representations; whether their reliance was justified; and whether they were damaged as a result. Supra ¶¶ 47-50. As we also noted, it does not appear to be contested that the statements, if made, were intended to guide the Morrows in repaying their loan. Supra ¶ 48. Under the facts alleged, it is clear the statements were material in that they led directly to the Morrows’ default and subsequent foreclosure proceedings.
¶59 The Morrows must also show that Bank of America made the alleged statements with knowledge of their falsity or ignorance of their truth. Franks, ¶ 17. The Dissent argues that evidence of a fraudulent intent or intent to deceive is required to establish a prima facie case of actual fraud. Dissent, ¶ 89. Fraud does not require knowledge of the statement’s falsity. Franks, ¶ 17. The requisite knowledge may also be established where the defendant is ignorant of whether the statement is true. Franks, ¶ 17. A statement made with “reckless disregard for the truth” is sufficient. Brown, 197 Mont. at 11, 640 P.2d at 458. The “intent to deceive or dishonesty of purpose” to which our cases have referred pertains to the “fifth element,” which is the defendant’s intent that its statement be relied upon. Town of Geraldine v. Mont. Mun. Ins. Auth., 2008 MT 411, ¶ 28, 347 Mont. 267, 198 P.3d 796. Thus, the Morrows must establish that Bank of America “made a representation with the ‘intent it be relied upon’ to satisfy the intent element of a prima facie fraud claim.” W. Sec. Bank, ¶ 61 (citing Durbin v. Ross, 276 Mont. 463, 469, 916 P.2d 758, 762 (1996)).
¶60 The Morrows have produced evidence of a multitude of conflicting communications from Bank of America regarding the status of both their existing loan and their application for a modification. They have also produced evidence of communications regarding Bank of America’s loan servicing policies, which Bank of America says do not accurately represent its policies. This evidence raises genuine issues of material fact regarding whether the representatives who allegedly made these statements did so despite their ignorance of whether the statements were true. The Morrows have stated a prima facie case of fraud, and the factual issues they have raised should now be resolved by a jury. Franks, ¶ 18. We therefore reverse the order of the District Court granting summary judgment to Bank of America on the Morrows’ claim of actual fraud.
¶61 Issue Six: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of constructive fraud.
¶62 Constructive fraud is a breach of duty which, without fraudulent intent, creates an advantage for the breaching party by misleading another person to that person’s prejudice. Section 28-2-406, MCA. The Dissent argues that constructive fraud, as defined by statute, provides only grounds for rescinding a contract. Dissent, ¶ 95. We find several cases allowing a plaintiff to seek damages for constructive fraud independently of any action to rescind a contract. Mattingly, 285 Mont. at 218-20, 947 P.2d at 71-73 (recognizing claim for constructive fraud where no request for rescission was brought); Lee v. Armstrong, 244 Mont. 289, 295, 798 P.2d 84, 88 (1990) (awarding damages for actual and constructive fraud where defendant was not a party to the contract; damages were therefore “clearly not rescission or breach of contract damages”); McGregor v. Mommer, 220 Mont. 98, 108-09, 714 P.2d 536, 542-43 (1986) (question of constructive fraud properly submitted to jury although remedy of rescission was barred by laches). This precedent leads us to disagree with the conclusion of the Dissent that the Morrows’ claim of constructive fraud must fail because they do not seek to rescind a contract. Dissent, ¶ 95.
¶63 We have already determined that, based on the facts alleged, Bank of America owed a fiduciary duty to the Morrows. Supra ¶ 37. If the facts establishing this duty are not ultimately proven, however, we note that a fiduciary duty is not required to support a claim of constructive fraud. Mattingly, 285 Mont. at 218, 947 P.2d at 72; McGregor, 220 Mont. at 109, 714 P.2d at 543 (“no fiduciary or confidential relationship need exist between the parties to justify a finding of constructive fraud.”). Constructive fraud “ ‘merely requires the establishment of a duty.’ ” Mattingly, 285 Mont. at 218, 947 P.2d at 72 (quoting McJunkin v. Kaufman & Broad Home Sys., 229 Mont. 432, 439, 748 P.2d 910, 915 (1987)).
¶64 Even without a fiduciary duty, a duty of disclosure may arise in the following circumstances: “ ‘one who speaks must say enough to prevent his words from misleading the other party; one who has special knowledge of material facts to which the other party does not have access may have a duty to disclose these facts to the other party....’ ” Deist, 208 Mont. at 216, 678 P.2d at 193 (quoting Tokarz, 656 P.2d at 1092). A duty sufficient to support a finding of constructive fraud “may exist where one party has acted to mislead the other in some way.” Mattingly, 285 Mont. at 219, 947 P.2d at 72. In Lueras, the California Court of Appeal held “that a lender does owe a duty to a borrower to not make material misrepresentations about the status of an application for a loan modification ....” 163 Cal. Rptr. 3d at 821. We agree. Having provided the Morrows with information about the repayment status of their existing loan, Bank of America had a duty to ensure the information was not misleading. See Deist, 208 Mont. at 216, 678 P.2d at 193 (quoting Tokarz, 656 P.2d at 1092). Because Bank of America had access to its servicing records that the Morrows did not, it also had a duty to disclose material information about its servicing of the Morrows’ loan. See Deist, 208 Mont. at 216, 678 P.2d at 193 (quoting Tokarz, 656 P.2d at 1092).
¶65 As noted in our discussion of negligent misrepresentation, the Morrows have alleged Bank of America made several misleading statements regarding the status of their loan and their application for modification. Supra ¶ 47. The Morrows allege Bank of America gained an advantage as a result of these statements, because the Morrows made payments to the Bank for an additional fourteen months rather than immediately seeking another lender or proceeding with a short sale or foreclosure. The Morrows allege these statements also resulted in prejudice to them, because they defaulted on their loan and allowed the default to grow for months in reliance on the Bank’s representations. Again, Bank of America denies that its representatives made the allegedly misleading statements. Genuine issues of material fact exist regarding the Morrows’ claim of constructive fraud. The District Court erred in granting summary judgment to Bank of America on this claim, and we reverse.
¶66 Issue Seven: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows'claim under the Montana Consumer Protection Act.
¶67 The Montana Unfair Practices and MCPA of 1973 prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Section 30-14-103, MCA. The MCPA applies to banks engaged in consumer lending and the collection and servicing of loans. Baird v. Norwest Bank, 255 Mont. 317, 328, 843 P.2d 327, 334 (1992). A practice is unfair if it “offends established public policy and ... is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Rohrer, ¶ 31. Specifically, it is an unfair or deceptive practice when a party “states that a transaction involves rights, remedies or obligations that it does not involve.” Admin. R. M. 23.19.101(1)(1). A consumer may sue under the act if he or she has suffered “any ascertainable loss of money or property” as the result of an unfair practice. Section 30-14-133, MCA.
¶68 The Morrows claim Bank of America instructed them to default on a loan and make partial payments on that loan, while keeping them in a servicing status that required them to make full payments on that loan. The Morrows claim they were not accurately informed of their servicing status, because Bank of America told them both that they remained in regular servicing and that they were in a modification program. These conflictingrepresentations sometimes occurred within a day or two of one another, only for the cycle to be repeated again the following month. The Morrows were not granted a decision on their modification until October 2010, ten months after they had allegedly been told to make reduced payments. They were not informed of the reason for that decision until five months later, in March 2011. The Morrows’ default grew for more than a year, while Bank of America repeatedly told them to ignore it, and while the Morrows made trial payments for fourteen months.
¶69 The allegations stated by the Morrows, if true, would constitute a practice substantially injurious to consumers. See e.g. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574-75 (7th Cir. 2012) (ineffectual implementation of HAMP sufficient to state claim under Illinois Consumer Fraud and Deceptive Businesses Practice Act); Bosque v. Wells Fargo Bank, N.A., 762 F. Supp. 2d 342, 353-54 (D. Mass. 2011) (deceptive representations about eligibility for HAMP sufficient to state claim under Massachusetts Consumer Protection Act). Notably, the Morrows offered an expert report from the former Montana Commissioner of Financial Institutions, who concluded that the pattern and practice of the Bank was unfair, irresponsible, and substandard practice. Bank of America offered no competing expert testimony. The Bank denies it instructed the Morrows to miss a payment or to ignore notices of default, demonstrating the existence of genuine issues of material fact.
¶70 Bank of America also argues that the Morrows have failed to show “any ascertainable loss of money or property” as required to state a claim under the MCPA. Section 30-14-133, MCA. As we have already noted, the question of the Morrows’ damages should be resolved by a finder of fact. Supra ¶ 48. Therefore, we reverse the order of the District Court granting summary judgment to Bank of America on the Morrows’ claim for violations of the MCPA.
CONCLUSION
¶71 We affirm the District Court’s grant of summary judgment to Bank of America regarding breach of contract and tortious breach of the implied covenant of good faith and fair dealing. We reverse summary judgment on the Morrows’ claims of negligence, negligent misrepresentation, actual fraud, constructive fraud, and violations of the MCPA, and remand for further proceedings consistent with this Opinion.
JUSTICES WHEAT, COTTER, BAKER and DISTRICT JUDGE PINSKI, sitting for former JUSTICE MORRIS concur.
To determine “a special relationship in cases where it normally does not exist — such as between a bank and a customer — a court may be required to make a fact-intensive inquiry.” Gliko v. Permann, 2006 MT 30, ¶ 24, 331 Mont. 112, 130 P.3d 155. However, the conclusion drawn from the facts that a fiduciary duty exists is a question of law. Gliko, ¶ 24.
The Comptroller of the Currency of the United States examined Bank of America’s residential foreclosure processes, as a result of which the Bank stipulated to the issuance of a Consent Order. Though not determinative of this action, the Consent Order contains findings consistent with the Morrows’ allegations. The Consent Order notes that Bank of America failed to devote appropriate resources, oversight, and training to its foreclosure processes. The Consent Order required the Bank to develop a plan to ensure compliance with federal servicing guides, including those pertaining to HAMP. In re Bank of Am., N.A., Consent Order No. AA-EC-11-12 (U.S. Office of the Comptroller of the Currency, April 13, 2011).
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Jennifer Dewey (Dewey) appeals from the order of the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of Kenneth Stringer (Stringer) on Dewey’s claims for constructive fraud, deceit, and negligence. We affirm in part and reverse in part, restating the issue raised on appeal as follows:
¶2 Did the District Court err by dismissing Dewey’s tort claims on the ground that they arose strictly out of a breach of contract?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On March 12, 2012, Dewey and Stringer entered into a buy-sell agreement (Agreement) for the purchase of Dewey’s home, located in Helena. The parties utilized a standard Montana Association of Realtors form contract and were not represented by legal counsel. Stringer agreed to pay $265,000 for Dewey’s home, providing her with $2000 in earnest money. The Agreement contained a remedies provision stating:
If the Seller accepts the offer contained in this Agreement and Buyer refuses or neglects to consummate the transaction anticipated by this Agreement within the time period provided in this Agreement, the Seller may:
(1) Declare the earnest money paid by Buyer be forfeited; or
(2) Demand that Buyer specifically perform Buyer’s duties and obligations under this Agreement; or
(3) Demand that Buyer pay monetary damages for Buyer’s failure to perform the terms of this Agreement.
In an addendum attached to the Agreement, the parties agreed that Stringer would occupy Dewey’s home from April 1, 2012 until the closing date, scheduled for September 28,2012, and pay her $1300 in rent per month. The addendum contained a provision stating: “Buyer, at his/her expense, shall maintain heating, plumbing, lighting, ventilation, air-conditioning fixtures, built-in appliances, and other equipment included in the sale in normal working condition commencing on the date of occupancy.”
¶4 As agreed, Stringer moved into Dewey’s home in April and began paying rent. However, on June 29,2012, Stringer sent Dewey a letter notifying her that he had decided not to purchase the home and had vacated the premises. He paid rent for July but not August or September. Dewey retained Stringer’s final rent payment as well as the $2000 earnest-money deposit.
¶5 On October 14, 2012, Dewey filed a complaint alleging that Stringer committed constructive fi*aud and deceit by making a series of false representations about his ability and intention to purchase her home. She also claimed that Stringer negligently maintained and managed her property throughout his period of occupancy. Dewey sought both actual and punitive damages. Stringer filed for bankruptcy, but dismissed his bankruptcy petition several weeks later. Stringer answered and counterclaimed, seeking a declaration that he was entitled to the return of his $2000 earnest-money deposit under the Agreement. Thereafter, Dewey and Stringer filed cross-motions for summary judgment. Following a hearing on March 20, 2013, the District Cotut granted summary judgment in favor of Stringer on all of Dewey’s claims. The District Court also granted partial summary judgment in favor of Dewey, determining that Stringer breached the Agreement, which entitled Dewey to retain the $2000 earnest-money deposit pursuant to the remedies provision. Dewey appeals the District Court’s dismissal of her remaining claims against Stringer.
STANDARD OF REVIEW
¶6 Summary judgment is appropriate only when “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file’ ” together with any affidavits, demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Brothers v. Home Value Stores, Inc., 2012 MT 121, ¶ 6, 365 Mont. 196, 279 P.3d 157 (quoting M. R. Civ. P. 56(c)). Once the moving party meets its burden, the opposing party “must present substantial evidence essential to one or more elements of its case to raise a genuine issue of material fact.” Tin Cup Co. Water v. Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶ 22, 347 Mont. 468, 200 P.3d 60 (citation omitted). This Court reviews de novo a district court’s rulings on motions for summary judgmentEst. of Irvine v. Oaas, 2013 MT 271, ¶ 12, 372 Mont. 49, 309 P.3d 986 (citation omitted). We review a district court’s interpretation of a contract for correctness. Brothers, ¶ 6.
DISCUSSION
¶7 Did the District Court err by dismissing Dewey’s tort claims on the ground that they arose strictly out of a breach of contract?
¶8 As a general rule, when a party’s claim is based solely upon a breach of the specific terms of an agreement, the action sounds in contract. Billings Clinic v. Peat Marwick Main & Co., 244 Mont. 324, 338, 797 P.2d 899, 908 (1990). However, “ ‘a ground of liability in tort may coexist with a liability in contract, giving the injured party the right to elect which form of action he will pursue.’ ” Garden City Floral Co. v. Hunt, 126 Mont. 537, 543, 255 P.2d 352, 356 (1953) (citation omitted); accord Corp. Air v. Edwards Jet Ctr. Mont. Inc., 2008 MT 283, ¶ 49, 345 Mont. 336, 190 P.3d 1111. Such circumstances exist “if a defaulting party, by breaching the contract, also breaches a duty which he owes to the other party independently of the contract.” Boise Cascade Corp. v. First Sec. Bank, 183 Mont. 378, 392, 600 P.2d 173, 181 (1979). Separate tort liability depends on whether the breaching party violated a legal duty that would exist in the absence of a contract. Boise Cascade Corp., 183 Mont. at 392, 600 P.2d at 181-82 (citing Battista v. Lebanon Trotting Assn., 538 F.2d 111 (6th Cir. 1976)). Liability imposed under a statute exists independent of contractual duties concerning the same subject matter. Abraham v. T. Henry Constr., Inc., 249 P.3d 534, 540 (Or. 2011). There must be active negligence or misfeasance to support an independent tort claim. Garden City Floral Co., 126 Mont. at 543, 255 P.2d at 356 (citations omitted) (“There must be some breach of duty distinct from breach of contract.”).
A. Constructive Fraud and Deceit
¶9 Montana’s constructive-fraud statute defines constructive fraud as:
(1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person’s prejudice or to the prejudice of anyone claiming under that person; or
(2) any act or omission that the law especially declares to be fraudulent, without respect to actual fraud.
Section 28-2-406, MCA. In order to make out a prima facie case of constructive fraud, a plaintiff must establish the following elements: a representation; the falsity of that representation; the materiality of that representation; the speaker’s knowledge of that representation’s falsity or ignorance of its truth; the hearer’s ignorance of that representation’s falsity; the hearer’s reliance upon the truth of that representation; the hearer’s right to rely upon that representation; and the hearer’s consequent and proximate injury or damage caused by reliance on that representation. White v. Longley, 2010 MT 254, ¶ 28, 358 Mont. 268, 244 P.3d 753 (citing Town of Geraldine v. Mt. Municipal Ins. Auth., 2008 MT 411, ¶ 28, 347 Mont. 267, 198 P.3d 796). Montana’s deceit statute provides, in relevant part:
(1) One who willfully deceives another with intent to induce that person to alter the person’s position to the person’s injury or risk is liable for any damage that the person suffers.
(2) A deceit, within the meaning of subsection (1), is either:
(a) the suggestion as a fact of that which is not true by one who does not believe it to be true;
(b) the assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;
(c) the suppression of a fact by one who is bound to disclose it or who gives information of other facts that are likely to mislead for want of communication of that fact; or
(d) a promise made without any intention of performing it.
Section 27-1-712, MCA.
¶10 In support of her constructive fraud and deceit claims, Dewey contends that at the time she and Stringer entered into the Agreement, Stringer informed her that he was in the process of selling a home he owned in California, but that execution of the Agreement did not depend upon that sale. Stringer also purportedly told Dewey that he had sufficient funds to close on her home. Based on these representations, Dewey alleges that she agreed to purchase another home for herself and her daughter. Dewey further alleges that Stringer purchased property located in Boulder, Montana while hving in her home, even though he claimed to be broke at the time he moved out. Based on this conduct, Dewey states that she “now believe[s] that Mr. Stringer was intentionally false and misleading in his statements and representations... about his intention to purchase her home.” She also “think[s] Mr. Stringer’s conduct was malicious.”
¶11 The District Court dismissed Dewey’s tort claims on the ground that her injuries resulted strictly from Stringer’s breach of contract. The court reached this conclusion after applying our holding in Story v. City of Bozeman, 242 Mont. 436, 450-52, 791 P.2d 767, 775-76 (1990), where we determined that in order to establish a duty of good faith and fair dealing, absent specific statutory provisions, the parties must have a “special relationship.” The court concluded there was “no special relationship between Dewey and Stringer to establish a duty independent of the buy-sell agreement.” The court reasoned that “[b]ecause Dewey’s claim for constructive fraud fails to establish a duly independent of the buy-sell agreement, she cannot establish the elements for constructive fraud.” Likewise, the court determined that the issues raised under Dewey’s deceit claim “fall squarely within the provisions of the buy-sell agreement which specifically provided Dewey a remedy when Stringer breached the contract. Whether Stringer deceived Dewey when he entered the contract is irrelevant.” Accordingly, the court dismissed Dewey’s tort claims and determined that Dewey had exercised her contractual remedy by retaining the $2000 earnest-money deposit following Stringer’s breach.
¶12 Dewey acknowledges that the Agreement enumerates certain remedies in the event of a breach, but argues that those remedies are not exclusive and do not bar her ability to pursue additional claims in tort. She cites Glacier Campground v. Wild Rivers, Inc., 182 Mont. 389, 403, 597 P.2d 689, 696 (1978), for the rule that “[i]n the absence of a contractual provision expressly limiting the remedy or remedies available, a parly may pursue any remedy which law or equity affords, as well as the remedy or remedies specified in the contract.” Dewey argues that § 28-2-406, MCA (constructive fraud), and § 27-1-712, MCA (deceit), provide statutory duties independent of the Agreement — duties not to lie and deceive. She also contends that the District Court’s rebanee on the “special relationship” test in Story is misplaced because she has not claimed tortious breach of the covenant of good faith and fair deahng.
¶13 Stringer contends that no duty independent of the Agreement exists in this case. He argues that an independent duty arises “primarily from claims arising out of professional obhgation[s] to a client or to one’s fiduciary obbgations,” but that “[t]his Court has not found such a duty in an arm’s length transaction in which the parties have equal bargaining power.” Stringer offers that he would have been under no duty to truthfully describe whether he could buy Dewey’s property if he did not agree to buy it, and that he would have had no duty to accurately describe his finances to Dewey if not for the Agreement. Stringer argues that because his habihty in this case arises strictly under contract, Dewey cannot pursue a remedy beyond those provided in the Agreement.
¶14 We have held that, even if an action sounds in contract, “ ‘tort-type damages are... available for traditional contract-related torts such as fraud, fraudulent inducement, and tortious interference with a contract.’ ” Corp. Air, ¶ 49 (citations omitted). A fraud-based claim is not precluded by the fact that a party may also make a contract claim based on the same events. Corp. Air, ¶ 50 (dismissal of Corporate Air’s tort claims by the district court on the ground that recovery under a contract theory precludes recovery under a tort theory was error). “ ‘The incidental fact of the existence of the contract ... does not negative the responsibility of the actor when he enters upon a course of affirmative conduct which may be expected to affect the interests of another person.’ ” Jim's Excavating Serv. v. HKM Assocs., 265 Mont. 494, 502, 878 P.2d 248, 253 (1994) (citation omitted).
¶15 Based on our precedent, the prohibitions on fraudulent and deceitful conduct under Montana law are not negated simply because the parties have entered into a contract concerning the same subject matter. Section 27-1-712, MCA, sets forth an independent statutory prohibition on the willful deception of another with the intent to induce that person to detrimentally alter that person’s position. Section 28-2-406, MCA, defining constructive fraud, requires a plaintiff to establish a duty independent of the statute to implicate the statute. See H-D Irrigating, Inc. v. Kimble Props., Inc., 2000 MT 212, ¶ 25, 301 Mont. 34, 8 P.3d 95. Our constructive fraud cases make clear that such a duty exists in fiduciary relationships, Morrow v. Bank of Am., N.A., 2014 MT 117, ¶ 63, 375 Mont. 38, 324 P.3d 1167; Rowland v. Klies, 223 Mont. 360, 369, 726 P.2d 310, 316 (1986), certain commercial transactions, McJunkin v. Kaufman & Broad Home Sys., 229 Mont. 432, 439, 748 P.2d 910, 915 (1987), and other “special circumstances,” H-D Irrigating, Inc., ¶ 25 (“special circumstances may exist where one party has acted to mislead the other in some way”). Significant misrepresentations made in the course of executing a buy-sell agreement may give rise to a constructive fraud claim. See H-D Irrigating, Inc., ¶ 25 (special circumstances exist “where sellers [of real property], by words or conduct, create a false impression concerning serious impairment or other important matters and subsequently fail to disclose the relevant facts.”).
¶16 However, we need not conduct further analysis on these claims because we conclude that Dewey has failed, in any event, to set forth sufficient evidence to satisfy her burden to avoid summary judgment. In her complaint and supporting affidavit, Dewey offers several conclusory and speculative assertions regarding Stringer’s financial position and intentions of performing as he represented. Dewey claims that she “now believes that Mr. Stringer was intentionally false and misleading in his statements and representations,” and that she “think[s] Mr. Stringer’s conduct was malicious.” Summary judgment cannot be avoided by offering mere speculation. Hiebert v. Cascade Co., 2002 MT 233, ¶ 45, 311 Mont. 471, 56 P.3d 848. We conclude that Dewey’s subjective beliefs about Stringer’s statements and the fact that he purchased a different piece of property after agreeing to purchase Dewey’s, without more, is insufficient evidence to establish constructive fraud or deceit here. Although the District Court dismissed Dewey’s claims under a different analysis, “[w]e will not reverse a district court when it reaches the right result, even if it reached that result for the wrong reason.” Wells Fargo Bank v. Talmage, 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275 (citation omitted). Summary judgment was appropriate on Dewey’s constructive fraud and deceit claims.
B. Negligence
¶17 Section 27-1-701, MCA, provides:
Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.
Relatedly, § 28-1-201, MCA, which sets out Montana’s general duty of care, states: “Every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of another person’s rights.”
¶18 The District Court dismissed Dewey’s negligence claim for many of the same reasons it articulated in dismissing her constructive fraud and deceit claims — primarily that they all “arose out of the contract.” The court also explained that “Stringer’s duties as a tenant... were set forth in the buy-sell agreement,” and any obligation to maintain the property was governed by the Agreement. Similarly, Stringer argues that the liability Dewey seeks to impose arose only as a result of his entry into the Agreement, offering that he “would not be obligated to pay for the condition of the property pursuant to a negligence theory had he closed.” Dewey counters that § 27-1-701, MCA, imposed upon Stringer an independent duty “to maintain the property and use ordinary care in its occupancy ... regardless of what is stated in the Agreement.” She asserts that Stringer’s negligence resulted in over $11,000 worth of property damage to her trees and plants, toilets, sinks, showers, stove, water filters, and well.
¶19 Similar to our discussion above, §§ 27-1-701 and 28-1-201, MCA, set forth a clear statutory duty to exercise ordinary care to avoid injuring the property of another. We have previously permitted a plaintiff to recover under a negligence theory for physical damage to property resulting concurrently with a contractual breach. Bos v. Dolajak, 167 Mont. 1, 8, 534 P.2d 1258, 1261 (1975). In Bos, the plaintiffs contracted with the defendants for the erection of a silo. The defendants completed the project, but within hours, the silo blew down during a windstorm and was mostly destroyed. Bos, 167 Mont. at 4, 534 P.2d at 1259. Under these facts, we determined that the defendants’ negligence in performing this work entitled the plaintiffs “to go to the jury with instructions on damages relating both to breach of contract and to negligence.” Bos, 167 Mont. at 8, 534 P.2d at 1261 (citation omitted).
¶20 The potentially independent nature of the duty imposed under negligence law in a contract situation was also evident in Quitmeyer v. Theroux, 144 Mont. 302, 395 P.2d 965 (1964). There, the plaintiffs alleged that they had entered an oral contract with the defendants whereby the defendants agreed to care for and manage the plaintiffs’ apartment complex. Quitmeyer, 144 Mont. at 304, 395 P.2d at 966. A door was left open to the apartment complex, causing the water pipes and radiators to freeze and rupture, which extensively damaged the interior. Quitmeyer, 144 Mont. at 306-07, 395 P.2d at 967. The plaintiffs brought their claim three years after these damages were sustained. On appeal, the plaintiffs argued that their claim sounded in contract and, therefore, was governed by the contract statute of limitations. Quitmeyer, 144 Mont. at 310, 395 P.2d at 969. We disagreed, holding that the parties had failed to form an oral contract. Quitmeyer, 144 Mont. at 308-09, 395 P.2d at 968. We explained “that the pleadings and proof leave us with a clear impression that plaintiffs’ claim for relief was based strictly upon defendants’ negligence in caring for the damaged building. The claim being based on negligence would not come within a statute of limitations concerning contracts.” Quitmeyer, 144 Mont. at 311, 395 P.2d at 970.
¶21 Quitmeyer demonstrates that when property is allegedly damaged by another’s want of ordinary care, a cause of action may sound in negligence in the absence of a contract. Bos demonstrates that negligence liability may exist even if the parties have entered into contract concerning the same subject matter. Here, Dewey alleges that Stringer negligently caused significant damage to her home during his occupancy. She has raised concrete facts that, if proven, would establish “active negligence” on the part of Stringer. See Garden City Floral Co., 126 Mont. at 543, 255 P.2d at 356 (citations omitted). Stringer’s argument that Dewey’s claim would disappear if he had followed through with the Agreement and purchased her home is unavailing. It simply advances the notion that Dewey could not sue Stringer for trashing what would have become his own damaged property after closing. Stringer’s potential liability for the damaged properly is separate from his obligation under the Agreement to purchase the property and is broader than his obligation under the addendum to maintain the property “in normal working condition.” Nor does Stringer cite relevant authority for his premise that the Agreement supersedes or supplants his statutory duty to avoid negligently injuring Dewey’s property. Thus, we conclude that the District Court erred in dismissing Dewey’s negligence claim on the ground it arose solely out of duties imposed under the Agreement.
¶22 Stringer maintains that “[i]f the Court accepts [Dewey’s] position, it would endorse granting tort damages in almost every breach of contract case.” We do not agree. There is a fundamental difference between breaching a contractual duty and committing a tort. As the Oregon Supreme Court concisely explained, “Contract obligations are “based on the manifested intention of the parties to a bargaining transaction,’ whereas tort obligations are ‘imposed by law — apart from and independent of promises made and therefore apart from the manifested intention of the parties — to avoid injury to others.’ ” Abraham, 249 P.3d at 538 (citations omitted) (emphasis omitted). The breach of a purely contractual duly does not constitute the sort “active negligence or misfeasance” necessary to impose liability under tort law. See Garden City Floral Co., 126 Mont. at 543-44, 255 P.2d at 356.
¶23 Lastly, Stringer argues at length that the disjunctive list of remedies in the Agreement provides the exclusive remedy in this case. While we do not here consider the effect of the remedies provision as it applies to Stringer’s alleged breach of the Agreement, we note that the listed remedies apply only to the Buyer’s “refus[al] or neglect[] to consummate the transaction ... .” There is no mention therein of a remedy in the event that the Buyer happens to damage the subject property. Also, both the rental arrangement and corresponding contractual obligations to maintain the property are provided in the separate addendum. Thus, we cannot conclude that the disjunctive remedies provision, which applies by its terms to Stringer’s failure to close, limits Dewey's ability to maintain a negligence action for property damage incurred during Stringer’s occupancy.
¶24 Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and COTTER concur.
See also the discussion of this issue in Abraham, 249 P.3d at 540-41: “Defendants argue that this approach undermines the distinction between contract and tort and would permit every breach of contract to be brought as a tort claim. Defendants are incorrect. An example will help demonstrate the difference between actions taken in the performance of a contract that can be the basis for a contract claim only, and those that may also provide a basis for a tort claim. If an individual and a contractor enter into a contract to build a house, which provides that the contractor will install only copper pipe, but the contractor installs FVC pipe instead (assuming both kinds of pipe comply with the building code and the use of either would be consistent with the standard of care expected of contractors), that failure would be a breach of contract only. That is so because the contract defined the contractor’s obligation to use a particular material (and no other), which the contractor then failed to do. See Georgetown [Realty v. Home Ins. Co., 313 Ore. 97, 106, 831 P.2d 7, 11-12 (Or. 1992)] (stating principle). If the failure to install the copper pipe caused a reduction in the value of the house, the plaintiff would be able to recover that amount in an action for breach of contract. That would be a claim that, as this court stated in Georgetown, ‘is based solely on a breach of a provision in the contract[.]’ 313 Ore. at 106, [831 P.2d at 12] (emphasis added). On the other hand, if the contractor installed the PVC pipe in a defective manner and those pipes therefore leaked, causing property damage to the house, the homeowner would have claims in both contract and tort. The homeowner could recover in contract both for the failure to install copper pipe and for the failure to perform the contract in a reasonably skillful manner. See Cabal v. Donnelly, 302 Ore. 115, 121-22, 727 P.2d 111 (1986) (illustrating contract claim). The homeowner also would have a tort claim for property damage to the house caused by the leaking pipes if the homeowner could prove that the contractor’s failure to meet the standard of care caused the property damage. See id. (‘We see no reason to preclude a [home buyer] from claiming damages [from the home builder] in contract and in tort.’) (quoting Woodward v. Chirco Construction Co., 141 Ariz. 514, 515-16, 687 P.2d 1269, 1271 (1984)). In those circumstances, the obligation to install copper instead of PVC pipe is purely contractual; the manner of installing the pipe, however, implicates both contract and tort because of the foreseeable risk of property damage that can result from improperly installed pipes.” (Footnotes and paragraph break omitted.)
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] |
JUSTICE McKINNON
delivered the Opinion of the Court.
¶1 David Zimmerman appeals from the order of the First Judicial District Court, Lewis and Clark County, denying his motion to dismiss for lack of a speedy trial. We reverse and remand for dismissal of the charges.
¶2 The issue on appeal is whether the delay in bringing Zimmerman to trial violated his constitutional right to a speedy trial.
BACKGROUND
¶3 During the early morning hours of July 21,2012, Officer William Harrington of the City of East Helena Police Department observed a pickup truck that appeared to be exceeding the posted 25-mile-per-hour speed limit. Harrington activated his radar unit, whichregistered the pickup’s speed as 41 miles per hour. Harrington initiated a traffic stop and made contact with the driver (Zimmerman). Based on his observations at the scene, Harrington conducted a DUI investigation. Ultimately, Zimmerman was arrested for driving under the influence of alcohol, fourth or subsequent offense, a felony, in violation of §§ 61-8-401 and -731, MCA. He was also cited with misdemeanor traffic offenses, Zimmerman’s driving privileges were revoked due to his refused to submit to a preliminary breath test. See § 61-8-402, MCA.
¶4 Zimmerman made his initial appearance in Lewis and Clark County Justice Court on July 23,2012. The Justice Court scheduled a preliminary hearing under § 46-10-105, MCA, for August 3. Zimmerman retained counsel, who filed a notice of appearance on July 31 and requested that the preliminary hearing be continued due to a scheduling conflict. Counsel also represented that the assigned prosecutor would be unavailable for the two weeks immediately following August 3, 2012. The Justice Court vacated the August 3 preliminary hearing; however, the court did not reschedule the preliminary hearing and, ultimately, a preliminary hearing was never conducted.
¶5 Zimmerman was incarcerated for three days following his arrest. He borrowed money from family members in order to post bail of $10,000. Following his release, Zimmerman was prohibited from consuming alcohol and was required, as a condition of release, to submit to regular testing for alcohol use. He was given the choice of either going to the police station twice daily (every 12 hours) to provide a breath sample or, alternatively, wearing an electronic leg bracelet (a Secure Continuous Remote Alcohol Monitor, or SCRAM) that continuously monitors alcohol consumption. Zimmerman elected a leg bracelet. This option required him to report to county officials once a week to have the alcohol monitoring device checked for compliance. It also required him to pay $56 weekly for the use of the device and the monitoring program. Zimmerman wore the bracelet on his right leg continuously for the ensuing nine to ten months and was still wearing it at the time the District Court decided his speedy trial motion. He complied with the program and was found to be alcohol free throughout the pretrial period.
¶6 The State took no action in regard to Zimmerman’s case until mid-January 2013. The prosecutor later explained (in response to Zimmerman’s speedy trial motion) that the case had “fall[en] off the Court’s calendar” and “went into a state of limbo until counsel for the State realized the matter was pending without [a] date.” On January 15,2013, the prosecutor filed a motion for leave to file an information in the District Court. The court granted the motion, and an information was filed on January 15 charging Zimmerman with felony DUI and misdemeanor driving without valid liability insurance. Zimmerman made his initial appearance on January 17. At his arraignment on January 31, he entered pleas of not guilty and stated that he would be raising a speedy trial issue. The District Court set the omnibus hearing for March 21,2013, and the trial for May 6, 2013.
¶7 Zimmerman filed a motion to dismiss for denial of his right to a speedy trial on April 4, 2013. Applying the balancing test we adopted in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815, he argued that he was not responsible for any of the 289-day delay between his July 21, 2012 arrest and his May 6, 2013 trial date. He farther asserted that the State had been negligent, or failed to act diligently, in bringing him to trial. He observed that he had asserted his right to a speedy trial promptly at his first appearance before the District Court after the Information was filed, that he had not requested any continuances of his trial date, and that he had not taken any actions that would have prevented the State from prosecuting the case. Finally, Zimmerman argued that he had been prejudiced by the delay for various reasons.
¶8 The District Court held an evidentiary hearing at which Zimmerman provided testimony in support of his speedy trial motion. On the issue of prejudice, he noted that the SCRAM bracelet had been strapped to his leg continuously for eight and a half months. This had cost him over $2,000 thus far. He contended that the device limited his work as a construction and carpentry worker because, to preclude the possibility of alcohol entering his system, he had to avoid chemicals that may contain alcohol, such as pipe solder, construction glue, paint removers, and other solutions. He stated that both the existence of a pending felony charge against him and the condition of his release prohibiting him from leaving Lewis and Clark County had hindered his ability to secure stable employment which, in turn, had prevented him from providing appropriate financial support for his two-year-old daughter. Moreover, he testified that he no longer had any assets, home, or vehicle and that he had been forced to live with his brother. Zimmerman admitted that he had experienced some depression prior to his arrest, but he stated that his anxiety, stress, and depression had worsened due to the pretrial delay. He noted that he had seen a doctor for his mental health issues and was prescribed antidepressants in February 2013. Finally, Zimmerman asserted that his ability to present a defense had been impaired due to his and Officer Harrington’s fading memories of the incident.
¶9 During cross-examination, Zimmerman was asked about the six-month period between his arrest and the filing of the Information. He testified that he had maintained contact with his attorney, but that he had never asked his attorney to get his case back on the Justice Court’s calendar. He explained, “I didn’t think it was my duty.”
¶10 The District Court entered an order denying the motion to dismiss. The court’s reasoning will be discussed below. Zimmerman then changed his plea to guilty on both charges, reserving the right to appeal the denial of his speedy trial motion. On the DUI offense, the court sentenced him to the Department of Corrections for thirteen months, followed by a four-year suspended sentence. For failing to have valid liability insurance, the court imposed a fine.
STANDARDS OF REVIEW
¶11 We apply two standards when reviewing a trial court’s ruling on a speedy trial motion. First, we review the factual findings underlying the court’s ruling to determine whether those findings are clearly erroneous. Ariegwe, ¶ 119. A finding of fact is clearly erroneous if it is not supported by substantial 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. Ariegwe, ¶ 119. Second, whether the factual circumstances, when evaluated pursuant to the four-factor balancing test, amount to a speedy trial violation presents a question of constitutional law, which we review de novo to determine whether the trial court correctly interpreted and applied the law. Ariegwe, ¶ 119; State v. Couture, 2010 MT 201, ¶ 47 n. 2, 357 Mont. 398, 240 P.3d 987 (on questions of law, the parties are entitled to full review by the appellate court without special deference to the views of the trial court).
DISCUSSION
¶12 A criminal defendant’s right to a speedy trial is a fundamental constitutional right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution. Ariegwe, ¶ 20; State v. Stops, 2013 MT 131, ¶ 18, 370 Mont. 226, 301 P.3d 811. It has been acknowledged that this right has an “amorphous quality” in the sense that it is “impossible to determine with precision . . . how long is too long in a system where justice is supposed to be swift but deliberate.” Barker v. Wingo, 407 U.S. 514, 521, 522, 92 S. Ct. 2182, 2187, 2188 (1972); accord Ariegwe, ¶ 91. As a result, the right to a speedy trial is necessarily relative and depends upon the circumstances of the case. Ariegwe, ¶ 104. To determine whether the delay in bringing the accused to trial amounts to a violation of the right, we apply a balancing test that takes into consideration (1) the length of the delay, (2) the reasons for the delay, (3) the accused’s responses to the delay, and (4) prejudice to the accused as a result of the delay. We balance these factors, and any other relevant circumstances, to determine whether the accused has been deprived of his or her right. Couture, ¶ 46; Stops, ¶ 19. No one factor is dispositive by itself; the factors are related and must be considered together with such other circumstances as may be relevant. Ariegwe, ¶ 112. Each factor’s significance will vary from case to case. Ariegwe, ¶ 105.
Factor One: The Length of the Delay
¶13 Under Factor One, we first ascertain whether the interval between accusation and trial (irrespective of fault for the delay) is at least 200 days, which is the trigger date for conducting the four-factor balancing test. Ariegwe, ¶ 107. In the present case, the delay between Zimmerman’s July 21,2012 arrest and his May 6,2013 trial date was 289 days.
¶14 We next consider the extent to which the delay (again, irrespective of fault) stretches beyond the trigger date. Ariegwe, ¶ 107. The significance of this determination is twofold: the further the delay stretches beyond the trigger date, the stronger the presumption is under Factor Four that the accused has been prejudiced by the delay, and the heavier the State’s burden is under Factor Two to provide valid justifications for the delay. Ariegwe, ¶¶ 49,61. Here, the District Court reasoned that an 89-day delay beyond the 200-day trigger date is not particularly long and, therefore, that the State’s burdens under Factors Two and Four are relatively low. We agree with this conclusion, which is consistent with our case law. See State v. Morrisey, 2009 MT 201, ¶ 53, 351 Mont. 144, 214 P.3d 708; State v. Charlie, 2010 MT 195, ¶¶ 50, 59, 357 Mont. 355, 239 P.3d 934.
Factor Two: The Reasons for the Delay
¶ 15 Under Factor Two, we first identify each period of delay. Ariegwe, ¶ 63. Often, the periods of delay will correspond with the different trial settings. See e.g. Ariegwe, ¶¶ 125-133; Morrisey, ¶¶ 55-65. In other cases, where there was a significant delay in setting the first trial date, it is necessary to identify the causes for that delay and to apportion periods of time accordingly. See eg. Couture, ¶¶ 80-89. Because the question is one of “delay,” we are not concerned with actions or events that did not result in a delay of the trial. Couture, ¶ 71. After identifying each period of delay, we attribute the delay to the responsible party. Couture, ¶ 71. The prosecution bears the burden of explaining pretrial delays, and any delay not shown to have been caused by the accused or affirmatively waived by the accused is attributed to the State. Ariegwe, ¶¶ 64-65.
¶16 Here, the District Court identified two causes for the delay in Zimmerman’s first (and only) trial setting: (1) the State caused a 178-day delay by failing to take any action on the case for nearly six months, and (2) once the Information was filed in January 2013, the court’s first available trial date was not until May 2013, which resulted in a 111-day delay attributable to the State. The court thus assigned the entire 289-day delay to the State, implicitly finding that Zimmerman had taken no action to delay his trial.
¶17 The State posits that “a few days” of the initial 178-day delay should be attributed to Zimmerman because he requested a continuance of the preliminary hearing. In this regard, the prosecutor accepted partial “blame for the matter falling off the [Justice] Court’s calendar” and going “into a state of limbo until counsel for the State realized the matter was pending without [a] date.” The prosecutor argued, however, that Zimmerman should “share some responsibility” because he requested the continuance and had an “obligation to ensure” that the Justice Court rescheduled the hearing. We disagree.
¶18 First, such an argument comes close to imposing on the defendant the onus of getting his case to trial in a timely fashion, which is incorrect. “[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.” State v. Blair, 2004 MT 356, ¶ 23, 324 Mont. 444, 103 P.3d 538. “[T]he prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner[,] and... this duty requires a good faith, diligent effort to bring him to trial quickly.” Ariegwe, ¶ 65 (internal quotation marks omitted). Second, Zimmerman’s request for a continuance of the preliminary hearing did not delay his trial date, and thus we do not consider this event. Ariegwe, ¶ 63; Couture, ¶ 82 n. 6. Because he had been accused of a felony, his case ultimately needed to be filed in the District Court. Section 3-5-302, MCA. As the District Court noted, the State could have filed a motion for leave to file an information in the District Court at any time prior to a preliminary hearing. Section 46-10-105(2), MCA. Thus, the District Court was correct in attributing all of the 178 days to the State.
¶19 After identifying and attributing each period of delay, we assign weight to each period based on the specific cause and motive for the delay. Couture, ¶ 71. The weight assigned to a particular period of delay will depend on the party’s culpability in causing it. Ariegwe, ¶ 67. Delay caused by the prosecution in bad faith — such as a deliberate attempt to hamper the defense — weighs heavily against the State. Ariegwe, ¶ 67. Delay caused by negligence or lack of diligence by the prosecution occupies a middle ground, though “it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Ariegwe, ¶ 69 (internal quotation marks omitted). Institutional delay — that is, delay inherent in the criminal justice system and caused by circumstances largely beyond the control of the prosecutor and the accused — is attributable to the State, but weighs less heavily against it than delay caused by bad faith, negligence, or lack of diligence. Ariegwe, ¶ 68; Couture, ¶ 72.
¶20 The District Court determined that the 178-day delay between Zimmerman’s arrest (July 21, 2012) and the State’s motion for leave to file the Information (January 15, 2013) was due to “a lack of diligence by the State in bringing the matter forward.” The District Court further determined that the 111-day delay between the State’s motion for leave to file the Information and the May 6,2013 trial date was institutional delay, occasioned by the court’s crowded docket. The record supports these classifications.
¶21 As for the significance of these classifications in the overall balancing, we have recognized that the amount of pretrial delay that is customary in a given case is a function of the complexity of the charged offense(s). Ariegwe, ¶ 41; State v. Billman, 2008 MT 326, ¶¶ 30, 40, 346 Mont. 118, 194 P.3d 58. Here, the two charges (DUI and no liability insurance) were relatively simple, ordinary driving offenses for which the tolerable delay is relatively low. Billman, ¶ 40; Ariegwe, ¶ 70. Additionally, the delay of six months between Zimmerman’s arrest and the prosecutor’s motion for leave to file the Information — nearly two-thirds of the delay in this case — was due to the State’s lack of diligence. This is an unacceptable reason for delay. Ariegwe, ¶ 69; Blair, ¶¶ 23-24. Accordingly, given that all of the 289-day delay is attributable to the State, that the initial 178 days were due to lack of diligence, and that the charges were relatively simple, Factor Two weighs heavily against the State.
Factor Three: The Accused’s Responses to the Delay
¶22 In assessing the accused’s responses to the pretrial delay, the issue is not simply the number of times the accused acquiesced or objected. Rather, the focus is on the surrounding circumstances, including whether the accused asserted the speedy trial right; the timeliness, persistence, and sincerity of the accused’s objections to delay; the reasons for any acquiescence in delay; whether the accused was represented by counsel; and the accused’s pretrial conduct (as that conduct bears on the speedy trial right). Couture, ¶ 50; Ariegwe, ¶ 76. The totality of the accused’s responses to the delay is indicative of whether he actually wanted a speedy trial and provides guidance in balancing the other factors. Couture, ¶ 50.
¶23 Implicit in any analysis under Factor Three is the principle that the right to a speedy trial is “ ‘genetically different’ ” from the other rights enshrined in the Constitution for the accused’s protection. Ariegwe, ¶ 75 (quoting Barker, 407 U.S. at 519, 92 S. Ct. at 2186). Deprivation of the right to a speedy trial may actually work to the accused’s advantage if, for example, prosecution witnesses become unavailable or their memories fade. Ariegwe, ¶ 75 (citing Barker, 407 U.S. at 521, 92 S. Ct. at 2187). Hence, the primary purpose of Factor Three is to assess “whether the accused actually wanted to be brought to trial promptly.” Ariegwe, ¶ 76.
¶24 A 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.” Ariegwe, ¶ 82 (emphasis in original). Such an inference would conflict with two core principles: first, the accused is under no obligation to ensure diligent prosecution of the case against him, Blair, ¶ 23, and has no duty to bring himself to trial, Ariegwe, ¶ 82; and second, courts should not presume acquiescence in the loss of fundamental rights, Ariegwe, ¶ 83. 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. Ariegwe, ¶ 82.
¶25 Zimmerman promptly asserted his right to a speedy trial once the Information was filed. This fact weighs in his favor. The disputed issue, however, concerns the period between his arrest and the filing of the Information, during which he voiced no objections to the delay. In this regard, the District Court observed that Zimmerman was represented by counsel within approximately a week of being charged. The court further observed that Zimmerman requested a continuance of the preliminary hearing “but did nothing thereafter, despite the fact that he was subjected to continuous monitoring and reporting.” It appears the court weighed this fact against Zimmerman.
¶26 In order to weigh Zimmerman’s inaction against him for purposes of Factor Three, the record must establish, one way or another, whether he actually wanted a speedy trial. As noted, Zimmerman’s prosecution in the District Court, where it was ultimately destined, had not yet begun. Thus, there was no pending action in the District Court in which Zimmerman could have filed a pleading or made a request indicating his desire for a speedy trial. Were we to conclude that Zimmerman’s inaction should be weighed against him, we effectively would be requiring a defendant to bring himself to trial by initiating some action, ahead of the prosecution, in the district court. Similarly, while Zimmerman may have refrained from calling attention to the apparent inadvertence of the Justice Court and lack of diligence by the prosecution in resetting the preliminary hearing, this inaction does not necessarily lead to a conclusion or inference that he did not want a speedy trial. Zimmerman’s inaction is just as consistent with the inference that he knew his prosecution was destined for district court, whenever the State chose to file the appropriate pleading, and that his next appearance thus would be in the District Court, not the Justice Court. His situation is distinguishable from cases that assess an accused’s actual response, not just inaction, and conclude that the response demonstrates a lack of sincerity or persistence in actually obtaining a speedy trial. See e.g. State v. MacGregor, 2013 MT 297, ¶¶ 36-37, 372 Mont. 142, 311 P.3d 428; State v. Morsette, 2013 MT 270, ¶ 14, 372 Mont. 38, 309 P.3d 978; State v. Stops, 2013 MT 131, ¶ 40, 370 Mont. 226, 301 P.3d 811; State v. Houghton, 2010 MT 145, ¶ 30, 357 Mont. 9, 234 P.3d 904.
¶27 While a defendant’s failure to object to a delay of many months or years may be a valid consideration indicating that he did not want to be brought to trial quickly, see Ariegwe, ¶¶ 76-77; Doggett v. U.S., 505 U.S. 647, 653, 112 S. Ct. 2686, 2691 (1992), we cannot draw such a conclusion on the record here. There is no evidence that Zimmerman acquiesced in the delay for tactical purposes or that he did not actually want to be brought to trial promptly. Accordingly, based on the record before us, on the State’s and the trial court’s constitutional obligation to try the defendant in a timely manner, and on our strong precedent establishing that the accused is under no obligation to bring himself to trial, Couture, ¶ 78; Ariegwe, ¶¶ 64-65;Blair, ¶¶ 23-24; State v. Lacey, 2010 MT 6, ¶ 17, 355 Mont. 31, 224 P.3d 1247; accord Barker, 407 U.S. at 527, 529, 92 S. Ct. at 2190, 2191, we conclude that Zimmerman’s inaction should not be weighed against him.
Factor Four: Prejudice to the Accused
¶28 Under Factor Four, we consider whether the accused has been prejudiced by the pretrial delay in light of the interests that the speedy trial right was designed to protect: (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. Ariegwe, ¶ 111. The parties dispute each of these interests in the present case.
i. Prevent Oppressive Pretrial Incarceration
¶29 The speedy trial guarantee serves to minimize the possibility of oppressive incarceration prior to trial. Ariegwe, ¶ 87. Whether an accused’s pretrial incarceration was oppressive depends on the particular circumstances, including the duration of the incarceration, the conditions of the incarceration, the complexity of the charged offense(s), and any misconduct by the accused directly related to his incarceration. Couture, ¶ 56. Zimmerman was incarcerated for three days, which the District Court found was not oppressive. Zimmerman does not dispute this determination.
¶30 Particular to these proceedings, the speedy trial guarantee also serves to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail. Ariegwe, ¶ 87. The District Court observed that SCRAM monitoring was “inconvenient and costly” for Zimmerman, but the court did not believe it was oppressive or overly lengthy. The State similarly characterizes the SCRAM monitoring as only a “minor restriction.”
¶31 While we are reluctant to conclude that a SCRAM bracelet is only a “minor restriction” as the State urges or an “inconvenience” as the District Court described, we recognize that this method of monitoring is attractive to defendants precisely because it is less oppressive than pretrial incarceration. Nevertheless, we cannot ignore the effect on a person’s lifestyle and freedom of movement from having a bracelet permanently affixed to the leg for nine months while being subject to continuous monitoring. The program’s expense is a relevant factor as well. By the time his speedy trial motion was filed, Zimmerman had incurred over $2,000 in costs for the monitoring and would be incurring several hundred dollars more before his trial date. We conclude that SCRAM monitoring and its cost, while not oppressive like incarceration, nevertheless constituted an impairment of Zimmerman’s liberty that supports his claim of prejudice.
ii. Minimize the Accused’s Anxiety and Concern
¶32 Arrest 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 and concern. Ariegwe, ¶¶ 96, 147. Even if the accused is not incarcerated pending trial, “ “he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.’ ” Ariegwe, ¶ 96 (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193). A certain amount of anxiety and concern is inherent in being accused of a crime. Also, the speedy trial guarantee is designed to shorten the disruption to the accused’s life, not to eliminate it altogether. Accordingly, the critical question is whether the delay in bringing the accused to trial unduly prolonged the disruption of his life or aggravated the anxiety and concern that are inherent in being accused of a crime. Couture, ¶ 64; Ariegwe, ¶ 97.
¶33 Zimmerman testified at the evidentiary hearing that he had suffered depression, stress, financial burdens, and disruptions to his life as a result of the delay. These matters are set forth more particularly above. Supra, ¶ 8. The District Court did not give any weight to these considerations, however, reasoning that Zimmerman had “failed to demonstrate a connection between those conditions and the delay itself — the conditions would all ostensibly attach to a fourth offense felony DUI, whether it was tried in 290 days or 90 days.” The court stated that it was “unable to pinpoint any issues directly attributable to the delay that Zimmerman would not have incurred if the trial had been conducted within the period of time prior to the speedy trial triggering date.”
¶34 We conclude that the District Court erred by requiring Zimmerman to prove anxiety or concern tied exclusively to the delay exceeding the 200-day trigger date. The question is not whether Zimmerman’s conditions arose specifically from the 89-day delay extending beyond the trigger date. It is whether the entire 289-day delay in bringing him to trial unduly prolonged the disruption of his life or aggravated his anxiety and concern. Ariegwe, ¶ 97. The record reflects that the pretrial delay aggravated Zimmerman’s mental health issues and financial burdens. There is a clear causal connection between the State’s failure to diligently prosecute the charges and Zimmerman’s worsening financial situation, aggravated mental health issues, and increased stress in his family relationships. This strongly supports Zimmerman’s claim of prejudice.
iii. Limit the Possibility that the Defense Will Be Impaired
¶35 Under the third interest, we consider issues of evidence, witness reliability, and the accused’s ability to present an effective defense. Ariegwe, ¶ 98. This is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. Ariegwe, ¶ 99. We “ ‘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.’ ” Ariegwe, ¶ 51 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2693). Thus, the accused’s failure to make an affirmative showing that the delay weakened his 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. Ariegwe, ¶ 99; Billman, ¶ 47.
¶36 Impairment of the defense due to pretrial delay constitutes the most important factor in the prejudice analysis. State v. Steigelman, 2013 MT 153, ¶ 29, 370 Mont. 352, 302 P.3d 396 (citing Doggett, 505 U.S. at 654, 112 S. Ct. at 2692 (“the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence” is “the most serious” form of prejudice “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system” (brackets and internal quotation marks omitted))). In the absence of affirmative proof of impairment, impairment must be assessed based on the other factors in the speedy trial analysis. See Ariegwe, ¶ 100; State v. Sartain, 2010 MT 213, ¶ 25, 357 Mont. 483, 241 P.3d 1032. A speedy trial claim likely would fail “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.” Ariegwe, ¶ 60 (citing Doggett, 505 U.S. at 656, 112 S. Ct. at 2693). Conversely, where the government has been negligent in bringing the accused to trial, such negligence is not “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693.
¶37 The District Court found Zimmerman’s claims regarding an impaired defense to be without merit. On appeal, Zimmerman contends that his and Officer Harrington’s memories have faded; however, the District Court noted that their ability to recall the events underlying the charges, while perhaps dimmed a bit by time, are easily reconstructed by means of the videos taken at the scene of the stop and at the detention center. Although the audio portion of these recordings is difficult to hear at times, the majority is audible. Furthermore, Zimmerman has not identified any lost evidence or witnesses; rather, the bulk of his argument is directed at the issue of whether Harrington had particularized suspicion to make the stop — an issue that Zimmerman raised through a motion to suppress, that the District Court resolved against him, and that he has not appealed. We do not find error in the District Court’s determination on impairment.
Balancing
¶38 We last determine whether the accused was deprived of his right to a speedy trial in light of the facts of the case and the weight assigned to each of the factors addressed above. Morrisey, ¶ 73. Here, the pretrial delay under Factor One was relatively short: 89 days beyond the 200-day trigger date. We draw no conclusions under Factor Three, in light of the record before us, regarding whether Zimmerman actually wanted a speedy trial. And under Factor Four, Zimmerman did not make an affirmative showing that the delay had impaired his defense. These factors are counterbalanced, however, by several considerations which, together, lead us to conclude that his right to a speedy trial was violated. In particular, none of the delay is attributable to Zimmerman. Furthermore, prosecutors and courts have an affirmative constitutional obligation to ensure that cases are brought to trial in a timely manner, yet almost two-thirds of the pretrial delay here was due to the State’s lack of diligence in prosecuting the case. The charges (DUI and no liability insurance) were relatively simple, ordinary driving offenses for which the tolerable delay is low. Finally, Zimmerman presented evidence of impairment to his liberty (in the form of SCRAM monitoring and reporting) and evidence of financial burdens, mental health issues, and stress in family and employment matters, all of which were unduly prolonged by the State’s delay in prosecuting the charges. We therefore hold that Zimmerman’s right to speedy trial was violated.
CONCLUSION
¶39 The District Court’s order denying Zimmerman’s motion to dismiss is reversed, the District Court’s July 1, 2013 Judgment and Commitment is vacated, and this case is remanded with instructions to dismiss the charges with prejudice. State v. Fife, 193 Mont. 486, 492, 632 P.2d 712, 716 (1981) (the proper remedy for deprivation of the right to a speedy trial is dismissal with prejudice); Barker, 407 U.S. at 522, 92 S. Ct. at 2188.
¶40 Reversed.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, RICE and BARER concur.
Although Zimmerman calculated this period as 290 days, that the State and the District Court conducted their respective analyses based on that number, the correct number is 289 days.
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MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
Plaintiff contracted in writing to furnish certain materials and perform tbe work necessary for tbe erection of a dwelling-house for defendant for tbe sum of $4,727. This action was instituted to recover a balance alleged to be due and to foreclose a mechanic’s lien. Upon tbe trial plaintiff abandoned bis claim for a lien, and tbe cause then proceeded as an ordinary action at law, resulting in a verdict in favor of tbe plaintiff for $500. Defendant appealed from tbe judgment entered on tbe verdict, and from an order denying his motion for a new trial.
The plaintiff counts upon tbe original agreement and each of twenty-five oral contracts supplemental thereto, but failed to separately state or number bis several causes of action. A demurrer for ambiguity and uncertainty was overruled. When plaintiff sought to prove tbe work done and material furnished under each of the supplemental agreements, an objection was interposed but overruled, and error is predicated upon tbe ruling.
The original contract contains this stipulation: “No charges for extra work will be allowed unless same be ordered in writing by tbe owner, price stated in the order and accepted by tbe contractor and owner, signed in duplicate, and tbe same applies to any change of material used.” Appellant insists that by overruling tbe demurrer tbe trial court must have held that tbe complaint states but a single cause of action, and upon that theory bis objection to the testimony should have been sustained. If tbe premise were correct, tbe conclusion might follow, but appellant is in error in tbe construction which be places upon the action of the court. The complaint is open to criticism in that the several causes of action are not separately stated and numbered, as required by section 6533, Revised Codes, but defendant did not invoke an available remedy. Section. 6534, Revised Codes, enumerates the grounds of demurrer, and the failure to separately state and number the causes of action joined in a complaint is not one of them. The defect can be reached only by motion. (Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714.)
The provision of the contract above was manifestly intended for the protection and benefit of the owner,, and no reason can be suggested why it might not be waived. The authorities are quite uniform in holding that, notwithstanding such a provision, the parties may make subsequent independent oral agreements which, when executed, have the effect of modifying the original contract, and the rule has been recognized in this jurisdiction. (Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280; Piper v. Murray, 43 Mont. 230, 115 Pac. 669; Interstate Lumber Co. v. Western M. & W. T. Co., 51 Mont. 190, 149 Pac. 975.)
Appellant insists that plaintiff cannot recover at all except upon showing performance of the contract in its entirety, and if this reference is to the original contract as modified by the subsequent oral agreements, the correctness of the position is not open to argument. (Riddell v. Peck-Williamson etc. Co., 27 Mont. 44, 69 Pac. 241.) Plaintiff alleges that he fully kept and performed the agreement in all things by him to be kept and performed, and tendered evidence in support of his plea. It is true that defendant introduced evidence tending to prove substantial defects in material and workmanship, but the most that can be said of this is that it presented an issue for the jury. Under our Code practice, which requires a party to set forth the facts constituting the basis for any affirmative relief sought, it is the rule that if plaintiff alleges substantial performance of his contract, as distinguished from complete performance, he has the burden of alleging and proving the expense of supplying the omission (Spence v. Ham, 163 N. Y. 220, 51 L. R. A. 238, 57 N. E. 412), or if he alleges full performance and his evidence establishes substantial performance only, the same burden of proof is imposed upon him; but it is equally true that if he pleads complete performance and tenders evidence to support the plea, he will not be dismissed from court merely because the evidence in its entirety warrants a finding of substantial performance only, if there is evidence offered by either party from which the cost of supplying the omissions can be determined. (Rowe v. Gerry, 112 App. Div. 358, 98 N. Y. Supp. 380; affirmed, 188 N. Y. 625, 81 N. E. 1175.)
At the request of the defendant the court gave instruction No. 5, which, after referring to the character of the action, proceeds : ‘ ‘ The burden of proof is upon the plaintiff to show that he performed the contract for the construction of said building and the doing of the extra work in a good and workmanlike manner. The law requires substantial performance of the contract. By the term ‘substantial performance’ is meant that the work as done is free from all defects of a permanent character or such as cannot be remedied by slight alterations or without reconstruction. If you believe from the evidence that the building has not been constructed in such a substantial manner but that it contains defects which cannot be remedied without reconstruction, then the plaintiff is not entitled to recover in this action, and you wiil find the issues against him.”
Counsel for appellant err in assuming that' plaintiff concedes that he failed to perform the contract in substantial particulars. As we read the record, he does not ground his right to recover even upon substantial performance, but insists that he fully performed the original contract as modified by the subsequent agreements. The doctrine of substantial performance was introduced by the defendant himself, and it ill becomes him now to urge that the pleadings do not authorize the application of the doctrine. He is bound by the theory upon which the case was tried in the lower court. Whether there was in fact substantial performance in this instance was a question for determination by tbe jury under the instruction above. (Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736.)
The contention of defendant that the court erred in refusing his offered instruction No. 14 was determined adversely to him upon the former hearing in this case. (Roberts v. Sinnott, 54 Mont. 114, 123, 169 Pac. 49.)
Defendant offered testimony to the effect that the roof of the house as constructed by plaintiff leaked, and that it was necessary to have the shingles removed and a new covering laid. It is not seriously controverted that plaintiff constructed the roof according to the plans and specifications which formed a part of the contract, and that the defects resulted from faulty plans rather than from defective material or workmanship. It is true that the plans were prepared by the plaintiff, but he sought unsuccessfully to show that the defects in the plan of the roof resulted from defendant’s insistence that the roof should have less pitch than plaintiff suggested. Defendant makes no complaint of the plans. Apparently they were entirely satisfactory to him at the time the contract was entered into. In any event, they were agreed to by the parties, and defendant cannot be heard to say that he should recoup for damages because the roof, though constructed according to contract, was not effective for the purpose intended. It is not the, province of courts to make new contracts for parties.
The evidence discloses that the new roof is materially different from the one called for by the plans and specifications, and, in the absence of some evidence that the reasonable value of the work .and material which went into the new roof did not exceed the cost of a roof covering laid according to the plans and specifications, the evidence as to the amount paid for the new work was properly excluded, and since the ruling was right, the fact — if it be a fact — that the reason for it was erroneous is not material. Even if the defects in the roof resulted from defective material or poor workmanship, defendant cannot cure the defects by the construction of a roof differing materially from the one called for by the plans and specifications and charge the entire expense, whatever it might be, to plaintiff, for, if he could, his modesty in this instance is commendable. He might as well have had his building covered with slate or copper.
We must assume that the jury observed the instructions, in the absence of anything to indicate the contrary. It is probable that an allowance by way of compensation was made to defendant for defects appearing in the work, but, if so, the jury must have found that the lapses from the strict letter of the contract were unintentional, and were minor in character; and there was some evidence from which the cost of remedying such defects might be ascertained.
The cause seems to have been tried fairly. There is a [11] substantial conflict in the evidence, but it cannot be said that plaintiff’s case is so inherently weak that it ought not to have been submitted to the jury. It is a wholesale rule which requires this court to sustain a verdict if there is evidence, apparently credible, to support it. The rule is grounded in reason. The jurors have the advantage, denied to this court, of seeing the witnesses on the stand, hearing them testify, and observing their demeanor under examination. They are to be deemed more competent, therefore, to pass upon questions of credibility and the weight to be given to the testimony. This court will not assume to say that the jurors ought to have believed evidence against their own convictions as to the truth. The verdict in this case has the sanction of the jury and also the indorsement of the judge who presided at the trial and who enjoyed the same advantage of seeing and hearing the witnesses. The fact that the printed record appears to the members of this court to indicate that defendant should have prevailed does not of itself require or justify a reversal.
The judgment and order are affirmed.
'Affirmed.
Mb. Chief Justice Beantly and Me. Justice Pigott concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant, Alex Kuum, was convicted of the crime of murder in the second degree and sentenced to a term of imprisonment in the state prison. He appeals from the judgment and an order denying him a new trial.
The first contention made in his behalf is that the evidence was insufficient to justify the verdict (1) in that, though that introduced by the state showed that the defendant shot and killed the deceased, it also showed that the killing was accidental and therefore excusable; and (2) that, though it be conceded that the killing was not excusable, the evidence from any point of view did not justify a finding of any higher grade, of homicide than involuntary manslaughter.
The killing occurred on October 1, 1917, at "Sildix, a flag station on the Northern Pacific Railway in Mineral county, two or three miles from the Idaho state line. The defendant resided at Mullan, Idaho. He is a Russian from Esthonia, ignorant, of a low order of intelligence, and unable to speak the English language beyond a few words. On the morning in question he came by train to Sildix, arriving at about 11 o ’clock. Several others arrived at the same time, all of whom were strangers to him. These were Finlanders, as were also all the others who were about the place during the day, including Godfried Peterson, the deceased. None of them spoke English well; nor did the defendant understand or speak the Finnish language. The defendant as well as the other witnesses gave their testimony through an interpreter. For this reason, and because of the fact that at the time of the shooting all of them were more or less under the influence of liquor and consequently that their recollection of what occurred was imperfect, it is difficult to gather a clear account of the incidents preceding and leading up to the killing. A cabin near the station owned by one Everett was occupied and used at the time by the witnesses Norman and Lebstadt as a boarding-house to accommodate those who worked in mining prospects in the mountains near by. Apparently it was used also as the headquarters for the conduct of an illicit trade in alcoholic liquors to be’ conveyed across the line into Idaho, as well as to furnish them by the drink to any one who eared to go there. The cabin consisted of two rooms besides a woodshed in the rear.' The rooms were connected by a door. One of them was called a sitting-room. In it were two beds, one large and the other a small one, the former situated near the door leading out to the front. The other room was used as a kitchen and eating-room. A door opened from the sitting-room into the woodshed. The' small bed was near the door. As soon as the defendant reached the place he began to drink, and, in company with others, including the deceased, continued to do so until 4 or 4:30 o’clock in the afternoon. The deceased made his home at Sildix.
There is no evidence disclosing how he and the defendant became acquainted with each other, nor how they happened to be together at the time of the shooting. It does not appear that they had met before that day. A few minutes before the shooting they came into the sitting-room together. Both of them had been drinking, but were apparently friendly. Gus Sundberg, the only eye-witness of the shooting, was lying on the large bed. ■Ernest Carlson was sitting by him on the bed talking to him. The defendant and deceased were standing together talking, apparently discussing the quality of a revolver which the defendant had taken from his pocket. The few words overheard by Sundberg and Carlson were spoken in English. The only words Carlson heard were: “Liberty! "We have no liberty.” These were spoken by the defendant. The following excerpts from the testimony of Sundberg furnish the only explanation as to how the shooting occurred: “I seen him [Kuum] have a gun in his hand; he took it out of his pocket or had it in his hand. I don’t know. He was holding it this way. As to how he was holding it, * * * I will ask you to show me the gun. As far as I remember, I noticed the flash — he held it in this manner [indicating]. I didn’t notice much. He was talking and doing some motion. I didn’t pay attention, but I remember Godfried [the deceased] got hold of the business end and says, ‘That gun ain’t no good,’ and I thought it was all over. And at that time I was talking too. I took my eye off, and I was talking to Carlson about leaving the place, and all at once I noticed this here motion, and all at once it went off. Q. Now I want to ask you just one other thing as to that, and we have to ask all of these things. After Alex had the gun up this way [illustrating] and Peterson had his hand over there and Peter son said, ‘That gun wouldn’t hurt anybody,’ or ‘shoot anybody,’ or whatever it was, did Alex hold it down this way and then up this way [illustrating] ? A. I noticed the motion distinctly. I took my eye off, and just as I looked back I noticed the motion. It was just a short-arm movement. I don’t think it came from the pocket. I don’t believe it ever went to the pocket. * * * Yes, he [deceased] was backing away from him at the time he had hold of the gun, and Kuum was following him up, apparently. As to whether Peterson was pulling the gun or Kuum was pushing him, I didn’t pay much attention. When I saw the gun they were perfectly still — they were perfectly still. I didn’t hear any loud or violent talk between them. There was no loud talk. Q. Then, the last you saw before the fatal shot was fired, Peterson had hold of the gun barrel A. Previous to that. The next thing I saw, Kuum'drawing the gun down on Peterson. I saw the actual explosion. I don’t know where Kuum brought his hand from when the shot was fired; all I noticed was that short-arm movement. It is my impression that the shot, the explosion, seemed to be an answer to the challenge that the gun was no good; it followed the remark so fast — it came just after that remark. * * * As to whether Peterson actually had hold of the end of this gun, or how, and being asked to illustrate, I will say that he was slipping around with his fingers like this [illustrating] and says, ‘This is no good.’ So that he didn’t have hold of it as counsel for the state now has — not tight. * * * As to the short-arm movement which I have illustrated, I couldn’t say how Peterson was holding it, whether he had it up that way as you illustrate, or down. I took my eyes away just after that; and the next time I looked I saw Alex pull the gun on him with this short-arm movement that I have indicated. In answer to Mr. Murphy I said the gun went off. As to whether I meant that' it went off while Peterson was holding the end like that and it was being held up like that by the other, no; I can’t rightly answer that question. I have already illustrated that there was 'this movement of the arm; that is right. * * * As to whether they were fighting or quarreling, I thought they were more in a joshing way; I don’t recall Kuum saying a word. As to whether there was a quarrel between them, that was all the talk there was. No, indeed, there was no swearing or threatening language. So far as I know, judging from all I saw previous to the shot being fired, they were as friendly as drunken people can be. Yes; that is very friendly. I believe they can be more friendly then than in any other condition. ’ ’
The witness Carlson was sitting with his back toward the defendant and the deceased, and aside from the few words he heard defendant speak, his attention was not directed to them until, hearing the shot, he turned and saw the deceased fall, exclaiming “I am shot.” He then saw defendant with the revolver in his hand. He had not seen it until that time. This witness had been drinking with the defendant. When the shot was fired he ran from the room. A few minutes later he returned with others, who seized the defendant and held him down for a few minutes on the small bed. We quote the following from his testimony: “They were not quarreling, and there was no loud talking. No; I did not see a gun in the hands of Kuum at that time. The first that I knew that there was a gun there at all was a shot that I heard fired. * * * They were both pretty drunk. I thought they were good friends. So far as I could judge they were very friendly; that is true. * * * Kuum was excited after the shot — after it was all over. He didn’t seem to be excited before or angry. It was all after this occurred.” The defendant and the deceased were both strangers to this witness.
The witness Charles Lattman passed through the room to the kitchen a few minutes before the shooting. He was sitting at the table eating when it occurred. As he passed through the room he saw the defendant and the deceased standing talking together. He heard the deceased say, “You shouldn’t do that.” At that time they seemed to be “good friends.”
Dr. Fulscher, called from Sáltese to attend the deceased, reached Sildix about 6:30 o’clock in the evening. He found de ceased suffering from a wound in his abdomen. After administering restoratives he.questioned him. “I asked him if there had been a quarrel, and he said, ‘No’ he had not had any words at all, and I said, ‘Did this man shoot you intentionally?’ and he said, ‘I think it was an accident.’ ” Later he questioned the deceased further, asking whether the shooting was an accident or not, The reply made was, “I guess he didn’t like me.” During the hour or more he was with him, the deceased did not “at any time make any expression of hostility toward Kuum at all. Mr. McKinley and I were questioning him together to get a statement, and he said, ‘It was only an accident.’ ”
McKinley was a deputy sheriff residing at Wallace, Idaho. He removed the deceased to Wallace, where he died during the night. While at Sildix he asked deceased “if there was any trouble, what the cause of the shooting was,” and he said, “There was no trouble, no quarrel; he just pulled down and shot me.”
This is all the testimony introduced by the state except that there was evidence tending to show that the defendant after he was released made some attempt to leave the neighborhood of Sildix and conceal himself. It was not contradicted in any substantial particular by the testimony of the defendant or any of his witnesses, the defendant himself not questioning the account given by Sundberg, the principal witness for the state. On the contrary, he stated that after he had taken two cups of whisky and hot water soon after his arrival at Sildix, he lost his memory entirely, and did not know what had occurred thereafter until later in the evening, when he found himself at Mullan, and was told by a friend there that he had shot a man. There was testimony to the effect that immediately after the shooting both defendant and deceased stated that it was an accident.
We do not think that the evidence required the conclusion as a matter of law that the homicide was the result of an accident, and was therefore excusable within the meaning of section 8299 of the Revised Codes. Subdivision 1 of that section declares a homicide to be excusable “when committed by accident or misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.” The defendant and the deceased were strangers. This being so, the homicide was excusable, if at all, -under the last clause of the subdivision quoted. In other words, the evidence must have furnished the basis for the single inference that when the shot was fired defendant was engaged (a) in doing a lawful act; (b) bylawful means; (c) with usual and ordinary caution; and (d) without any unlawful intent. It is said by counsel that it may be as fairly inferred from the evidence that the deceased brought about, his own death by taking hold of the revolver and pulling it, and thus causing the shot to be discharged, as that defendant discharged it. Taking into consideration the fact that the defendant and the deceased were strangers; that they were apparently friendly; -that there was no swearing or threatening language used by either; that the defendant was very much intoxicated at the time; that deceased himself said that the shot was an accident; and that there was no motive for the shooting — we conclude that it was unintentional. If one person presents a loaded firearm at another, with a purpose to do the other an injury or put him in fear, he is guilty of doing an unlawful act, for it amounts to an assault. (State v. Barry, 45 Mont. 598, 41 L. R. A. (n. s.) 181, 124 Pac. 775; State v. Papp, 51 Mont. 405, 153 Pac. 279.) . But if the pointing of the weapon'is accidental, or if there is no purpose or intention to injure the other by putting him in fear or otherwise, the act is not unlawful, in the sense that it is a crime punishable by law.
This conclusion, however, does not render necessary the [4] additional conclusion that the homicide was excusable. It was still a question to be resolved by the jury whether the defendant was exercising usual and ordinary caution in handling the revolver as he did. It is a possible inference from the witness Sundberg’s account of the shooting that after the defendant took the revolver from his pocket he held it so that it was pointing toward the deceased, and that, if by any means it should be discharged, it would almost surely injure him. The jury could conclude that the defendant was not in the exercise of the measure of caution or careful attention which the circumstances demanded. It is true that it is not clear whether, when the shot was fired, the deceased had hold of the revolver; but, assuming that he did retain hold of it until the shot was discharged, and assuming, further, that he pulled it in an effort to get possession of it or in order to make further examination of it, thus causing the discharge, there was still left room for the inference that the discharge would not have occurred if the defendant had not been careless in attempting to retain possession. However this may have been, it was the province of the jury to determine whether the killing was excusable. If it was not excusable, it was involuntary manslaughter within subdivision 2 of section 8295 of the Revised Codes. The negligent handling of a dangerous agency such as a loaded firearm, causing or contributing to the death of another person, is involuntary manslaughter. (1 Wharton’s Criminal Law, see. 305; 1 McClain’s Criminal Law, secs. 345, 349.)
The contention, however, that the evidence did not justify the finding of murder in the second degree is well made. Section 9282 of the Revised Codes provides: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. ’ ’ Under this provision, the state having established the killing by the defendant, in the absence of any evidence tending to show circumstances of mitigation or to justify or excuse it, the presumption arises that the killing was prompted by malice and was murder in the second degree. If the prosecution then seeks to convict the accused of murder in the first degree, the burden is upon it to prove deliberation. So the burden would rest upon the defendant to produce evidence sufficient to create a reasonable doubt of the existence of malice if he would reduce the grade of homicide to manslaughter. (State v. Fisher, 23 Mont. 540, 59 Pac. 919.) The burden cast upon the defendant would not at any stage of the trial be greater than this. (State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026; State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169; State v. Fisher, supra; State v. Leakey, 44 Mont. 354, 120 Pac. 234.) When, therefore, the evidence of the prosecution itself, as here, tends to show that the crime committed only amounts to manslaughter, the presumption of the existence of malice does not obtain. When the evidence is in this condition the defendant may, if he chooses, take advantage of the case as made by the state and refrain from introducing any evidence. (State v. Powell, 54 Mont. 217, 169 Pac. 46.) As pointed out above, the evidence justifying the conclusion that the defendant fired the shot unintentionally, the conviction of murder cannot be sustained.
Counsel for the defendant requested the court to withdraw from the jury consideration of the question whether the evidence made out a case of murder. In view of the condition of the evidence, the request should have been granted.
Counsel requested the court to submit to the jury the question whether the defendant was insane at the time the shooting occurred. The requested instructions embody correct statements of the rules of law applicable when the defendant relies upon insanity as a defense. But we do not find any evidence in the record which required the question of defendant’s mental condition to be submitted to the jury. There is nothing in the statement of any witness which had any necessary tendency to show that the defendant was impelled by any insane delusion or by any irresistible impulse; nor, except so far as his reason had been clouded and obscured by the intoxication resulting from his indulgence in drink during the earlier hours of the day, that he did not understand what he was doing. There was evidence tending to show that he suffered periodical attacks due to a diseased condition of his heart; but this did not tend to show that he was mentally irresponsible. At the time of the shooting he had become very much intoxicated — so much so that, according to his own testimony, he did not afterward remember what was going on about him or what he himself did. But this did not tend to show a diseased mental condition; nor could it be alleged as an 'excuse for an unlawful act committed by him while he was in that condition. (Bev. Codes, see. 8114.) If there had been any substantial evidence pointing to the conclusion that he was affected by a mental disease, it would have been the duty of the court to submit the question qf his mental capacity. As there was not, the requested instructions would not have served any purpose other than to confuse the jury.
Several other contentions are made by counsel; but, as they are without substantial merit, we deem it unnecessary to give them special notice.
The judgment and order are reversed, and the' cause is remanded, with directions to grant the defendant a new trial.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Cooper concur.
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] |
MR. JUSTICE PIGOTT
delivered the opinion of the court.
This is an original proceeding against E. W. Burke, Esq., an attorney and counselor at law of the courts of Montana, for disbarment. It has been submitted upon the report of Ira T. Wright, Esq., special counsel appointed by this court to investigate the charge, the complaint of the attorney general, and the answer of the accused. The malpractice, or misconduct in his profession, of which the accused stands charged, consists of his retention of, and failure for some thirty-one months to account for, $104.75 which had been paid to him in satisfaction of judgments procured in two actions by him in behalf of his client. The accused frankly admits the charge to be true in substance, which is tantamount to pleading guilty. It therefore becomes the duty of the court, under Revised Codes, sections 6418 and 6420, to adjudge that the accused be deprived either permanently or for a limited period, according to the gravity of the offense, of the right to practice as an attorney or counselor in the courts of this state.
The misconduct of which the accused confesses his guilt involves such a degree of moral turpitude as would ordinarily justify — indeed, demand — judgment of expulsion from the profession whose honor he has stained and whose reputation for fidelity his malpractice tends to impair. His deviation from the straight and narrow path is not to be treated lightly. There are, however, in this case extenuating conditions and circumstances exceptional in their nature which, while not excusing — much less justifying — his unfaithfulness, do palliate the seeming flagrancy and gravity of his delinquency as it is made to appear by the bald statement of the facts, and which appeal to the clemency of the court and justly invoke the exercise of its discretion. It is not necessary to describe those conditions or recite those circumstances. We may remark, however, that we are inclined to believe that the accused never intended to make permanent appropriation of his client’s funds and that he purposed remitting the full sum, less his reasonable fees, as soon as he should become financially able to do so; and that his delinquency resulted in part from the resentment which he felt because the client had not reimbursed him for costs theretofore expended and had not paid his fees theretofore earned in the actions, in part from failure to bear in mind the distinction between the relation of debtor and creditor and that of trustee and beneficiary, in part from carelessness, and in part from dire poverty. It may be added that since this proceeding was commenced he has paid to the client the full amount due him, with interest.
We feel that the penalty of permanent disbarment would be too severe, and that a milder penalty will satisfy the ends of justice and the purposes sought to be accomplished.
The accused having been convicted of the malpractice charged in the complaint, it is adjudged that he be, and he is hereby, deprived of the right to practice as an attorney or counselor in the courts of the state of Montaná for the period of ninety days from and after November 20, 1918, at the expiration of which time he may be reinstated as an attorney and counselor at law upon satisfactory proof being made to this court of his good moral character meanwhile.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
Opinion
PER CURIAM.
At a special election held on June 24, 1918, in Lincoln county, a majority of the electors voting authorized the board of county commissioners to issue bonds to the amount of $48,000 to provide funds to erect and equip a county high school building. On October 9 the plaintiff, a resident taxpayer of the county, brought this action to enjoin the issuance and sale of the bonds. After the issues were made up by formal pleadings, a trial was had upon an agreed statement of facts, which resulted in a judgment denying the injunction and awarding costs to the defendants. The plaintiff has appealed from the judgment and an order deying him a new trial.
The question presented for determination is whether the fail- ure of the clerk to publish the notice required by section 531 of the Revised Codes invalidated the election notwithstanding the electors had actual notice of its date and of the question submitted to them. This question has heretofore been twice considered and determined by this court adversely to the contentions made by appellant’s counsel. (State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932; Wright v. Flynn, 55 Mont. 61, 173 Pac. 421.) We are entirely satisfied with the conclusions reached in these cases, and upon their authority the judgment and order are affirmed.
Affirmed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted by the plaintiff to recover from the Monarch Mining & Milling Company $1,053.70 alleged to be due for money paid out for the use and benefit of the defendant'at its special instance and request, and certain moneys in the possession of the American Smelting & Refining Company at East Helena were attached to secure the payment of any judgment which might be recovered. Before the case was ready for trial, the Central State Bank of "White Sulphur Springs filed a complaint in intervention claiming the attached property as its own. To this complaint a general demurrer was interposed and sustained, and, the intervener declining to plead further, a judgment was rendered and entered on September 2, 1916, dismissing the complaint. From that judgment the intervener appealed. Thereafter, on November 11/ 1916, the default of the defendant, Monarch Mining & Milling Company, was entered, and a judgment rendered in favor of plaintiff for the amount claimed in his complaint. This second judgment further decreed that the intervener “do have and recover nothing in this action, and that it is not entitled to any of the funds in controversy.” From that judgment the intervener likewise appealed.
1. It is elementary that when the appeal was perfected from the judgment dated September 2, the' district court lost jurisdiction of the cause in so far as the rights of the intervener were involved. (Glavin v. Lane, 29 Mont. 228, 74 Pac. 406; Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809.)
2. It is the next contention of the Central State Bank that it had the right to intervene and have its claim to the attached property adjudicated in the action by Moreland against the Mining Company. Section 6496, Revised Codes, provides.: “Any person may, before the trial, intervene in an action or proceeding who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. ’ ’ The intervention thus sanctioned was unknown to the common law or to the ancient equity practice. It is distinctively of civil law origin, and was authorized in this country first by the early statutes of Louisiana, in which state the Code Napoléon constitutes the basis of jurisprudence. Those statutes are codified in the Louisiana Code of Civil Procedure of 1839, Articles 389-394, and, in substance at least, were copied into tbe laws of California and other western states, including Montana.
The original statute in Louisiana limited the right of intervention to one who had an interest in the success of either party to the original action, but after the decision in Brown v. Saul, 4 Mart. (n. s.) 434, 16 Am. Dec. 175, the statute was amended and its provisions enlarged to include a person whose interest is antagonistic to both parties.
In 1820 the Louisiana court, without specific reference to the statute then in force, recognized the right of a third party to intervene and have determined his claim of ownership to the attached property. (Lee v. Bradlee, 8 Mart. (o. s.) 20.)
In Brown v. Saul above, the right of a mere contract creditor to intervene was denied, and in Gasquet v. Johnson, 1 La. 425, the same rule was applied to a junior attaching creditor. In West v. His Creditors, 8 Rob. 123, decided in 1844, the court reaffirmed the decision in Lee v. Bradlee.
These conclusion's may have been influenced, to some extent at least, by other provisions of the Louisiana Code (Articles 395-399) not found in the statutes of California or Montana, but, whether they were or not, they reflect upon the state of the law at the time the Louisiana statutes were adopted by California.
Later, in New Orleans C. & B. Co. v. Beard, 16 La. Ann. 345, 79 Am. Dec. 582, the court definitely determined that judgment creditors of the defendant, who had junior liens upon the attached property by reason of their seizure of it under fieri facias issued on their judgments, had such direct legal interests as authorized them to intervene in the attachment suit, citing Articles 389 and 390 as authority for the decision.
In Cobb v. Depue, 22 La. Ann. 244, Claflin Co. v. Feibelman, 44 La. Ann. 518, 10 South. 862, and Commission Co. v. Bond, 44 La Ann. 841, 11 South. 220, the right of a junior attaching creditor to intervene was reaffirmed; and in Field v. Harrison, 20 La. Ann. 411, and McCarthy v. Baze, 26 La. Ann. 382, the right of a third party, who claimed the attached property, to intervene was upheld.
In Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569, the right of a simple contract creditor to intervene in a mortgage foreclosure suit was denied, but judgment creditors having junior liens were permitted to intervene. Justice Field, speaking for the court, said: “The interest mentioned in the statute, which entitles a person to intervene in a suit between other parties, must be in the matter in litigation and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment” (citing Gasquet v. Johnson, and Brown v. Saul, above). However much this language may apparently restrict the meaning of the statute, that it was intended to be understood in the light of the facts of the case then before the court, and not otherwise, is apparent, for in Davis v. Eppinger, 18 Cal. 379, 79 Am. Dec. 184, judgment creditors of the defendant, with liens inferior to the attachment lien of the plaintiff, intervened, and their right to do so was upheld, Chief Justice Field concurring.
In Speyer v. Ihmels, 21 Cal. 281, 81 Am. Dec. 157, the question whether a junior attaching creditor has such interest as authorizes him to intervene was set at rest. The opinion by Justice Norton was concurred in by Chief Justice Field. The court said: “Although the interveners have not a claim to or lien upon any property which is the direct subject of litigation in this action, they have a lien upon property which is held subject to the results of the litigation, and which would be lost to the interveners if the original action should proceed to judgment and execution. If the case does not fall within the precise definition of the cases in which intervention takes place, as given in section 659, and as explained in the case of Horn v. Volcano Waterworks, 13 Cal. 62, it is substantially within the object provided for by that section, and as that is a law only regulating mode of procedure and not affecting rights of property, we think the interpretation given to it in the ease of Davis v. Eppinger should not be changed.” The rule was again observed in Coghill v. Marks, 29 Cal. 673.
In Kimball v. Richardson-Kimball Co., 111 Cal. 386, 43 Pac. 1111, the subject was again before the court, and was dismissed with the observation: ‘ ‘ That, under our Code, an attachment or execution creditor has a right to intervene, and upon a proper showing defeat the lien of a prior attaching creditor, we regard as too well settled to need further discussion (Davis v. Eppinger, 18 Cal. 378, 79 Am. Dee. 184; Speyer v. Ihmels, 21 Cal. 280, 81 Am. Dec. 157; Coghill v. Marks, 29 Cal. 673; Coffey v. Greenfield, 55 Cal. 382) ” — and this language was quoted approvingly in McEldowney v. Madden, 124 Cal. 108, 56 Pac. 783.
It would seem that if the interest of a junior attaching creditor is sufficient to authorize him to intervene, for the stronger reason should it be held that the interest of a third party, who claims to own the attached property, justifies him in intervening, and such was the holding in Dennis v. Kolm, 131 Cal. 91, 63 Pac. 141, in Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 18 Ann. Cas. 591, 23 L. R. A. (n. s.) 536, 101 Pac. 396, and in Houston R. E. 1. Co. v. Hechler, 44 Utah, 64, 138 Pac. 1159. To the same general effect are the decisions from Washington. (Langert v. Broum, 3 Wash. Ter. 102, 13 Pac. 704; Happy v. Prickett, 24 Wash. 290, 64 Pac. 528; Perkins v. Bailey, 38 Wash. 46, 107 Am. St. Rep. 831, 80 Pac. 177.)
In Minnesota, New Mexico and Nebraska like statutory provisions were held to exclude from the classes of persons qualified to intervene the junior attaching creditor and the third party who claims the attached property. (Lewis v. Harwood, 28 Minn. 428, 10 N. W. 586; Meyer & Son v. Black, 4 N. M. (Johns.) 190, 16 Pac. 620; Danker v. Jacobs, 79 Neb. 435, 112 N. W. 579.) In other jurisdictions the courts have permitted the claimant of the attached property to intervene in the principal suit without referring his right to do so to any specific statutory provision. (See note, 18 Ann. Cas. 594.)
The statutes of Idaho, Montana, Utah and Washington are identical, and all were borrowed from California after the high est court of that state had placed its construction upon the corresponding provision, in Speyer v. Ihmels and Coghill v. Marks, above. When our legislature adopts a statute from another state, the presumption will be indulged that it adopts, as a part of the statute, the interpretation theretofore placed upon it by the highest court of that state. (Miller v. Miller, 47 Mont. 150, 131 Pac. 23.)
From the date the writ of attachment is levied, the property seized is impressed with a lien (see. 6687, Rev. Codes) which continues in force until judgment, and, if the judgment is in favor of the party procuring the attachment, the property is automatically subjected to sale in satisfaction of the judgment (sec. 6675, Rev. Codes); and, while it is true that the seizure, or even the sale, of A’s property for B’s debt does not affect the title of the true owner who may proceed under section 6673, Revised Codes, or have his appropriate remedy in conversion or replevin, he is not required to pursue any of these courses, and the fact that he has an alternative remedy does not reflect upon his right to intervene. (Coffey v. Greenfield, 55 Cal. 382.) It was for the purpose of avoiding circuity of action and multiplicity of suits that section 6496 was enacted. (Potlatch Lumber Co. v. Runkel, above.)
Our conclusion is that the Central State Bank was entitled to intervene in this action.
The judgment of September 2, 1916, is reversed and the cause is remanded, with directions to overrule the demurrer to the complaint in intervention. The judgment of November 11, 1916, in so far as it assumes to adjudicate the rights of the intervener, is reversed.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Cooper concur.
|
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] |
PER CURIAM.
Upon motion of the appellant herein, the appeals in the above-entitled causes are this day dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
M. J. Me Cune secured a contract to erect a warehouse for the Butte Wholesale Grocery Company, and also a contract for some work for the Colusa-Parrot Company. In each instance he gave a 'bond for the faithful performance of his contract, with plaintiff and John Eakins as sureties. Before either contract was fully executed, McCune notified Eakins & Silver that he was unable to complete the work, and directed them to take over the contracts, complete the work, collect the balance due, and pay the bills. Within two or three days thereafter Mc-Cune died. Eakins & Silver agreed between themselves to do as directed and to meet the pay-roll for the then current week. They borrowed $200 from the First National Bank, had the amount placed to the credit of “Eakins & Silver,” and at the end of the week the laborers were paid by checks drawn by Eakins against this account and signed “Eakins & Silver.” A dispute arose as to the amount due under the warehouse contract, and Eakins & Silver employed an architect to measure up the work and estimate the balance due. When this was done, the parties agreed that there was due under the contract proper the sum of $1,920.80, and for extras the further sum of $424.20, and two checks — one for each of these amounts — were drawn in favor of and delivered to John Eakins. Eakins became sick, and during his illness expressed his intention to indorse the checks and deliver them to Silver, but before this was done he died. The checks were found among his effects, were cashed, the money placed to the credit of his individual account, and later, when defendant qualified as executrix of his will, the money was treated as a part of the assets of his estañe, and possession of it taken and retained by defendant as his personal representative. Silver, acting as sole surviving partner of the firm of Eakins & Silver, presented a claim against the estate of John Bakins for the $1,920.80, but the claim was disallowed and this action was instituted to recover the amount.
Briefly, the complaint charges that Eakins & Silver were copartners engaged in completing the work under the McCune contracts, that Silver is sole surviving partner, that the $1,920.80 was and is partnership money, that it was received by Eakins and retained as a part of the assets of his estate, that plaintiff presented a claim for the amount, and that the claim was rejected. The answer admits the death of Eakins, the qualification of defendant as executrix, the rejection of plaintiff’s claim, and denies all the other material allegations of the complaint. By way of affirmative defense it was alleged that Silver had failed to give the surviving partner bond required by section 7607, Revised Codes. On motion of plaintiff this defense was stricken from the answer. The trial resulted in a judgment for plaintiff, and from that judgment, and from an order denying a new trial, defendant appealed.
1. Does the complaint state a cause of action? Section 7607 defines the rights, duties and liabilities of a surviving partner. It authorizes him to continue in possession of the partnership, to settle its affairs, and to account and pay over to the personal representative of the deceased partner any balance due in right of the decedent. Apparently the complaint was drawn upon the theory that the surviving partner is entitled as of right to the possession of all the firm assets until the partnership affairs are finally settled. If the partnership assets in the possession of Silver, as surviving partner, were sufficient to pay the partnership debts, then any balance due him in right of his partnership interest could be recovered only on a settlement of the firm account. (Franklin v. Tonjours, 1 White & W. Civ. Cas. (Tex.),-sec. 506.) If the partnership assets in his possession exceeded the debts and Silver’s interest, then manifestly it would be an idle ceremony to require the estate to deliver this $1,920.80 to the surviving partner, only to require him to redeliver it to the estate upon final settlement. These observations suffice to disclose the reasonableness of the rule which requires the surviving partner to make known the amount of partnership debts and the amount of firm assets in his possession, to the end that the court may determine whether possession of firm property held by the estate of the deceased partner is necessary, in order that the surviving partner may discharge the duties imposed upon him by statute. The complaint does not disclose the amount of firm debts, if any, nor the amount or value of firm assets in the possession of the surviving partner, and for this reason it does not state a cause of action. (Painter v. Painter’s Estate, 68 Cal. 395, 9 Pac. 450.)
We do not agree with appellant, however, that if the complaint contained these essential allegations it would still not state a cause of action. It is true that one partner cannot maintain an action at law against his copartner, at least until an accounting is had and a balance determined, and the reason for this rule is apparent. The interest of each partner extends to every portion of the firm property (sec. 5469, Rev. Codes), and therefore neither partner is entitled, as against the other, to the exclusive possession of the whole or any specific part of the partnership assets. (Boehme v. Fitzgerald, 43 Mont. 226, 115 Pac. 413.) But whenever the reason for that rule ceases, so does the rule itself, and the reason ceases immediately upon the death of one partner. The partnership is thereupon dissolved (section 5494), and the surviving partner becomes at once entitled to the possession of sufficient firm property to enable him to discharge the duties imposed by section 7607. (Bank v. Silver, 45 Mont. 231, 122 Pac. 584.) If, then, it was made to appear by this complaint that possession of this $1,920.80 was necessary to settle the firm debts, an action for money had and received would lie to recover it. (Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 462; 20 R. C. L., p. 1010.)
2. Whether this action should have been dismissed for want of prosecution was a question addressed to the sound legal discretion of the trial court, and in the absence of a showing of abuse of such discretion we are not disposed to • interfere. (Bank v. Albertson, 39 Mont. 414, 102 Pac. 692.)
3. The failure of plaintiff to give the bond required by sec- tion 7607 did not affect his right to the possession of the firm property, or defeat his right to maintain any appropriate action concerning it. The bond is required merely to protect the interest of the deceased partner. (Blaker v. Sands, 29 Kan. 551; Holman v. Nance, 84 Mo. 674; McCaughan v. Brown, 76 Miss. 496, 25 South. 155.)
4. We think the evidence is sufficient to show that a partner- ship existed between Eakins & Silver. It is true that all the necessary elements do not appear from the direct evidence, and it is not necessary that they should; but we do think that from the direct evidence the jury might draw the legitimate inferences necessary to complete the proof. (Croft v. Bain, 49 Mont. 484, 143 Pac. 960.)
As between the parties, there was an assignment by MeCune to Eakins & Silver of the two contracts and the balance due under them. In other words, Eakins & Silver stepped in the shoes of MeCune, and agreed to complete the work, pay the workmen, and receive the balance due under the contracts. In the absence of any showing that there was not a possibility of profit to them, the inference is legitimate that they intended their agreement to comprehend the sharing of profits and losses; and in this connection we observe, in passing, that the evidence warranted the court in defining the term “partnership” in the language of,section 5466, Revised Codes.
5. In several of the instructions the court ignored the principle to which we have adverted, viz., that possession of the $1,920.80 by Silver was necessary to the discharge of his duties as surviving partner, and, though this objection was not interposed, attention is directed to the defect, that it may not appear upon another trial.
6. J. S. Dutton, cashier of the First National Bank, was called to testify concerning the account of Eakins & Silver and the individual account of John Eakins. . He produced a copy of each account taken from the bank’s ledger, and testified from it, over the objections of defendant. Assuming that the ledger was a book of original entry, within the meaning of section 7951, Revised Codes, and that the requisite preliminary proof had been made, as indicated by this court in Ryan v. Dunphy, 4 Mont. 356, 47 Am. Rep. 355, 5 Pac. 324, and Meredith v. Roman, 49 Mont. 204, 141 Pac. 643, the ledger itself would have been the best evidence of its contents, and secondary evidence was not admissible, since the case does not fall within any one of the first four subdivisions of section 7872, Revised Codes. In so far as it was sought to show the general results merely — for instance, the balance deducible from computation — the witness was properly permitted to state what was shown by the ledger (subd. 5, see. 7872), but the copies themselves were not admissible.
It may be that in some jurisdictions the best evidence rule has been modified to admit copies of bank books, and that the inconvenience to the bank and its patrons, arising from the absence of the books in court when needed in the conduct of the bank’s business, has been deemed sufficient justification for the change; but in this state the Codes have established the rule otherwise, and we are not at liberty to disregard it.
If it was the purpose of plaintiff to invoke the rule of -section 8020, which permits a witness to use a memorandum, it is sufficient to say he did not make the necessary preliminary proof. (Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055.)
7. We think the special interrogatories submitted by defendant were not appropriate under the circumstances, and for this reason were, properly refused. Each of them ignored the prin- _ ciple for which plaintiff contends, viz., that McCune had previously assigned the $1,920.80 to the firm of Eakins &' Silver.
The other assignments do not call for special consideration. For the reasons given, the judgment and order are reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Mr. Chiep Justice Brantly and Mr. Justice Sanner concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
By a decree of the district court of Madison county the relative rights of these parties to the use of the waters of Jordan Creek and its tributaries for irrigation purposes were fixed and determined. Twelve distinct appropriations were recognized and established, but of these only two are called in controversy by these appeals. The court found that on May 1, 1884, plaintiff appropriated 100 inches, and defendant Watkins 60 inches, from Jordan Creek proper. Plaintiff has appealed, and her particular grievance is that the court did not give priority to her appropriation.
In so far as it affects the question now in issue, the evidence is not in conflict at all. During the month of June of each year there is abundance of water in .the Jordan Creek system to supply the needs of all the parties, but by July 1 the waters begin to diminish in quantity, and from July 15 there is not to exceed 200 inches in Jordan Creek at plaintiff’s ranch; so that, after satisfying her 1868 appropriation of 130 inches, the excess is not sufficient to supply these two appropriations of 1884, and •under the decree as it now stands plaintiff will be required to divide the excess with defendant Watkins.
The evidence discloses without controversy that plaintiff’s ditch was constructed in the fall of 1883, and water was applied to a beneficial use through it in the spring of 1884. The ditch of defendant Watkins was constructed in the spring of 1884, and used that season, if we give full credit to certain inferences fairly deducible' from the evidence. The trial court failed to find the elemental facts from which a conclusion could be drawn that an appropriation was made, but declared the conclusion as a fact that plaintiff “did divert and appropriate of the waters of Jordan Creek the following,” etc. It is perfectly apparent that the attention of the court was not directed to the law which governs these two appropriations.
Our first statute prescribing the method of making an [1] appropriation was not enacted until March 12, 1885 (Laws 1885, p. 130). Prior to that date all appropriations were made pursuant to the rules and customs of the early settlers of California, which had been adopted in Montana territory and given the .force of law, by recognition of the legislature (Bannack Statutes, Laws 1869-70, p. 57) and the courts. This legislative and judicial history was reviewed at length in Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575, and need not be repeated here. Since both of these appropriations were made prior to March 12, 1885, and are therefore governed by the rules and customs rather than by statute, our inquiry is limited. What were those rules and what legal conclusions follow as of course from the undisputed evidence before us?
1. The essential elements of an appropriation were a completed ditch and the application of water through it to a beneficial use. (Murray v. Tingley, 20 Mont. 260, 50 Pac. 723.)
2. As between two rival claimants seeking to secure appropriations from the same stream at the same time, and each one prosecuting work upon his ditch with reasonable diligence to completion and applying the water to a beneficial use, the one who commenced his ditch first secured the priority by virtue of the doctrine of relation. (Woolman v. Garringer, 1 Mont. 535; Murray v. Tingley, above; Wright v. Cruse, 37 Mont. 177, 95 Pac. 370.) In other words, his appropriation related back to the date he commenced work upon his ditch. The trial court failed to apply these rules, and fell into error. This particular doctrine of relation was superseded by the statutory rule, but the statute has no application here.
Under the undisputed facts, plaintiff’s right should have been dated 1883; for, if it were necessary to do so, we would find that work commenced and completed on a ditch in the same fall was prosecuted with reasonable diligence. (Bailey v. Tintinger, above.)
A new trial is unnecessary, and the order will stand affirmed.
This cause is remanded to the district court, with directions to modify finding No. 5b by substituting “in the fall of 1883” for “May 1, 1884,” and the conclusion of law lb and the decree to conform with such amended finding, and, as thus modified, the decree will stand affirmed. Appellant will recover her costs.
Modified and affirmed.
Mb. Chief Justice Brantdy and Mr. Justice Sanner concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On June 25, 1917, the city council of the city of Hardin adopted a resolution declaring its intention to create District No. 9 for the purpose of grading, paving and otherwise improving certain streets, the cost of the improvements to be charg’ed against the property within the district. The notice published by the clerk and the copy mailed to property owners referred to resolution of intention No. 95, on file in the city clerk’s office, for a description of the boundaries of the proposed district. At the same time a resolution of intention to create District No. 10 for a like purpose was adopted, and in this instance the published notice and the copy mailed to property owners referred to resolution of intention No. 93 for the description of the boundaries of this proposed district. Plaintiff received a copy of each of these notices but did not appear before the council or protest against the creation of either district. Later, the council by resolution undertook to create each district and to contract with Hanlon & Okes to do the work. Plaintiff, the owner of real property within each of the districts, instituted this action to restrain the city authorities and the contractors from proceeding and secured a temporary injunction. The defendants appeared by general demurrer and motion to dissolve the injunction and, when this demurrer was overruled, they declined to plead further and suffered judgment to be entered against them and appealed. They also appealed, from an order refusing to dissolve the injunction.
It is alleged in the complaint, and admitted by defendants for the purposes of these' appeals, that resolution of intention No. 95 bears no relationship whatever to District No. 9, but describes the boundaries of, and has to do with, an entirely different district, and thát resolution of intention No. 93 does not relate to District No. 10 bnt describes altogether different territory.
The proceedings of the city council were governed by Chapter 89, Laws of 1913, as amended by Chapter 142, Laws of 1915. Under the provisions of these statutes the successive steps necessary to be taken in creating a special improvement district are: (1) The adoption of a resolution of intention. (2) The service of the required notice. (3) A hearing and a determination against the protéstants if any protest is made. (4) The passage of a resolution creating the district. The first three steps are jurisdictional, and the failure of the council to take any one of them is fatal to the proceedings. (Shapard v. City of Missoula, 49 Mont. 269, 141 Pac. 544.)
Section 3 of Chapter 89 above as amended provides that upon the passage of the resolution of intention the council must give notice by publication and by mailing a copy of the published notice to every property owner within the proposed district. The section then continues: “Such notice must describe the general character of the improvement or improvements so proposed to be made, and state the estimated cost thereof, and designate the time when and the place where the council will hear and pass upon all protests that may be made against the maldng of such improvements, or the creation of such district; and said notice shall refer to the resolution on file in the office of the city clerk for the description of the boundaries.”
These proceedings have for their ultimate purpose the subjection of the property within the district to taxation to bear the cost of the improvements. They are in invitum, and in recognition of these facts the legislature has provided a complete but direct plan of procedure designed to protect property from confiscation and at the same time permit beneficial improvements to be made. It has provided for notice to the property holder and an opportunity for him to be heard before the proposed district is created, and it has constituted the city council a special tribunal to conduct the hearing. This tribunal is clothed with limited powers only and no presump tion in favor of its jurisdiction -will be indulged. The statute measures its authority and compliance with the terms of the statute is a condition precedent to its right to act. [State ex rel, Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695.)
The notice is the process by which the council brings the [8] interested property owner before it, and service of the process is indispensable unless service is waived. [Davidson v. Clark, 7 Mont. 100, 14 Pac. 663.) Service is made by publishing a notice containing the matters enumerated in section 3 above, and by mailing to every property owner affected, a copy of the notice as published. The purpose of serving the notice is (1) to apprise the property owner that his property is within the proposed district and liable to assessment if the district is finally created; (2) to inform him of the general character of the contemplated improvements and the probable cost of the same, and (3) to advise him of the time when and place where he may be heard. While it is not required that the notice itself shall contain a description of the boundaries of the proposed district, it must refer to the particular resolution of intention for such a description and the resolution of intention must describe the boundaries, and by this reference the designated resolution is made a part of the notice to all intents and purposes. If, then, the resolution to which the property owner is referred, does not describe the boundaries of the proposed district but describes other territory altogether, the primary purpose of the notice is defeated, or, in other words, the notice contemplated by the statute is not given and the council does not acquire jurisdiction to proceed. The authorities elsewhere are quite uniform in holding that statutes of this character are mandatory. (4 Dillon on Municipal Corporations, 5th ed., sec. 1457; 2 Page & Jones on Taxation by Assessment, sec. 740; 4 McQuillin on Municipal Corporations, sec. 1349.)
It is established by this record that the resolution to which plaintiff and other property owners were referred for a descrip tion of the boundaries of District No. 9 describes territory none of which is within that district, and the same thing is true with respect to District No. 10. It is suggested by counsel for appellants that the caption of each notice as published contains a correct reference to the appropriate resolution by number; but it is sufficient answer to say that the caption is no part of the notice.
It is also argued that it is fairly inferable from the [7] complaint that plaintiff had actual knowledge that his property was to be included in these proposed districts; but if we assume that this deduction is warranted, it does not aid appellants. Plaintiff was not called upon to act until he had been served with the statutory notice in the manner provided by law.
The statutes above not only qualify and limit the powers which the city council may exercise, but they define with particularity the mode in which the restricted authority may be used, and compliance with their provisions is the sine qua non to the creation of a special improvement district for making improvements the expense of which is to be a charge against the property included. (Shapard v. City of Missoula, above; Cooper v. City of Bozeman, 54 Mont. 277, 169 Pac. 801.) The statutes define the contents of the notice and the manner of service, and declare that the giving of this notice is one of the steps necessary to be taken before the city council is clothed with jurisdiction to order the work done, and no argument, however specious, can excuse a failure to observe their mandates.
„ Since the council did not acquire jurisdiction to create either of these districts, the other questions argued need not be considered.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantdy and Mb. Justice Cooper concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered tbe opinion of tbe court.
, Proceeding on tbe complaint of tbe attorney general against R. E. O’Keefe, an attorney admitted to practice in this state, accusing him of unprofessional conduct, and asking that be be disbarred. When the issues were made up, the court appointed C. A. Spaulding referee to bear tbe testimony and report tbe same, together with bis findings of fact and bis conclusions of law. Tbe original complaint contained one count. During tbe course of tbe proceeding it was amended by tbe addition of a second count. Tbe evidence submitted at tbe bearing was not directly relevant to tbe charge made in tbe first count. Tbe referee therefore disregarded tbe first count, found upon tbe issues tendered by the second, and made bis report accordingly. Tbe substance of tbe charge in it is tbe following: That 0 ’Keefe violated bis oath as an attorney, and was .guilty of unprofessional conduct, in that, on or about May 21, 1917, in an action then pending in tbe district court of Blaine county, wherein Elda O’Malley was plaintiff and Patrick H. O’Malley was defendant, one issue joined by tbe pleadings — of which O’Keefe bad knowledge — was whether tbe said Patrick H. O’Malley was on October 2, 1915, at tbe time of bis marriage to Elda O’Malley, then Elda Sbarpless, insane to such an extent as to be incapable of entering into a marriage contract; that said action was brought on for trial in that court on May 21, 1917, before Honorable W. B. Rhoades, Presiding Judge, sitting without a jury; that O’Keefe was called and sworn as a witness, and tes titled during the trial; that, well knowing and believing that the defendant O’Malley was not at the time of his marriage so far insane and mentally deranged as to be incapable of entering into a marriage contract, he testified that he knew that O’Malley was insane, with the purpose and intent of deceiving the court and inducing the presiding judge to believe that O’Malley was incapable of entering into a marriage contract. The referee made special findings of fact, the effect of which is that 0 ’Keefe is guilty as charged, and recommended that he be disbarred from practicing as an attorney and counselor in this jurisdiction. After a careful review of the large volume of evidence submitted at the hearing before the referee, we have concluded that it fully supports his findings and that his recommendation should be adopted. The propriety of our conclusion will be made apparent by a brief reference to some of the more salient parts of the evidence.
For several years prior to the fall of 1915 the accused and Dr. O’Malley, a practicing physician, both resided at Chinook, in Blaine county, and were intimate friends. Dr. O’Malley was a bachelor. During the fail of that year he became somewhat mentally deranged, his condition being manifested by groundless fears entertained by him that he was about to suffer injury at the hands of some person or persons in the community. In a measure he lost interest in his practice and to some extent neglected it. He was advised by the accused that, if he would get married and establish a home, he would recover his mental balance and become" fully restored to his normal condition. Elda Sharpless, who was then employed in the local telephone exchange, was an intimate friend of both the accused and Dr. O’Malley. The accused suggested to Dr. O’Malley that Miss Sharpless would make him a suitable wife and by persuasion induced him to agree to marry her. Having obtained Dr. O’Malley’s consent to do so,'the accused sought out Miss Sharpless and arranged for an interview between her and Dr. O’Malley. This occurred on October 2. The result was an agreement between them to be married immediately. Thereupon the accused accompanied them to Havre, in Hill county, where they were married. The marriage proved unhappy from the beginning. Indeed, the evidence tended to show that it was never consummated by cohabitation between the parties, and that Dr. O’Malley soon compelled his wife to leave his home. Thereafter the wife brought an action for separate maintenance on the ground of desertion. As one of his defenses to the action, Dr. O’Malley interposed a counterclaim demanding an annulment of the marriage, on the ground that he was wholly incompetent to enter into the marriage contract with the plaintiff. At the trial in May, 1917, the accused was one of the principal witnesses called by Dr. O’Malley to establish his want of capacity. In response to inquiries by counsel, he testified without explanation or qualification that he knew that at the time of the marriage Dr. O’Malley was insane. At the hearing before the referee he admitted that he had so testified. He stated further that when he advised the marriage he was of the opinion that Dr. O’Malley was competent ; that otherwise he would not have given the advice he did; that he gave his evidence at the trial without qualification as he did, because he was not asked to state how he desired his statement to be understood; and that, if he had thought it would be understood to mean that Dr. 0 ’Malley was not fully competent to contract the marriage, he would have elaborated and explained it. That he had ample opportunity to do this, but failed to improve it, however, is shown by the following excerpt from his cross-examination during the trial. He was questioned by Mr. Hurd, one of counsel for the plaintiff, and gave answer as follows: “ Q. Do you mean to tell this court that, knowing a man was insane, you would still advise him to get married? A. I am not telling the court anything. I made the statement that I did so advise him.” When wé recall the fact that he knew that Dr. O’Malley was seeking an annulment of the marriage on the ground that he was incompetent, that he 'had been called as a witness to establish the alleged incompetency, and that he did not believe at the time that Dr. 0 ’Malley was incompetent, we are forced to the conclusion that, in •answering the question put to-him by Mr. Hurd as he did, he was fencing to avoid any explanation. The conclusion by the ■referee that his purpose was to deceive the court is thus fully Sustained.
Counsel for the accused contends that, when he had answered truthfully the questions put to him, his duty was fully discharged, and that he would not have been pemfitted to express an opinion as to whether Dr. O’Malley was competent to ■contract the marriage if he had attempted to do so, because this would have violated the rule of evidence that a witness may not ■express an opinion on the ultimate fact which is to be found by the court. It is sufficient answer to this to say that if the accused had truthfully informed defendant’s counsel, before he was called, of the condition of Dr. O’Malley’s mind, he doubtless would not have been called. In other words, he was not under compulsion to testify as he did. He cannot allege the technical rule referred to by counsel to exculpate himself from an apparently deliberate purpose to practice deceit upon ■the court in bolstering up a ground for the relief alleged by the •defendant, which by his own admission at the hearing by the referee he knew did not exist. Nor is he aided by the faet that the court rejected his testimony in finding that Dr. O’Malley was competent.
That the conduct of the accused justifies an order of disbarment cannot be questioned. Subdivision 5 of section 6393 of the Revised Codes is broad and comprehensive. It was clearly intended by the legislature in enacting it to include any course ■of conduct by an attorney disclosing moral obliquity and dishonesty rendering him unworthy of the privilege of practicing law. A character for honesty and integrity is as necessary, to justify his retention of the privilege after he has acquired it, as it was to acquire it in the first place; and when his conduct is such that he has forfeited his right to the confidence of the public, he has forfeited his right to the privilege also. A man •cannot be dishonest as an individual and at the same time (honest as a lawyer. It is not possible to distinguish between the man as an individual and a man as a lawyer; and when he (reaches the point where he is ready, as a witness, knowingly (and willfully to aid a litigant to establish a baseless claim, he 'is no longer worthy to be a member of the honorable profession <to which he belongs. Courts are instituted to administer justice, as near as may be. The office of the lawyer is to aid them in the exercise of this high function; and when he fails in the duty which he thus owes to the courts, he forfeits the privilege (which has been accorded him.
The judgment of the court is that R. E. 0 ’Keefe be removed 'from his office as attorney and counselor at law, and that his name be stricken from the roll.
Me. Justice Sanneb and Me. Justice Holloway concur.
Rehearing denied October 23, 1918.
|
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SUGGESTIONS AND RECOMMENDATIONS OF THE COURT.
A petition having been filed in this Court by the Montana Bar Association, through a committee of said Association duly and regularly appointed, and acting pursuant to a resolution unanimously adopted by the Montana Bar Association, praying that this Court, together with the District Courts of the seventeen judicial districts of the State of Montana participate with the Montana Bar Association in the observance of a Citizenship Day.
And this Court having duly considered said petition, and having set a hearing thereon for December 18, 1939, in this Court, and at said time and place there having appeared Messrs. George W. Farr, Lester H. Loble, Julius Wuerthner and A. F. Lamey of the Montana Bar Association, who, on behalf of said Association presented said petition by oral argument to this Court and set forth its proposed plan in furtherance of said petition, and advised the Court that observance of Citizenship is a fitting field for the voluntary participation of the Montana Bar Association, in collaboration with this Court and the District Courts of this state, and advised that it is desirable, proper and necessary that a time be suggested during each year when citizenship be commemorated; that on that day appropriate observations and celebration be had; preceded by instruction and dissemination of information on our form of government and the duties of Citizenship, such course of instruction to be supplied by the members of the Montana Bar Association in their respective counties, under the supervision of this Court and the District Courts of the several districts.
And this Court believing that the members of the Bar are, perforce, students of government and possessed of knowledge and information as to our form of government, and the various functions thereof, and that their offer, through the Montana Bar Association to serve gratuitously in instructing new citizens, should be availed of, and that such offer, on behalf of the Bar, displays high purpose and devotion.
Now, Therefore, upon the suggestion of the Montana Bar Association it is recommended that in furtherance of said program, that said Montana Bar Association designate the following District Judges as Chairman or Co-chairman, as the case may be, in charge of its program in the various counties, to-wit:
First Judicial District, Counties of Lewis and Clark and Broadwater, Hon. A. J. Horsky and Hon. George W. Padbury, Jr., Co-chairmen.
Second Judicial District, County of Silver Bow, Hon. Timothy E. Downey and Hon. Jeremiah J. Lynch, Co-chairmen.
Third Judicial District, Counties of Deer Lodge, Granite, and Powell, Hon. R. E. McHugh, Chairman.
Fourth Judicial District, Counties of Lake, Mineral, Missoula, Ravalli and Sanders, Hon. Albert Besancon and Hon. C. E. Comer, Co-chairmen.
Fifth Judicial District, Counties of Beaverhead, Jefferson and Madison, Hon. Henry G. Rodgers, Chairman.
Sixth Judicial District, Counties of Gallatin, Park and Sweet-' grass, Hon. Benjamin E. Berg, Chairman.
Seventh Judicial District, Counties of Dawson, McCone, Rich-land and Wibaux, Hon. Frank P. Leiper, Chairman.
Eighth Judicial District, Counties of Cascade and Choteau, Hon. Harry H. Ewing and Hon. C. F. Holt, Co-chairmen.
Ninth Judicial District, Counties of Glacier, Pondera, Teton and Toole, Hon. R. M. Hattersley, Chairman.
Tenth Judicial District, Counties of Fergus, Judith Basin and Petroleum, Hon. Stewart MeConochie, Chairman.
Eleventh Judicial District, Counties of Flathead and Lincoln, Hon. J. E. Rockwood, Chairman.
Twelfth Judicial District, Counties of Blaine, Hill and Liberty, Hon. Chas. B. Elwell, Chairman.
Thirteenth Judicial District, Counties of Big Horn, Carbon, Stillwater, Treasure and Yellowstone, Hon. Ben Harwood and Hon. Guy C. Derry, Co-chairmen.
Fourteenth Judicial District, Counties of Golden Valley, Meagher, Musselshell and Wheatland, Hon. W. C. Husband, Chairman.
Fifteenth Judicial District, Counties of Daniels, Roosevelt and Sheridan, Hon. Vernon Hoven, Chairman.
Sixteenth Judicial District, Counties of Carter, Custer, Fallon, Garfield, Powder River, Prairie and Rosebud, Hon. S. D. McKinnon and Hon. Rudolph Nelstead, Co-chairmen.
Seventeenth Judicial District, Counties of Phillips and Valley, Hon. John Hurly, Chairman.
Further acting upon the suggestions of the Montana Bar Association, it is advised that the individual members of this Court are ready and willing to assist the Montana Bar Association in its program to the end that the purposes recited in the petition be accomplished.
Further, it is suggested that the 'time for holding said Citizenship Week be during Constitution Week, in the month of September, of each and every year.
Dated this 29th day of April, 1940.
Howard A. Johnson, Chief Justice.
Concurred in by Associate Justices Claude F. Morris, Albert H. Angstman, Leip Erickson and Ralph L. Arnold.
|
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] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
The respondent, Luke Paulieh, was an employee of the appellant coal company. The appellant was enrolled under Plan No. 1 of the Workmen’s Compensation Act (Rev. Codes 1935, sec. 2970, et seq.), at the time of the industrial injury suffered by respondent. He regularly filed his claim for compensation with the Industrial Accident Board, hereinafter referred to as the board, on November 18, 1931. The claim was contested by appellant and, after hearing, the board on July 28,1932, granted to respondent 56 weeks of compensation at $19 per week, the board’s order being:
“It is therefore ordered and adjudged that the Republic Coal Company pay to Luke Paulieh four (4) weeks compensation at the rate of $19.00 per week as a temporary total disability and that it pay to Luke Paulieh 52 weeks compensation at the rate of $19.00 per week, in addition thereto, as a permanent partial disability, the payments to date from August 20th, 1931, in full and final settlement of his claims for compensation arising out of alleged injuries of August 1, 1931, August 20th, 1931, and November 7th, 1931.
“It is further ordered and adjudged that Luke Paulieh accept 4 weeks compensation at $19.00 per week as a temporary total disability and 52 weeks compensation at the rate of $19.00 per week, in addition thereto, as a permanent partial disability, in full and final settlement of his claims for compensation arising out of his alleged accidental injury on August 1st, 1931, August 20th, 1931, and November 7th, 1931.”
From this order respondent appealed to the district court of the Fourteenth Judicial District for the county of Musselshell, and after hearing on October 11, 1932, the court in its findings affirmed the findings of the board, except that the weekly compensation was raised from $19 to $20 per week, and the date from which payments were to be made was changed to November 7, 1931. This first order on appeal was dated February 9, 1933. Subsequently respondent moved the court to modify its conclusion as to the amount of weekly award, which motion was on March 16, 1933, overruled. Subsequently, and on March 25, 1933, the final order was entered, which recites in conclusion: “That as compensation for his temporary total disability and permanent partial disability he be paid by the said defendant, the sum of $20.00 per week for the period of 56 weeks from November 17th, 1931, and that he accept from said defendant such compensation; that the defendant, Republic Coal Company, is entitled to credit for such sums as have heretofore been paid by them.”
It will be noted that the hearing before the district court on appeal was held before the expiration of the 56 weeks included in the judgment. And it is also to be noted that the judgment of the district court does not contain the provision found in the order of the board that the judgment be accepted as a full and final award.
On April 11,1933, the amount of this judgment, minus credits, together with interest, was paid. Subsequently and after receipt of the amount of the judgment, respondent filed an appeal in this court. (Paulich v. Republic Coal Co., 97 Mont. 224, 33 Pac. (2d) 514, 515.) The appeal in this court was dismissed on the ground that the acceptance by respondent of the fruits of the judgment precluded an attack by him on the judgment, the court saying: “Counsel was tendered, and accepted, the fruits of the judgment; this act was inconsistent with the right of appeal; the election of the one necessarily excludes the enjoyment of the other.”
On July 12, 1934, respondent filed a petition with the board, under the provisions of section 2956, Revised Codes, which provides in part that the board may, at any time after the date of award, “review, diminish, or increase, within the limits provided by this Act, any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either increased (italics ours) or diminished or terminated.” In this petition respondent claimed that his disability had been aggravated. After hearing, and on March 4, 1935, the board denied and dismissed the petition, stating in its conclusions: “The board does not believe that Luke Paulich in December of 1934 was suffering any greater disability than he was in 1932 when his claim was originally decided by the Industrial Accident Board. The evidence of his own expert physician is positive that his condition is the same and the only exception the doctor makes is that he [the doctor] rated the claimant at too low a percentage at the time of the original examination. The petition of Luke Paulich for an award of an additional and further compensation is therefore denied and dismissed. ’ ’
From this order respondent appealed to the district court and, after trial and hearing, that court on September 13, 1935, sustained the board. In its findings of fact the court recites: ‘ ‘ The said claimant on July 12th, 1934, petitioned the Industrial Accident Board to make a further and additional award upon the ground that the disability due to said industrial accident had very materially increased (italics ours) since the hearing before the Industrial Accident Board.” In this finding, in speaking of the order of the board, the court said: ‘ ‘ [It] made its decision and order dismissing and denying the petition of claimant for an award of additional and further compensation on the ground that said claimant was suffering no greater degree of disability from said accidents than at the time of the first hearing before the Industrial Accident Board.” The court found in its findings that Paulich was suffering no greater degree of disability and sustained the board. In its judgment it recites in part: “Luke Paulich is not entitled to recover any other or further compensation from said defendant.”
It is to be noted that this later petition was acted on prior to the decision in Lunardello v. Republic Coal Co., 101 Mont. 94, 53 Pac. (2d) 87, which was determined in this court on December 19, 1935, and the decision in Meznarich v. Republic Coal Co., 101 Mont. 78, 53 Pac. (2d) 82, decided on December 12, 1935. No appeal was perfected from the judgment of the district court.
On November 19, 1936, respondent filed with the board a petition denominated “Petition for Hearing for Determination of Disability and Order Directing Payment of Additional Compensation in accordance with the Judgment and Order of the District Court of Date March 28, 1933. ’ ’ By this petition respondent sought to have the period of payment of weekly compensation extended to the maximum allowed by the statute, claiming that his disability continued after the date of the judgment of March 28, 1933. He did not claim a changed condition in this petition, as he did in the petition of July 12, 1934.
To this last petition appellant filed its answer, and to this answer respondent filed a reply. On May 24, 1937, the board, without a hearing and without taking any testimony, denied and dismissed this petition, basing its action on the theory that the board had no jurisdiction to grant the relief sought. The board took the view that the petition was one seeking to enforce an order of the court. The board states in its conclusions: “The petition now before the board * * * to enforce a court order andds not one alleging an increase in the disability. The board therefore has no jurisdiction. ’ ’
Subsequently respondent filed an application for rehearing, which was denied. He then appealed to the district court of the Fourteenth Judicial District from the order of the board dismissing his petition and his application for rehearing. The appeal was heard by the court below on December 10, 1937. At that hearing respondent moved the court for leave to introduce testimony in addition to that introduced before the board, for the reason that it was necessary to bring the facts of the case down to the time of the hearing before the court. Appellant objected to the consideration of the matter, except as a matter of review only, and this objection was by the court overruled, and witnesses were examined and proof heard. Judgment in favor of respondent was given on July 16, 1938, in the sum of $5,341. According to the judgment, this sum was computed on the basis of the total amount of compensation from and after the 3d day of December, 1932, the date of the-first hearing before the district court, in which the original award was made to the respondent to and including June 28, 1938, as a lump sum payment of all accumulated amounts due. It is from that judgment that this appeal is taken.
Two primary questions are presented to this court by this appeal. The first question that must be determined is: Did the board have jurisdiction to hear the petition of respondent ? And, second: Did the court proceed properly and within its powers when it heard the matter on appeal as it did?
In order to answer the first question, it is first necessary to examine what had transpired in this particular matter prior to the filing of the last petition.
It is argued that the acceptance by Paulich of the fruits of the first judgment renders that judgment conclusive and that now Paulich is not in a position to seek further payments based in any manner upon that original judgment. It is true that so far as the period covered by the compensation accepted is concerned, the judgment is conclusive on respondent and he cannot now question it. (Paulich v. Republic Coal Co., supra; Shugg v. Anaconda Copper Min. Co., 100 Mont. 159, 46 Pac. (2d) 435.) But as to the period not covered by the award of compensation, and the compensation accepted by respondent, the judgment is not conclusive. (Meznarich v. Republic Coal Co., supra.)
To hold as appellant contends, would nullify the provisions of our Code, sections 2952 and 2956, providing for continuing jurisdiction on the part of the board to take care of those situations where the claimant accepted the full amount of the award hnd later discovered that his disability continued. His acceptance of the weekly award, or the total of the weekly awards, could not bar his application for additional compensation based on continuing disability.
It is then argued by appellant that the judgment of September 13, 1935, based on the petition of respondent, for additional compensation, on the theory that his condition as to disability had increased, is res judicata. As has been indicated heretofore, that petition was based on the provisions of section 2956, which provides that additional compensation may be awarded where it is shown that the disability of the person in whose favor the award is made has increased. Prior to the Meznarich and Lunardello Cases, supra, it was generally understood that under the Montana statutes the award, when made in a final sum, precluded the recovery of any additional compensation in excess of the total contemplated by the judgment, unless there was a showing, that the disability had increased. It was on that theory that the second petition was filed, and on that theory alone, as evidenced by the conclusions of both the board and the district court, that the matter was determined. (Shugg v. Anaconda Copper Min. Co., supra.) The judgment of September 13, 1935, is res judicata only as to the matter then considered, and then determined, namely, that the disability of respondent had not increased or become aggravated.
We have heretofore quoted the language of the conclusions of the board and of the court, which in effect are that the respondent’s disability was the same at the time of the hearing on the second petition as it was at the time of the original award, and they specifically hold that his disability has not been aggravated, and his petition was denied solely on that ground.
The present petition is based upon an entirely different theory from the second petition, and although the language of the court is broad in denying the petition and dismissing it, yet it is apparent from a casual reading of the findings and conclusions that the only thing considered by the board and by the court was the question of increased disability, and it is only as to that matter that the judgment is res judicata.
That the board has jurisdiction to entertain the petition and grant the hearing is settled by the two recent cases heretofore cited—Meznarich v. Republic Coal Co., and Lunardello v. Republic Coal Co., supra. Section 2952, Revised Codes, provides: “The board shall have continuing jurisdiction over all its orders, decisions and awards, and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter, or amend any such order, decision or award made by it upon good cause appearing therefor. Provided, that the board shall not have power to rescind, alter, or amend any final settlement or award of compensation more than 'two years after the same has been made, and provided further that the board shall not have the power to rescind, alter or amend any order approving a full and final compromise settlement of compensation. Any order, decision, or award rescinding, altering, or amending a prior order, decision, or award, shall have the same effect as original orders or awards.”
In construing this section and sections 2912 et seq., the court in the Lunardello Case said: “Plaintiff is correct in his contention that after a type of disability has been finally ascertained, whether it be temporary-partial, temporary-total, permanent-partial, or permanent-total, payments must be made during the continuance of the disability, not exceeding the maximum time, in accordance with the law and as prescribed therein for the particular type of disability involved. It is not necessary that the total allowance all be included in one order, or all be made at one time; what we mean to say is that no order may be considered as full allowance unless the maximum is contemplated and included therein, and even then such order and allowance must still be subject to modification or change under the continuing jurisdiction of the board.”
And in the Meznarich Case the court said: “The mere fact, then, that the board purported to make the order of December 19, 1931, ‘final,’ is of no force or effect, as that provision of the order was in contravention of the statutes vesting power in the board, and the board could not thus divest itself of the continued jurisdiction vested in it by the Act.” (101 Mont. 78, 53 Pac. (2d) 85.) And further the court said: “As our Act, in common with those in other jurisdictions, declares in each instance with respect to the several classifications of disability, that the weekly compensation fixed under the particular section shall be paid ‘during the period of disability,’ a claimant’s rights are limited only by the declaration of the legislature as to the maximum number of weeks fixed by it as a limit.”
It is to be noted that in the two cases last cited the order fixing the number of weeks of compensation to be allowed, recited that the order was full and final, while in the present ease, although the order of the board on the first petition was in that language, the judgment of the district court on appeal from the first order of tlie board significantly left ont the provision that the award be full and final settlement of respondent’s claim for compensation. On the authority of the last two cases cited, the board did have jurisdiction to grant the respondent the leave prayed for in his petition, and it should, therefore, have granted the hearing. Inferentially the district court so ruled in the decision appealed from, and its holding that respondent was entitled to compensation included within it a holding that the board had jurisdiction to hear the petition.
Appellant urges that the court erred in proceeding with the hearing on appeal. It argues that if it should be held that the former judgments heretofore discussed were not a bar to this petition, then all that the district court could do would be to dismiss the petition, or, at most, send it back to the board with direction to hold a hearing. This court has indirectly considered the problem presented by this argument on a number of occasions. On at least two different occasions this court affirmed the lower court where it proceeded exactly as here.
In Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 Pac. 270, 271, the proceeding before the board and in the district court was very much the same as in this case. There a petition was filed with the board in which the widow of a deceased workman sought to have his death declared to be due to an industrial accident, and to secure an allowance of compensation. With the petition were filed various exhibits. The defendant answered and accompanied its answer with certain affidavits of physicians and other persons. These affidavits stated that the workman died of heart failure — a natural cause. The board, after receiving these various instruments, refused to grant a hearing and dismissed the claim. In that case the board in effect said in denying the hearing that the application, answer and various exhibits attached to the two pleadings, demonstrated that there was no industrial accident and, therefore, there was nothing for the board to determine, i. e., that the petition and answer revealed no jurisdictional facts upon which the board could proceed. In the present case, the board says that the judgments filed with the answer show this same lack of jurisdictional facts, and, therefore, the board denied the petition here.
In the Nicholson Case, supra, on appeal the district court proceeded as here, heard evidence and found for the defendant. This court, in stating the facts in its opinion, said: “And, on the trial, the court permitted each party to introduce oral testimony on all questions involved, so that the court had before it a complete case, independent of the showing made to the board. ’ ’ The lower court in its order cited Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 Pac. 124, to the effect that the power of the district court is that of review rather than that of retrial. This court in reversing the district court in the Nicholson Case said: ‘ ‘ The board held no hearing and, in effect, disposed of the claim as on a motion for judgment on the pleadings on questions of law, although the pleadings raised an issue as to whether decedent’s death was caused by accident or resulted from natural causes, and, in order to arrive at its decision, the board must have taken into consideration the ex parte showing made by the company. The board’s decision on a question of law stands in a very different situation from its findings of fact based on evidence received at a hearing. The rule invoked does not apply to decisions on questions of law, and has application only to those appeals determined on the ‘cold record’ certified to the court by the board, as pointed out in the Morgan Case [Morgan v. Butte etc. Min. Co., 58 Mont. [633], 641, 194 Pac. 496] referred to; it is not controlling in cases in which the court permits additional testimony, and has no application when the additional testimony shows fact conditions differing from those presented to the board. On all appeals in which the court permits such additional testimony, the trial is a re-examination in the nature of a review, so far as the record made before the board is concerned, but, as the additional testimony was not before the board, the trial is de novo as to such additional evidence. (Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 Pac. 880; Novak v. Industrial Acc. Board, 73 Mont. 196, 235 Pac. 754.) The court should have considered all of the evidence adduced, and determined the questions presented on appeal according to the law and the evidence. ’ ’
In the case of Novak v. Industrial Accident Board, supra, claimant filed his claim together with the doctors’ reports, etc. It is apparent that some considerable investigation was made by the board. Without holding a hearing the board allowed compensation, but the claimant on appeal contended that the award was not sufficient. In the opinion the court said: “Owing to the condition [the fact that no hearing was had], the court permitted Novak to introduce oral testimony, under authority of section 2960, Revised Codes of 1921.” And further: “As there were no findings of the board for review, this being an appeal from an order denying a hearing and' not from the findings, conclusions, and judgment of the board after hearing, the court made its independent findings,” based on the evidence adduced for the first time before the court. The judgment of the district court was affirmed. We, then, have two Montana cases in which this court affirmed' the lower court where it did what appellant complains of here. The right of the district court to proceed as it did in the Nicholson and Novak Cases was apparently not contested nor argued, and, therefore, the court did not directly pass on its right to hear evidence where there was no hearing below. However, the court assumed in those two cases that the district court had that power, and, we think, correctly so.
In discussing the field of inquiry in the district court on appeal from an order of the board after hearing, this court said in Dosen v. East Butte Copper Min. Co., supra: “Terminology here is of little moment. The trial is a re-examination and re-determination in any and every event. If upon the record of the board, the re-examination is in the nature of review, but the court must render its own judgment. If the court permits additional evidence to be introduced, the trial proceeds upon a consideration of the evidence heard before the board, and that which the court permits in addition thereto. To that extent the trial is de novo. The court is given a wide discretion in the matter. Whenever the Compensation Act, or any part or section of it, is interpreted by the court, it shall be liberally construed. (Sec. 2964, Rev. Codes.) Both parties to the action or proceeding shall have the right to appear in the district court and it shall be the duty of the board to appear. If the court shall find upon the trial that — ‘the findings and conclusions of the board are not in accordance with either the facts or the law, or that they ought to be other or different [from] those made by the board, or that any finding and conclusion, or any order, rule, or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises. ’ (Sec. 2961, Rev. Codes 1921.) The intention of the law is that the court shall do full and complete justice to all concerned, so far as it may be possible to do so within the limitations of the statute.”
The attitude of this court as expressed in the Dosen Case, supra, when considered in the light of the Nicholson and Novak Cases, supra, seems to be that in determining to what extent the district court will go in hearing matters not presented before the board, it has a wide discretion, and in determining its action the district court should be guided by the rule that it should do full and complete justice to all concerned. In other words, that the lower court should dispose of the matter completely on the appeal if it is at all possible.
Appellant relies to a great degree on Willis v. Pilot Butte Min. Co., supra, which case was decided prior to the decision in the Nicholson, Novak and Dosen Cases, supra. In none of the eases cited by counsel is there one that directly holds, and only one that impliedly holds, that where there was no hearing before the board, the district court on appeal cannot admit testimony and hear and finally determine the matter. Most of the cases cited, like Doty v. Industrial Accident Fund, 102 Mont. 511, 59 Pac. (2d) 783, Rom v. Republic Coal Co., 94 Mont. 250, 22 Pac. (2d) 161, and many others, consider only the problem of the powers of the district court on appeal where there was a hearing before the board. They are directed to the problem of the weight to be given the findings of the board on the evidence before it. They are concerned, also, to some degree, with the extent to which the district court should permit additional testimony, but on this point they all hold uniformly that that is a matter entirely within the discretion of the district court. In discussing the matter of review and retrial, they are concerned with the problem of the functioning of the district court, i. e., should the district court hear the matter entirely de novo, even on a cold record, and indulge in no presumption as to the correctness of the fiuding of the board? This court in passing on that question has said that where the matter is heard entirely upon the record before the board, the proceedings are in the nature of a review only, but that where additional important testimony is adduced, then the matter is considered one of retrial, and the rules as to presumptions of the correctness of the board’s finding do not obtain. (Kelly v. West Coast Const. Co., 106 Mont. 463, 78 Pac. (2d) 1078.)
This court has indicated and held that the district court is not precluded from admitting testimony through the same witnesses and on the same matters that were testified to before the board, and in the Kelly Case, supra, it said that where the testimony so adduced is important and differs in any degree from the testimony adduced before the board on the same matters, the record of the board may be disregarded.
Appellant cites the case of Shugg v. Anaconda Copper Min. Co., cited supra, and urges particularly the language in that case found on page 168 of 100 Mont., on page 439 of 46 Pac. (2d) as follows: “If it be conceded that the petition to reopen the case states facts sufficient to invoke the continuing jurisdiction of the board, the appeal here taken was an inappropriate method of attempting to have the changed condition of the injured party determined. Original jurisdiction to determine all questions of fact with respect to awards of compensation is vested' in the board (see. 2947, Rev. Codes 1921), and the board has never heard or determined the question as to whether or not new developments in the claimant’s condition warrants further award of compensation. The board only determined the preliminary question of law as to jurisdiction, and refused to act; it would seem, therefore, that the proper remedy would have been mandamus to compel the board to act (State ex rel. Loney v. Industrial Accident Board, 87 Mont. 191, 286 Pac. 408), for the power of the court on appeal is that of review to determine ‘whether or not the findings of the board ought to be sustained, and whether or not such findings are reasonable under all the circumstances of the case.’ (See. 2960, Rev. Codes 1921; Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 Pac. 124.) Here there was nothing for the court to review; it was called upon to, and did, hear the case de novo, but then decided that it was without jurisdiction to. determine the matter of which it has thus assumed original jurisdiction. ’ ’
An examination of the above ease indicates that what is there said is by way of dictum, and we agree that ordinarily the proper course to pursue, and the orderly one, is that indicated in the portion of that case quoted above. However, we feel that the provisions of section 2961, Revised Codes, indicate that the legislature had in mind the granting of very broad' powers to the district court on appeal. ‘ ‘ The board and each party to the action or proceeding before the board shall have the right to appear in the proceeding, and it shall be the duty of the board to so appear. If the court shall find from such trial, as aforesaid, that the findings and conclusions of the board are not in accordance with either the facts or the law, or that they ought to be other or different than those made by the board, or that any finding and conclusion, or any order, rule, or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises. ’
The statutory provisions as to procedure contemplate without doubt that upon the filing of a petition the board ordinarily shall grant a hearing and be the trier of the facts in the first instance. But this latter section of the statute seems to express rather plainly the will of the legislature that even where the board fails to hold a hearing, on appeal the district court may proceed and determine the matter at once. (See the quotation from Dosen v. East Butte Copper Co., supra.) We would like to repeat particularly that portion of the quotation from that opinion which reads: ‘ ‘ The intention of the law is that the court shall do full and complete justice to all concerned, so far as it may be possible to do so within the limitations of the statute.”
Were it not for section 2961, the limitations of the statute would prevent determination of the matter finally, as was done by the lower court here, in the absence of a hearing before the board; but the language of section 2961, when considered in the light of the other statutory provisions, certainly does not prohibit the final determination of the matter before the district court, but rather seems to command it.
Even though we should hold that the Shugg Case, supra, is controlling on the matter of procedure, there are additional reasons why the lower court must be affirmed, particularly as to the matter of its action in proceeding to hear the ease after determining the legal question. The appellant introduced in evidence the various orders and judgments on which it based its technical defense. The first judgment so introduced recites the fact that respondent suffered an industrial accident, and that the injury was a permanent partial one. The second judgment offered by appellant, and the accompanying order of the board, recite that respondent was at that time suffering the same permanent partial disability, and that his condition was the same as it was on the date of the first judgment. Appellant, then, by its own evidence, admits that for two years or more, covered by this last petition now before the court, respondent’s condition was what he alleged it to be, namely: That his disability continued as it was at the time of the original judgment. As to the period subsequent to the second judgment, respondent, testified as to his condition and earning power, and was cross-examined by appellant; but appellant offered no testimony in rebuttal. It offered no testimony that for that period respondent was not in fact disabled, or that his disability was any less than he testified it to be. Appellant submitted findings of fact but none to the effect that respondent’s disability did not exist as he alleged and testified, nor that it was not the same as the court found it to be in the first and second judgments.
We are then presented with the situation where there is no substantial dispute as to the facts. Therefore there would be nothing for the board to decide if the matter were sent back to it for a hearing. That situation makes applicable the language of this court in the very recent case of Halko v. Anderson, 108 Mont. 588, 93 Pac. (2d) 956, 959. The action there was to quiet title to certain real property in the possession of defendant. He was entitled, as a matter of law, to a trial of the issues before a jury. Although he objected, the court proceeded to hear the matter without a jury, and upon the trial it developed from defendant’s own testimony that he had no defense to the action. This court said': “It is well established that a judgment will not be reversed for harmless error. * * * A judgment will not be reversed to grant the losing party the abstract right of a trial by jury when the record discloses nothing for the jury to determine. (Hahn v. Shaubut, 45 Mont. 326, 123 Pac. 694.) ” In this latter case, Hahn v. Shaubut, supra, the court said: “So far as the record presented to us discloses, the defendant had no defense to the action. He could not refuse to offer proof of the affirmative allegations of his answer, and then claim a purely abstract right to a trial by jury after having admitted all of the allegations of the complaint. It was his duty to make the record disclose prejudicial error. Such is the rule in this state. * * * So far as we know, he has suffered no prejudice whatever.”
We believe the rule so announced is applicable here. Appellant relied entirely upon the legal effect of the former judgments, and did not offer any evidence that would reveal that it had a defense if the matter were sent to the court below. Before appellant could place the district court in error, it was its duty to make the record show by some testimony that it had been prejudiced by the court’s action by proceeding to hear the whole matter, instead of sending it back to the board. This appellant has not done. See, also, State v. Byrd, 41 Mont. 585, 111 Pac. 407, 411, where the court said: “It is for this court to determine whether an error affects the substantial rights of the defendant. * * * but it is the duty of the defendant who claims prejudice to make the record so show.” It may also be noted in passing that the rule of stare decisis in view of the Nicholson and Novak Cases, supra, should properly be applied. (See 7 R. C. L., sec. 30, and Palmer v. Harris, 23 Okl. 500, 505, 101 Pac. 852, 138 Am. St. Rep. 822.)
In view of what we have said as to the matters adjudicated in the second judgment, and in view of the holding of this court in the Meznarich and Lunardello Cases, supra, we do not see how this petition and appeal to the district court can be a collateral attack on the order of the board or the judgment of the court in either the first or the second proceedings, and we find no basis for the argument that the petition and appeal constitute a collateral attack, contrary to the provisions of section 2954, Revised Codes.
Error is predicated by appellant upon the admission in evidence of certain X-ray pictures and a report of Dr. E. M. Porter. These pictures and letters were for the purpose of showing respondent’s physical condition. Dr. Porter did not testify, nor was there any deposition or affidavit produced covering these matters. Error, even where conclusively shown to have been committed, is not necessarily presumed to have been prejudicial. That is especially true here, where the matter was heard before the court and where there was other ample undisputed testimony to sustain the findings of the court. (Hill v. Chappel Brothers of Montana, 97 Mont. 305, 33 Pac. (2d) 819; Noyes’ Estate v. Granite-Alaska Co., 64 Mont. 406, 210 Pac. 96; Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 102 Pac. 310, 18 Ann. Cas. 1201.)
The evidence objected to, even though it might have been objectionable, was not prejudicial and' its admission furnishes no ground for reversal. (Backer v. Parker-Morelli-Barclay Motor Co., 87 Mont. 595, 289 Pac. 571; Dockins v. Dockins, 82 Mont. 218, 266 Pac. 398.)
The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justice Angst-man concur.
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MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
This is an appeal from an amended judgment rendered pursuant to new findings of fact and conclusions of law made after the cause had been here on a prior appeal and had been remanded to the district court for further proceedings.
In 1937 plaintiffs sought to enjoin defendants from maintaining dams alleged to interfere with plaintiffs’ prior water rights on Sheep Creek. In their answer and cross-complaint defendants claimed a water right superior to plaintiffs’ to the extent of 1,500 miner’s inches on the creek and two of its tributaries, by adverse user and by plaintiff’s abandonment, and sought an adjudication of their right. Plaintiffs’ reply denied the allegations of abandonment and adverse user and alleged that defendants’ storage and use of the water had been initiated with plaintiffs’ qualified consent, and that defendants had never claimed adversely to plaintiffs until 1934. Upon the original trial the district court rendered findings of fact, conclusions of law and decree sustaining defendants’ claim to water rights superior to plaintiffs’ by adverse user, and denying plaintiffs requested injunction against the maintenance of defendants’ dams. On the first appeal (Irion v. Hyde, 107 Mont. 84, 81 Pac. (2d) 353) the plaintiffs’ contentions were sustained in this court and the judgment awarding defendants a superior right was reversed; but as the measure of plaintiffs’ prior right was not established in any way at the first trial, and as it appeared to the court that there might be some appropriate remedj’' for the defendants’ interference with plaintiffs’ right short of the destruction of defendants’ dams, the cause was remanded for further proceedings. To save repetition the judgment roll incorporated in the transcript in the former appeal, Cause No. 7796, was not repeated in the transcript on this appeal, but was incorporated therein on appellants’ motion.
It was shown on the trial in 1938 that Sheep Creek is a natural dry watercourse without water except during the spring run-off and after heavy rains. Plaintiffs’ appropriation is by means of a diversion dam which by raising the level in the creek bed only three or four feet caused all of the water to flood between 100 and 130 acres of plaintiffs’ land through a natural swale or old channel in which plaintiffs have constructed a ditch; the uncontroverted evidence shows that plaintiffs’ diversion ditch and swale carries all the water which comes down the creek except under very unusual conditions and that little gets away even in great floods; that “it did top over once” more than ten years prior to the hearing; that all of the water is required for the flood irrigation of plaintiffs ’ lands; that there has been surplus water at plaintiffs’ point of diversion only at times of extreme floods, or when the frost was still in the ground; that only once in ten or twenty years had there been any excess water in summer floods, and not during the past ten years; that the spring run-off ordinarily takes from two to four days, but that the only flow since 1927 was the early spring run-off of 1938 when there was a small amount for two days but not sufficient for all of plaintiffs’ needs, “a little flow, but not much”; that in 1935 the dam was about full and the water ready to run out on plaintiffs ’ lands, but that defendants were holding water back at his dam and not enough escaped to put the water on plaintiffs’ land.
It was shown that the defendants formerly had two storage dams on tributaries of the creek above their own and the plaintiffs ’ diversion on the creek itself, but have abandoned them and their only diversion is by storage and diversion dam about three and three-quarters miles away from plaintiffs’ on a direct line, but some nine miles above following the windings of the creek; that this dam is higher than the banks of the creek at that point and backs the water up about 200 yards; that it stores or diverts all the water of the creek except in very extreme floods, and has taken all water that has come down in the past ten years and longer, except that on one occasion twelve, years before the retrial and again in 1938 there has been some surplus; that there had been only a few such occasions since 1915. The bottom of the diversion ditch is about four feet below the crest of the dam and water flows through it to defendants’ land when only three or three and one-half feet deep in the reservoir, and the capacity of the reservoir is 20.1 acre-feet. There is no gate or spillway in the dam and no headgate in the ditch. The defendants claim to need and use all the water in the creek to irrigate something less than thirty acres. Defendants testified that the creek did not run at all except at time of spring flow or “gully washer,” and only when practically bank full; but no witness testified to ever having seen it running bank full. One of the defendants testified that if there was water for one there was water for both, but admitted that only three times since 1914 had there been any excess water at their dam, and that except for those times they had used all of it. The evidence throughout was unsatisfactory; there was considerable ambiguity in the testimony and defendants may have meant to say that there was also occasionally some excess of water at the time of the spring run-offs in addition to the three times mentioned.
The watershed of defendants’ dam is 7.2 square miles and that of plaintiffs’ dam below defendants’ is 8.36 square miles, but ordinarily there is a greater head of water at defendants’ dam than at plaintiffs’, the testimony showing that the land is flatter on plaintiffs’ watershed than on defendants’ and also that there are some 275 pot holes in the creek bed between plaintiffs’ and defendants’ dams. No competent evidence appears in the record as to the capacity of these holes, absolutely the only testimony offered being that of an electrical engineer who stated that he had taken up hydro-electric engineering and had had experience in surveying land, measuring reservoirs and computing the volume and flow of water. He testified as a witness for defendants that he had walked down the stream to a point about a mile and a half below defendants’ dam, in that distance had counted 119 pot holes, and had measured four which he picked out “at random” as “appearing about of the same average.” The capacity of the largest in cubic feet was 5,140 and the smallest 2,127, of all four 14,914, and of their average 3,728. He did not look at the other 156 in the other seven and one-half miles at all but assumed that the four were average, not only of the 119, but of the entire 275, and on that assumption computed their entire capacity at 1,125,200 (he apparently meant 1,025,200) cubic feet, which he said was 149,300 cubic feet (about seventeen per cent.) more than the capacity of defendants’ reservoir. Obviously no one could merely look at 119 holes in the ground and pick out four, the largest of which was two and one-half times the size of the smallest, and credibly testify that their average capacity was even approximately that of the 119; and the assumption is palpably fantastic as a basis for computing the capacity of 275 holes, 156 of which he had never even seen. Such testimony obviously constituted no evidence whatever of the contents of the pot holes.
The same is true of his evidence with reference to the maximum flow of the creek. He had never seen water flowing there, but at a point about one and a half miles below defendants ’ dam, the condition of which he did not describe, and which he selected, not as being typical of the creek bed in grade, cross-section and other characteristics, but merely as being “a section where I would be able to compute and measure it,” he had found what he called “trash marks” indicating the high water mark of the spring of 1938, and said that from the measurements he made there he computed “the capacity or volume of water in Sheep Creek.” His entire testimony on this point was as follows:
“The capacity of the creek is undoubtedly greater than I measured. The measurement I took was from the evidence there, which was a trash-line, indicating beyond doubt that the water had been that high recently enough so that the trash-line was left. The cross section taken and the water level block between the cross sections taken, gave me the figure upon which a computation of the flow at the time that trash-level was left was made. That flow computed is 7180 miners inches. ’ ’
Apparently he made some effort to determine the grade at that point, although there was no testimony whatever indicating what he meant by “the water level block between the cross sections taken,” or where or how far apart the cross sections were, or whether the point in question was typical or fairly representative of the channel conditions in general, or whether the high water mark represented crest of flow or merely a high storage point, and if the former, whether such maximum erest might have continued a week or a second, or whether such flow at that point might have continued as a maximum flow at any other point on the creek, and particularly at plaintiffs’ intake seven and one-half miles below. It is well known that flotsam is deposited most largely at points of eddy or slow current and by slowly falling water levels rather than by swift direct flow, so that the high water mark was at least equally susceptible to explanation as indicating a backing up of the water at that point, and therefore as an accumulation of flow over an extended period rather than as the flow at one moment of time. A temporary damming of the water, or even a permanent condition due to a flatter grade or a sharp turn just below the point measured, may easily account for the high water mark. There must certainly be some turns in a stream bed which runs about nine miles between points three and three-quarters miles apart, and there is no evidence whatever that the volume of water represented by the cross-section to high water mark at that point represented the flow at any one moment of time. But even if it did represent immediate flow, there was no evidence what the grade of the stream bed was at that point, or whether such grade and other material conditions were sufficiently continuous and representative to enable an engineer to determine the actual head of water even at that point, to say nothing of the conditions at defendants’ dam seven and one-half miles below. In other words, there was no evidence whatever given on the point except opinion testimony based upon utterly inadequate premises.
It seems that the engineer who testified comes within the classification of a skilled observer rather than an expert witness. However, the rules relative to the testimony of both expert witnesses and skilled observers as to their own observations, computations and conclusions are essentially the same. They are stated generally in American Jurisprudence and Corpus Juris as follows:
“If the witness called upon to give expert testimony is acquainted with the facts of the ease — that is, if he has personal knowledge or has made personal observation — he may give his opinion upon the basis of his knowledge and observation in response to direct interrogation, provided he is shown to have sufficient knowledge of the facts to enable him to form an opinion entitled to be given weight by the jury and, according to the weight of authority, provided the witness first testifies to the facts in his own knowledge upon which his opinion is based.” (20 Am. Jur. 666, sec. 793.)
“It is necessary, according to the great weight of authority, that an expert witness giving an opinion upon facts of his own knowledge or based upon his own observation first testify to the facts upon which his opinion is based.” (20 Am. Jur. 666, sec. 794.)
“A skilled witness is permitted to state facts known to him because of his special knowledge and experience, or his inference from facts observed by him where the matter involved is such that persons without his special training could not observe intelligently or draw correct inferences. An expert, whose special training and experience enables him to draw a correct inference from facts outside the range of ordinary human experience, is therefore permitted to state an inference based on an assumption of the truth of facts detailed in evidence. The law does not, however, look with favor upon opinion evidence, and the practice of receiving opinions has been subject to considerable criticism.” (22 C. J. 498, sec. 594.)
“A witness, of special knowledge or skill on a subject outside of the ordinary realm of human experience, may be permitted to state his inference, from facts observed by him, as to matters connected with his specialty, not only because of the frequent difficulty of communicating the facts to the jury but also because, even if the facts could be fully laid before them, they would not possess the special knowledge or training necessary to coordinate and weigh the facts so as to draw the correct and proper inference therefrom. Such a witness is frequently termed an expert, but this is inaccurate, for the skilled witness testifies to the result of his own observation, and occupies the same position as any other witness except that within certain lines he possesses a. superior knowledge which enables him to understand, as one without such special knowledge could not, what he has observed, although he may also be competent to testify as an expert upon hypothetically stated facts.” (22 C. J. 632, sec. 728.)
"It is usually held that a skilled observer who states inferences from sensation must, like an ordinary witness, and for similar reasons, state the facts upon which his opinion is based so far as they permit of detailed enumeration. But there are also cases in which such a witness has been permitted to state his opinion without detailing the facts on which it is based, leaving these to be brought out on cross-examination, and certainly no error is committed where the witness states his conclusion first, and immediately proceeds to state the facts on which it is based.” (22 C. J. 634, sec. 729.)
" * * * , the judgment of an expert, when opposed to undisputed facts and the dictates of common sense, will not support a verdict, and the court should not permit the jury to be influenced by evidence on which they could not, within the laws of correct reasoning, make a finding.” (22 C. J. 733, sec. 823.)
"It may occur that, even where the facts are correctly observed and accurately stated by the witness, they do not lead to the conclusion which he derives from them.” (22 C. J. 727, see. 820.)
"The reasons for rejecting a conclusion become stronger where it is apparent that it cannot reasonably be reached on the facts which are claimed to support it, where such facts are themselves the result of inference, or where the conclusion is not a necessary one.” (22 C. J. 492, sec. 590.)
An expert witness can give an opinion based upon facts previously testified to by him (State v. Megorden, 49 Or. 259, 88 Pac. 306, 14 Ann. Cas. 130), but cannot be permitted to give an opinion or conclusion on facts known to him and not communicated to court or jury; he must, so far as possible, first detail the facts. (State v. Simonis, 39 Or. 111, 65 Pac. 595; State v. McLennan, 82 Or. 621, 162 Pac. 838; State v. Willson, 116 Or. 615, 241 Pac. 843; Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 Pac. (2d) 223, 69 Pac. (2d) 623.)
In Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 113 Pac. 467, this court, adopted the following language from Dougherty v. Milliken, 163 N. Y. 527, 57 N. E. 757, 79 Am. St. Rep. 608: “ It may be broadly stated as a general proposition that there are two classes of eases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclusion thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. The distinction between these two kinds of testimony is apparent. In the one instance the facts are to be stated by the experts and the conclusion is to be drawn by the jury; in the other the expert states the facts and gives his conclusion in the form of an opinion which may be accepted or rejected by the jury.”
With particular reference to engineers’ computations it has been held that a witness who is not a hydraulic engineer may testify to certain measurements he has made of the width and depth of the stream, and the speed of the current, and of the quantity of water then flowing in the stream, from his calculations based upon the facts recounted. (Gallatin v. Corning Irr. Co., 163 Cal. 405, 126 Pac. 864, Ann. Cas. 1914A, 74.)
The supreme court of Oregon in Gallagher v. Kelliher, 58 Or. 557, 114 Pac. 943, 115 Pac. 596, has expressed what seems to us the correct rule with regard to computations of this kind. In that ease it was said: “A surveyor’s opinion as to the result of the survey, unsupported by the details of the survey, both as to the data upon which it is based and the manner of reaching the result is not competent, but when he gives the details of his work, it is a question of law whether his method was correct and a question of fact whether his result is correct.” (Citing Seabrook v. Coos Bay Ice Co., 49 Or. 237, 89 Pac. 417.)
Tested by these rules, it seems clear that the witness’ conclusions as to the maximum flow of the stream and the volume of the pot holes constitute, as a matter of law, no evidence whatever. As to the first the evidence leading up to the computation is indefinite, incomplete and insufficient as a basis of computation and shows that the witness had never even inspected seven and one-half of the nine miles between the dams; two essential elements, proof that the place measured was typical of the stream as a whole, and that the high water at that point was the result entirely of present flow, and not partly of accumulation, are entirely lacking; the method of computation was therefore incorrect as a matter of law. As to the second, the evidence leading up to the computation shows that the witness had never even seen most of the 275 pot holes, and that the method of multiplying the average capacity of the four pot holes measured by 275 was incorrect as a matter of law. Constituting no evidence whatever upon these points, the testimony can form no basis for findings or conclusions.
Even if this were not true, the witness’ computations of the flood flow of the creek as 7,180 inches and the maximum diversion through plaintiffs’ ditch as 656 inches are incredible and impossible when considered together. If the estimated flow seven and one-half miles above plaintiffs’ dam was eleven times the capacity of plaintiffs’ ditch, and if the conditions at the two points were substantially identical, as the witness assumed, it is incredible that the plaintiffs’ dam would not have been washed out at the time of the flow, whereas the evidence showed that no excess flow existed there at all. Or, if not utterly incredible and inconsistent, the presence of a great amount of water seven and a half miles upstream is obviously no proof that there is or will be surplus flow at plaintiffs’ diversion, for the evidence shows there was none in this instance. Finally, in any event, it seems entirely improper to predicate upon the evidence of one admittedly unique occasion — the only such occasion in twelve years, according to the testimony of both parties — a conclusion that “at times of melting snow or after heavy rains * * * there is more than sufficient supply of water available for both parties,” even if upon that occasion some excess or escape flow had existed at plaintiffs’ dam.
Largely upon that testimony it was argued by the defendants, and apparently found by the trial court, that whenever any water at all flows in the stream there is plenty of water for both parties and that in such cases the defendants’ dam does plaintiffs no harm; and that on other occasions even if defendants’ dam is full there is ordinarily no use of releasing the water because the pot holes will absorb all of it. The first conclusion is not supported by the evidence. If it had been, obviously defendants could have made no substantial showing of adverse user as against plaintiffs. The second is equally unsupported by the evidence and is further untenable because it must obviously depend upon four indeterminate variables, namely: (1) Whether the pot holes or part of them are already entirely or partly full; (2) how much additional water might originate in plaintiffs’ watershed below defendants’ dam; (3) how much additional water might be supplied by continuance of the rain or other cause of flow on either or both watersheds; and (4) how much more water than the capacity of their dam the defendants might divert upon their land through their ditch, which has no headgate. In view of these indeterminate variables, it seems obvious that no general rule can possibly be devised to determine what flow at defendants’ dam would suffice to reach plaintiffs’ dam in useful quantities.
It is well settled that a subsequent appropriator attempting to justify his diversion has the burden of proving that it does not injure prior appropriators. (Donich v. Johnson, 77 Mont. 229, 250 Pac. 963.) Certainly here the defendants have not sustained that burden. It is apparent that they have not proved and cannot prove that their diversion would not in any ease harm the plaintiffs simply by evidence as to the amount of flow or volume of water at defendants’ dam or at a point a mile and a half below it. The only possible proof of such non-inter ferenee would be evidence, (1) that in spite of defendants’ diversion there is actually available at the plaintiffs’ point of diversion all the water for which they then have a beneficial use up to the limit of their appropriation; or (2) that if insufficient water is available there defendants’ storage or diversion of water did not contribute to that result. Not only have the defendants failed to prove non-interference with plaintiffs ’ prior right, but the evidence shows affirmatively that there has been such interference and that it is still continuing.
There is no question that one of the paramount needs of the semi-arid states is the conservation of water. However, it is not conserved by permitting a later appropriator utterly to destroy a prior appropriation for the irrigation of some 130 acres by an appropriation to irrigate approximately 30 acres.
We must, therefore, sustain plaintiffs’ objection to that part of the trial court’s finding No. Ill that “in flood times there is more water flowing at said [plaintiffs’] point of diversion than may be put to a beneficial use” (although there is evidence that there has sometimes been such surplus water) and that “in said creek bottom there are approximately two hundred and seventy-five pot holes or depressions which have a combined capacity much greater than any water which might be stored in the reservoir of the defendants”; also to that part of the court’s finding No. IV, except as to the part in parentheses: “(That Sheep Creek is what is known as a dry creek, having no constant flow of water and it only becomes a running stream at times of melting snow or after heavy rains;) that at such times there is more than a sufficient supply of water available for the use of both parties; that at other times and under the average condition of moisture, an occasional rainfall may cause a flow of water at the premises of the defendants, which, if left to meander down the water course of Sheep Creek, would never reach the point of the plaintiffs’ diversion by reason of the numerous so-called pot holes or depressions in the creek bed which would absorb and retain the meager flow of water; that at all of such times the dam and reservoir of the defendants have not constituted an obstruction to the water of Sheep Creek so as to interfere with the prior right of the said plaintiffs. ’ ’
In its sixth finding the court found that the evidence was insufficient to determine what volume of water at the defendants’ premises would be necessary to reach plaintiffs’ diversion in any useful quantity. Not only is that finding true, but the facts above recited indicate that no such evidence can possibly be given, due to the four indeterminate and indeterminable variables mentioned above. We must, therefore, sustain appellants’ objection to the further finding, added by the court about two months after the original findings and conclusions, to the effect that “either party may, upon notice to the other, apply to the court for a further hearing to fix definitely what volume of water is necessary at defendants’ premises to reach the point of diversion of the plaintiffs in any useful quantity.”
The evidence does disclose, however, that there may at times be conditions, such as empty pot holes, dry stream bed, and rainfall principally or entirely above defendants’ dam and not long-continued in character, under which it may be demonstrable that storage or diversion by defendants may not be the proximate cause of plaintiffs’ failure to receive water. In such instances defendants have both the burden and the privilege of showing the facts; but it seems obvious that no general rule can be devised “to fix definitely what volume of water is necessary at defendants’ premises” to reach plaintiffs’ ditch.
The trial court’s conclusion of law No. Ill, which is also attacked by the plaintiffs on this appeal, is as follows:
“That the defendants are entitled to put to a beneficial use any of the water flowing in said creek at their premises which, if permitted to flow, could not reach the plaintiffs’ point of diversion in any useful quantity, but the defendants are hereby restrained and prohibited from using or interfering with any water of said creek which is of sufficient volume, if permitted to flow, to reach the plaintiffs’ point of diversion, except when there is sufficient water flowing in said creek to satisfy the needs of both parties, and if at any time there is a sufficient volume of water in said creek at the defendants’ premises to reach the plaintiffs’ said point of diversion in any useful quantity up to six hundred and fifty-six miner’s inches, the defendants are ordered to provide some means, such as a headgate or spillway, so that such water will not be obstructed and thus prevented from reaching the premises of the plaintiffs. ’ ’
That conclusion of law is erroneous in seeming to make the test the volume of flow at defendant’s dam, to the exclusion of the other material conditions. The test ofodefendants’ right is not whether the particular water at their dam would reach plaintiffs’ ditch, or whether the volume there would be sufficient to convey water to plaintiffs; the test is whether under all the conditions (and not merely with reference to the volume at defendants’ dam) the defendants can impound or divert water without substantially interfering with plaintiffs’ rights. In order to justify their diversion, defendants must be in a position to show affirmatively that under all the conditions such diversion does not reduce or limit the plaintiffs’ receipt of water to which the latter are entitled. Possibly defendants can prove that plaintiffs have received their full appropriation in spite of defendants’ taking of water. Or it may be that in a particular instance defendants can show that the rainfall was sufficiently slight and the stream bed sufficiently dry that no water would reach plaintiffs whether or not the defendants impounded or diverted water at their dam; and in that event defendants’ acts would not be detrimental to plaintiffs. That is the limit of the meaning attributable to the court’s statement on this question in Raymond v. Wimsette, 12 Mont. 551, 31 Pac. 537, 33 Am. St. Rep. 604.
It seems to us that a final disposition of the controversy is necessitated by the fact that these flood water rights of relatively slight value have already involved two trials in the district court and two appeals to this court, and that the decision here appealed from would involve at least one further trial of facts in the district court in an obviously futile attempt to lay down a rule as to what amount flowing in the creek at defendants’ dam would reach plaintiffs’ point of diversion under any and all varying conditions, some of which, as recited above, must neces sarily be continuing or future ones and cannot possibly be ascertained at any instant of time.
The cause is, therefore, remanded to the district court with instructions to enter a final judgment in accordance herewith requiring the defendants to install a headgate at the bottom of their dam sufficient to let all water through without storage or diversion, and to impound or divert the flow of the stream only when such action will not prevent plaintiffs from receiving, or reduce their receipt of, water to which they are entitled. Appellants shall have their costs on appeal.
Associate Justices Erickson and Arnold concur.
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] |
ME. JUSTICE COOPEE
delivered the opinion of the court.
In the complaint it is alleged that the plaintiffs owned a ranch in Jefferson county, of the value of $16,000, describing it; that there was standing upon the premises a house which was occupied by the plaintiffs as their residence, of the value of $4,000; that the dwelling was surrounded by a beautiful lawn, shrubbery, flowers and other plants growing thereon, of the value of $500; that of the farm four acres were good agricultural and gardening lands, of the value of $800. In separate paragraphs there are averments descriptive of the property used in connection with the ranching operations of the plaintiffs which was damaged or destroyed, as follows: Ehubarb, berry and fruit bushes, and other perennial fruit-bearing shrubbery, of the value of $500; household furniture, cooking utensils, linens, linoleum, bedding, household supplies, “a great number of chickens, a large quantity of hay and grain, harvested and stacked, stored and situated in and about the dwelling and out-buildings, of the value of $2,000”; cabbages, potatoes and other vegetables, of the value of $500; that there were standing on the premises chicken-houses, outhouses, stables, sheds, barns, fences, gates, yards, walks and other usual conveniences and necessities for the farm, of the value of $1,000; that plaintiffs also had on the premises numerous irrigation ditches, of the value of $250; that the defendants owned a certain water ditch or canal conveying large quantities of water from Jefferson River and Pipestone Creek, which was badly ■ constructed of loose gravel, sand and soil, with no spillways to carry off surplus water; that grasses, mosses and other debris were permitted to grow and accumulate in the canal and to obstruct the passage of the water; that greater quantities of water than the ditch would carry were turned into it, by reason whereof the ditch and canal broke and the water flowing therein ran over the top and damaged or destroyed $4,000 worth of the plaintiff’s property which was then upon their land and premises.
The demurrer to the complaint is: First, that the complaint does not state a cause of action; second, that it is (a) ambiguous, (b) uncertain and (c) unintelligible, in that (1) it charges in one cause of action damages to both real and personal property without segregating and separately stating and numbering the paragraphs, and (2) that it does not specify the amount of the injury done to each piece of property damaged, separately.
The demurrer was overruled; the defendants filed an answer containing a general denial of all the averments of the complaint; the cause was tried; the jury returned a verdict for $2,200 and judgment was entered in favor of the plaintiffs. The defendants made a motion for a new trial, which was overruled, and they now appeal from the judgment.
After the record was filed here, the court sustained the respondents’ motion to strike from the transcript on appeal what purports to be a bill of exceptions upon the ground that the proceedings in the trial court had never been settled and exemplified by the judge as the law requires. The ease is therefore in. this court upon the sole cjuestion whether the complaint is defective in the particulars set forth in the demurrer.
The plaintiffs are only required to set forth the essential facts of their case with reasonable precision and with particulars enough to advise the defendants of the nature, source and extent of their cause of action. 'The complaint, in substance, avers that-the injuries to plaintiffs’ ranch property were due to loose material with which the ditch was constructed, and negligence of the defendants in failing to keep it clear of weeds and other obstructive material which lessened its carrying capacity, and turning into it larger quantities of water than it was able to carry in that condition. “The entire pleading is ‘easy of comprehension, and free from reasonable doubt, which is all that is necessary.’ (Salmon v. Wilson, 41 Cal. 602.)” (Ward v. Commissioners of Gallatin County, 12 Mont. 23, 29 Pac. 658; Greenebaum v. Taylor, 102 Cal. 624, 36 Pac. 957.)
The complaint is not open to the objections urged against it in the demurrer. If in the opinion of the defendants the complaint was not sufficiently specific to enable them to meet the evidence of the plaintiffs as to the amount of damages the breaking of the ditch caused to the property, a motion to make it more specific wrould have been the appropriate remedy. (Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714; Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252; Jorud v. Woodside, 63 Mont. 23, 206 Pac. 344.) Or, had the defendants made request for a bill of particulars, it would have been a matter which the trial court, in the exercise of its discretion, could have required the plaintiffs to furnish. (Rogness v. Northern Pac. Ry. Co., 59 Mont. 373, 196 Pac. 989; Bogard v. Illinois Cent. R. Co., 116 Ky. 429, 3 Ann. Gas. 160, and extensive note, 76 S. W. 170.) “There is no inflexible rule as to the class of cases in which a bill of particulars will be granted, but it rests within the sound discretion of the court to be ex ercised only in furtherance of justice.” (3 E'ncy. PI. & Pr. 517.)
Section 9130 of our Code authorizes the plaintiff to “unite several causes of action # * ” in the same complaint where they all arise out of !”= * * injuries to property.” Having used the word “property” in its larger sense, it will be held to include injuries to real as well as to personal property. The term “injuries to property” comprehends such injuries as one sustains in his rights of property, whether directly affecting or depriving one of possession and enjoyment of the things the subject of property or not. In this class is included every form of action for an injury as distinguished from a wrong by breach of contract, except libel, slander and malicious prosecution. (Bliss on Code Pleading, sec. 129, p. 217.)
“Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims arising from injuries of all kinds, whether with or without force, whether direct or consequential, and whether to real or personal property.” (Pomeroy’s Code Remedies, 4th ed., sec. 389, p. 517.)
It appears in this case that after the demurrer was over- ruled, the defendants filed an answer containing only general denials. The evidence and the proceedings upon the trial are not subject to inspection, and for aught we are permitted to say, the cause might have been tried upon the merits, without any objection to the admission of evidence at all. In Rooney v. Gray, 145 Cal. 753, 79 Pac. 523, the supreme court of California upon this point said: “When a cause has been tried and a judgment rendered on the facts, in order to warrant a reversal upon the ground of error in overruling a demurrer interposed on the ground of uncertainty in the complaint, it must appear that some substantial right of the demurrant has been affected, some prejudicial error, as distinguished from abstract error, suffered by him, or he has no room for complaint.”
The answer put in issue every averment of the complaint, and, so far as we are able to judge, the cause was tried without surprise to the defendant, even though the complaint were ambiguous and uncertain. (See, also, Hayne on New 'Trial and Appeal, p. 1576.)
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark, concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 This appeal arises from a wage claim filed by the plaintiffs, all firefighters (Firefighters) formerly or currently employed by the City of Billings (City). The City appeals from the Thirteenth Judicial District Court’s order granting the Firefighters’ motion for partial summary judgment and from the court’s judgment awarding damages to the Firefighters for unpaid wages and leave time, and awarding a penalty, attorney fees, and costs. The Firefighters cross-appeal the amount of damages for unpaid wages and leave time, and the amount of the penalty, attorney fees, and costs. We affirm in part, reverse in part, and remand.
¶2 We restate the issues on appeal as follows:
1. Did the District Court err in granting the Firefighters’ motion for partial summary judgment concluding the City was liable for unpaid wages and leave time?
2. Did the District Court err in assessing the penalty for the City’s failure to pay wages?
3. Did the District Court err in awarding costs to the Firefighters?
4. Did the District Court abuse its discretion in awarding attorney fees to the Firefighters?
BACKGROUND
¶3 The City and the Local 521 International Association of Fire Fighters, on behalf of the Firefighters, entered into a collective bargaining agreement with regard to employer-employee relations, wages, hours and other conditions of employment, and to provide a means of resolving grievances. The agreement was renewed every two or three years.
¶4 The agreement in effect prior to July 1, 1995 (the pre-1995 agreement) provided the following pay formula:
a. Hourly rate is based on 2,080 hours per year. To determine this figure, annual base salary will be divided by 2,080 hours.
b. Formula for Regular Monthly Salary: Twenty-six (26) times the last full regular pay, (base pay plus longevity plus holiday pay) divided by twelve (12) equals regular monthly salary. (26 x 1 frp./12 = rms)
c. Regular paydays will be every other Friday.
The salary schedule attached to the pre-1995 agreement set forth a base salary dependent on a firefighter’s position. For example, the base salary listed for a Firefighter 1 position for 1994-1995 was $2,069.79, which was then used to calculate a firefighter’s regular monthly salary.
¶5 The agreement that went into effect on July 1,1995 (the post-1995 agreement) provided the following pay formula:
a. Annual base salary is equal to 2080 hours x hourly base rate of pay listed on the attached Salary Schedule. Hourly base rate is base pay plus special certification pay.
b. Regular payday will be every other Friday.
The salary schedule attached to the post-1995 agreement set forth a base hourly salary. In this case, a Firefighter 1, in 1995-1996, received the base pay of $12.5624 per hour, plus special certification pay of $0.1731 per hour if eligible.
¶6 The Firefighters’ work schedule set forth in both pre-1995 and post-1995 agreements was as follows:
The work schedule shall be a 27-day total work cycle consisting of seven (7) consecutive work shifts of twenty-four (24) hours on duty and forty-eight (48) hours off duty, immediately followed by six (6) consecutive days off.
Based on this work schedule, the Firefighters worked approximately 2,272 hours per year. When the Firefighters were paid every other Friday, the pay stub reflected that they were paid for forty hours per week, regardless of whether they worked more or less than forty hours per week. Although schedules were kept, which would indicate the number of hours worked by the Firefighters, the actual number of hours worked was not sent to the payroll department. This resulted in the Firefighters being paid for only 2,080 hours each year, rather than the 2,272 hours the Firefighters worked each year while on the 27-day work schedule.
¶7 Seventeen Firefighters filed a complaint alleging that the City failed to properly account for or pay the Firefighters for all hours worked and for earned leave time. They claimed that pursuant to Article XII, Section 2(2) of the Montana Constitution, the City was liable for its failure to pay for or account for hours worked in excess of eight hours per day. Further, they alleged the City’s failure to pay wages entitled the Firefighters to a penalty. The Firefighters requested that a class be certified and a common fond be established.
¶8 The Firefighters filed a motion for partial summary judgment. They argued that they had a constitutional right to be paid for every hour they worked in excess of an eight-hour day, and that this right could not be waived or bargained away. They did not argue that they were entitled to overtime for those hours worked, but that the hours were unpaid “straight time.” The Firefighters did not base their claim on any violations of the Fair Labor Standards Act (FLSA). Further, the Firefighters claimed, in addition to straight time, the City failed to properly account for and pay sick and vacation leave time. The City responded that the eight-hour work day provision in the Montana Constitution had no application in this case in fight of §§ 39-4-107 and 39-3-406, MCA, which provide that the eight-hour day does not apply to firefighters working under an established collective bargaining agreement. The City noted that the Firefighters did not allege a violation of any terms of the collective bargaining agreement. The City then filed its own motion requesting summary judgment on all of the Firefighters’ issues.
¶9 The District Court rejected the Firefighters’ claims that they were entitled to unpaid wages pursuant to Article XII, Section 2, of the Montana Constitution. Instead, the court compared the pre- and post-1995 collective bargaining agreements and determined the matter based on a breach of contract theory. The court found that the pre-1995 agreement was an annual wage contract and the post-1995 agreement was an hourly wage contract. Thus, the pre-1995 agreement provided the exact wage to be paid for the year regardless of the number of hours worked. The post-1995 agreement, on the other hand, required that the Firefighters be paid for each hour worked. Accordingly, the Firefighters were entitled to unpaid straight time from 1995 forward. The court determined that the issue of leave time could be worked out under the agreements as well-that the Firefighters’ “leave time should be credited and debited at the same rate.”
¶10 The court certified the matter as a class action and defined the class as all past and present firefighters of the City of Billings who work or worked under the 27-day work schedule. The complaint was amended to include dozens more firefighters.
¶11 A bench trial was held on May 3 and 4, 2005, to determine damages. Based on the court’s prior conclusion that the post-1995 agreement was an hourly wage contract, the court found at trial that the Firefighters worked approximately 2,272 hours per year but were paid for only 2,080 hours per year, and thus concluded they were entitled to recover for wages and benefits associated with the unpaid hours. The court further concluded that the City did not breach its duty to maintain proper payroll records, and that the records were not falsified or intentionally misleading. The court assessed a penalty against the City in the amount of 8.45 percent of the unpaid wages. After a hearing on the amount of attorney fees and costs, the court awarded $625,000 in attorney fees to the Firefighters, declining to award the full one-third contingency fee the Firefighters requested. The court awarded $3,972.98 in costs, although the Firefighters requested $60,154.72. The City appeals the order granting the Firefighters’ motion for partial summary judgment and from the court’s judgment awarding damages in the amount of $3,075,590.30, an 8.45 percent penalty in the amount of $253,000, and the above-mentioned attorney fees, and costs. The Firefighters cross-appeal the amount of damages for unpaid wages and leave time, and the amount of the penalty, attorney fees and costs. Other facts will be discussed below as necessary.
STANDARD OF REVIEW
¶12 This Court’s standard of review of a district court’s grant of summary judgment is de novo. Tefft v. State, 271 Mont. 82, 88, 894 P.2d 317, 321 (1995). A grant of summary judgment is proper only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c); Tefft, 271 Mont. at 88, 894 P.2d at 321.
¶13 We review the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. M. R. Civ. P. 52(a); Reier Broadcasting Co., Inc. v. Reier, 2000 MT 120, ¶ 19, 299 Mont. 463, ¶ 19, 1 P.3d 940, ¶ 19. A court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial 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 committed. Reier Broadcasting Co., Inc., ¶ 19 (citations omitted). We review a district court’s conclusions of law to determine whether those conclusions are correct. Reier Broadcasting Co., Inc., ¶ 20 (citations omitted).
¶14 This Court’s standard of review of a district court’s grant or denial of attorney fees and costs is whether the court abused its discretion. Denton v. First Interstate Bank of Commerce, 2006 MT 193, ¶ 19, 333 Mont. 169, ¶ 19, 142 P.3d 797, ¶ 19. A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice. Pumphrey v. Empire Lath and Plaster, 2006 MT 255, ¶ 9, 334 Mont. 102, ¶ 9, 144 P.3d 813, ¶ 9. Although this Court recognizes that a district court has broad authority to award costs, the issue raised in this appeal regarding the award of costs involves a question of law as to entitlement to costs. See Valeo v. Tabish, 1999 MT 146, ¶ 15, 295 Mont. 34, ¶ 15, 983 P.2d 334, ¶ 15. We review a district court’s conclusions of law to determine if they are correct. Valeo, ¶ 15.
DISCUSSION
¶15 ISSUE 1: Did the District Court err in granting the Firefighters’ motion for partial summary judgment concluding the City was liable for unpaid wages and leave time?
¶16 The City argues on appeal that the District Court erred in granting the Firefighters’ motion for partial summary judgment on the basis of a breach of contract theory when the Firefighters’ theory of recovery was based on the Montana Constitution’s eight-hour day provision. The court disregarded the constitutional argument, stating that Article XII, Section 2, at most “prohibit[s] an employer from compelling an employee to toil more than eight hours as a regular day’s work,” and that in this case, the Firefighters had agreed to the 27-day work cycle which included working more than eight hours in a day. Therefore, using a “common sense” analysis, the District Court concluded that the pre-1995 agreement was an annual wage contract which the City had not breached, and the post-1995 agreement was an hourly wage contract which the City had breached.
¶17 The City contends that the court’s analysis is flawed because the pre-1995 agreement and post-1995 agreement, while expressing the pay formula in different ways, were intended to compensate the Firefighters the same way. In fact, the City states that it intended to compensate the Firefighters for all hours worked under both pre-1995 and post-1995 agreements. The City draws attention to the fact that both sets of contracts refer to annual base salary and hourly rates. In making that argument, the City exposed itself to the possibility that the courts could conclude that the Firefighters were entitled to an hourly wage and, thus, unpaid straight time under both the pre- and post-1995 agreements. However, the Firefighters have not cross-appealed the denial of pre-1995 wages on a breach of contract theory. Thus, the issues before us are whether the District Court erred in concluding that the post-1995 agreement was an hourly wage contract, and secondly, whether the District Court erred in concluding Article XII, Section 2(2) of the Montana Constitution was inapplicable in this case.
A. Did the District Court err in concluding that the post-1995 agreement was an hourly wage contract?
¶18 The interpretation of provisions in a collective bargaining agreement is a question of law. Hughes v. Blankenship, 266 Mont. 150, 154, 879 P.2d 685, 687 (1994). In interpreting written contracts, the court must ascertain the intention of the parties from the writing alone. Wurl v. Polson School Dist. No. 23, 2006 MT 8, ¶ 16, 330 Mont. 282, ¶ 16, 127 P.3d 436, ¶ 16 (citations omitted). Where a contract provision is clear and unambiguous, a court must apply the language as written. Wurl, ¶ 16. If a contract term is ambiguous, interpretation of the term requires resolving a question of fact regarding the intent of the parties to the contract. Wurl, ¶ 17. The initial determination of whether an ambiguity exists in a contract is also a question of law for the court’s determination. Wurl, ¶ 17. An ambiguity exists where the language of the contract, as a whole, could reasonably be subject to two different meanings. Wurl, ¶ 17. The fact that the parties disagree as to the meaning of a contract provision does not necessarily create an ambiguity. Wurl, ¶ 17.
¶19 In this case, as stated above, the post-1995 agreement provided a pay formula based on hourly base pay plus special certification pay. The “base hourly salaries” were attached as Exhibit A to the post-1995 agreement. Special Certification Pay was defined in the agreement as pay that any member of the fire department would receive if he or she held a certification, such as EMT-basic, hazardous material technician, rope rescue technician, etc. Regardless of how many certifications a member held, the pay was $30 per month. However, this pay was further broken down on Exhibit A as $0.1731 per hour. Further, the agreement provided for Higher Classification Pay, which was paid to any firefighter who was “required to accept the responsibilities and carry out the duties of a position or rank above that which he/she normally holds for a period for two (2) hours or more.” This pay was also broken down by hour on Exhibit B of the post-1995 agreement. The pay formula then provided that an annual base salary could be reached by multiplying the hourly base rate by 2,080. Despite this mention of an annual base salary, the post-1995 agreement clearly provided for an hourly wage.
¶20 Given that the post-1995 agreement specifically lists actual hourly wages, there is no basis for treating the contract as an annual salary contract, as the City suggests. For example, a Firefighter I with one certification would have an hourly base rate of $12.7355. Thus, the annual salary would be $26,489.84. Dividing this number by the actual hours worked on the defined schedule would equate to only $11.66 per hour, more than a dollar less per hour than the agreement stated the firefighter was to receive. It is illogical to provide an actual hourly wage but then not pay for every hour worked, thus lowering the agreed-upon hourly wage.
¶21 Although not at issue on appeal, the pre-1995 agreement did not provide an hourly break-down of wages for regular pay, special certification pay, or high certification pay, but rather provided an amount for each type of pay that was then used to determine the regular monthly salary. Further, rather than starting with an hourly rate to reach an annual rate, the pre-1995 agreements provided that an hourly rate was to be derived from the annual rate, presumably for high certification pay and overtime pay purposes. Comparing the agreements further bolsters the court’s conclusion that the post-1995 agreement was intended to be an hourly wage contract.
¶22 The District Court did not err in concluding that the post-1995 agreement provided for an hourly wage and that the Firefighters were to be compensated for each horn worked and were entitled to earn leave time accordingly.
B. Did the District Court err in concluding Article XII, Section 2(2) of the Montana Constitution was inapplicable in this case ?
¶23 The Firefighters argue that Article XII, Section 2(2) of the Montana Constitution gives rise to a duty by employers to account for every hour worked. This part provides:
A maximum period of 8 hours is a regular day’s work in all industries and employment except agriculture and stock raising. The legislature may change this maximum period to promote the general welfare.
This constitutional provision was carried over from the 1889 Montana Constitution which provided: “A period of eight hours shall constitute a day’s work in all industries, occupations, undertakings and employments, except farming and stock raising....” Mont. Const., art. XVIII, § 4 (1889, amended 1935). We have previously held that this provision was not self-executing, but rather it was dependent upon legislative enforcement, pursuant to Article XVIII, Section 5, of the Montana Constitution (1889), which stated: “The legislature by appropriate legislation shall provide for the enforcement of the provisions of this article.” Weston v. Montana State Hwy. Com'n, 186 Mont. 46, 50, 606 P.2d 150, 152 (1980).
¶24 The Firefighters argue that the 1972 Constitution is not so restricted; that is, the eight-hour day guarantee is self-executing. However, the Firefighters ignore the permissive language in Article XII, Section 2(2), allowing the legislature to change the maximum period of eight hours. In fact, the legislature has enacted legislation which provides that, while eight hours is a day’s work in most state and municipal government employment, § 39-4-107(1), MCA, the eight-hour day does “not apply to firefighters who are working a work period established in a collective bargaining agreement entered into between a public employer and a firefighters’ organization or its exclusive representative.” Section 39-4-107(2), MCA. The legislature further provided that in “municipal and county governments, the employer and employee may agree to a workday of more than 8 hours and to a 7-day, 40-hour work period: (a) through a collective bargaining agreement when a collective bargaining unit represents the employee . . . .” Section 39-4-107(4), MCA.
¶25 Here, the Firefighters are represented by a collective bargaining unit, the Local 521 International Association of Fire Fighters, which entered into a collective bargaining agreement on behalf of the Firefighters. The agreement was for a 27-day work cycle which included working 24-hour shifts and sometimes more than 40 hours per week. The Firefighters do not dispute the validity of the agreement, nor do they challenge the statutes that allow such an agreement. Thus, the eight-hour day provision of Article XII, Section 2(2) of the Montana Constitution does not apply in this case. Because it does not apply, we do not need to address the Firefighters’ contention that this provision gives rise to liability when an employer fails to account for every hour its employees work.
¶26 The District Court did not err in granting partial summary judgment to the Firefighters. We affirm the District Court’s judgment awarding unpaid wages and leave time.
¶27 ISSUE 2: Did the District Court err in assessing the penalty for the City’s failure to pay wages?
¶28 Section 39-3-204, MCA, provides in part:
[E]very employer of labor in the state of Montana shall pay to each employee the wages earned by the employee in lawful money of the United States or checks on banks convertible into cash on demand at the full face value of the checks, and a person for whom labor has been performed may not withhold from any employee any wages earned or unpaid for a longer period than 10 business days after the wages are due and payable.
If an employer fails to pay wages within the specified time, a penalty must be “assessed against and paid by the employer to the employee in an amount not to exceed 110% of the wages due and unpaid.” Section 39-3-206, MCA. The maximum penalty of 110 percent of the wages owed must be assessed if the following special circumstances exist:
(a) the employer fails to provide information requested by the department and/or does not cooperate in the department’s investigation of the wage claim;
(b) there is substantial credible evidence that the employer’s payroll records are falsified or intentionally misleading;
(c) the employer has previously violated similar wage and hour statutes within three years prior to the date of filing of the wage claim; or
(d) the employer has issued an insufficient funds paycheck.
Admin. R. M. 24.16.7556. If none of the special circumstances exist, then the penalty will be reduced to 55 percent of the wages determined to be due. Admin. R. M. 24.16.7566. The amount of the penalty to be imposed is not discretionary. Pursuant to the Department of Labor and Industry administrative rules, the penalty must either be 55 percent, 15 percent, or 110 percent of the wages owed depending on the circumstances. Reier Broadcasting Co., Inc., ¶ 27. A district court is required to take judicial notice of the administrative rules and apply the appropriate penalty. Reier Broadcasting Co., Inc., ¶¶ 28, 30; M. R. Evid. 202(d).
¶29 In this case, the District Court disregarded the minimum penalty required by the Administrative Rules and instead imposed a penalty on the City in the amount of 8.45 percent of the unpaid wages. The District Court recognized that the Montana Legislature delegated rule-making authority to the commissioner of the Department of Labor and Industry, but summarily concluded that the commissioner overstepped that authority in fixing a minimum penalty for wage claim cases. Section 2-4-305, MCA, addresses agencies’ rulemaking authority and provides:
(6) Whenever by the express or implied terms of any statute a state agency has authority to adopt rules to implement, interpret, make specific, or otherwise carry out the provisions of the statute, an adoption, amendment, or repeal of a rule is not valid or effective unless it is:
(a) consistent and not in conflict with the statute; and
(b) reasonably necessary to effectuate the purpose of the statute.
An administrative rule will be considered invalid “only upon a clear showing that the regulation adds requirements which are contrary to the statutory language or that it engrafts additional provisions not envisioned by the legislature.” Christenot v. State, Dept. of Commerce, 272 Mont. 396, 400, 901 P.2d 545, 548 (1995) (citing Board of Barbers v. Big Sky College, 192 Mont. 159, 161, 626 P.2d 1269, 1270-71 (1981)). To make this determination, the court must interpret the statute. Christenot, 272 Mont. at 401, 901 P.2d at 548. If the legislative intent cannot be ascertained from the plain words of the statute, then the court must look to the legislative history of the statute. Christenot, 272 Mont. at 401, 901 P.2d at 548. Looking at the plain words of § 39-3-206, MCA, the legislature clearly intended to dissuade employers from violating wage provisions by making such a violation a misdemeanor and requiring a penalty to be assessed, in addition to requiring payment of the full amount of wages. Establishing a 15 percent or 55 percent penalty does not add another requirement. Rather, it sets a minimum within the range acceptable to the legislature. Imposition of a 55 percent penalty for failure to pay wages certainly helps effectuate the purpose of the statute. Reducing that penalty to 15 percent provides an incentive for quick payment of wages. Thus, the District Court erred when it failed to take judicial notice of Admin. R. M. 24.16.7566 and 24.16.7556 and impose a penalty of at least 55 percent, with a possible reduction to 15 percent, of the unpaid wages owed to the Firefighters.
¶30 The Firefighters argue that the record justifies imposing the full penalty of 110 percent, alleging that the City did not cooperate in an investigation of the wage claim, that certain records were not provided in discovery, and that the City’s payroll records were falsified or intentionally misleading. In support of their argument that the City did not cooperate in the investigation of the wage claim, the Firefighters assert that the City retaliated against the Firefighters who filed the lawsuit by reassigning a majority of the original plaintiffs to Station 1, the least desirable of the City’s six fire stations. Further, a supervisor stated that “if it was up to him, he would line them up against the wall and have them shot.” In response, the fire chief explained at the summary judgment hearing that firefighters were transferred according to where they were needed, and that Station 1 may seem to be the least desirable station because that is where the chief is located and that the “perception is you work harder at the station where the chief works.” With regard to the threat from the supervisor, the chief testified that he addressed the matter with the supervisor and instructed all personnel that they were not to discuss the lawsuit. No grievances were filed concerning either incident. The Firefighters fail to show how this conduct constitutes a failure to cooperate with an investigation of the claim.
¶31 The Firefighters also assert that records which might have been used to reconstruct hours worked were not produced in response to their request for production. They point to trial testimony of an assistant fire chief discussing what records he thought he had, or what he thought the City payroll department had, and what he thought had been thrown away as being unimportant since the Firefighters were paid based on forty hours each week regardless of the hours worked. However, the record does not provide conclusive evidence that the City withheld any requested records.
¶32 In support of the Firefighters’ argument that the City kept falsified or intentionally misleading payroll records, the Firefighters point to the fact that records showing actual hours the Firefighters worked were not sent down to the payroll department, but instead were thrown away. Further, the Firefighters assert that the City failed to keep accurate payroll records because the check register showed that each firefighter was paid for forty hours per week, regardless of whether they worked more or less than forty hours per week. The Firefighters analogize this situation with the scenario in Tefft where the court awarded liquidated damages to the plaintiffs for claims brought under the FLSA. Tefft, 271 Mont. at 91, 894 P.2d at 323. The employer in Tefft failed to keep accurate records of the plaintiffs’ actual hours worked. Tefft, 271 Mont. at 86, 894 P.2d at 320. However, that was not the basis for the liquidated damages award to the Tefft plaintiffs. Rather, the State failed to demonstrate it acted in good faith or on reasonable grounds in reducing employees’ wages, thus warranting an award of liquidated damages under the FLSA. Tefft, 271 Mont. at 93, 894 P.2d at 324. Admin. R. M. 24.16.7556 provides a different standard-that there be substantial credible evidence that the employer’s records are falsified or intentionally misleading. Here, the records show that the Firefighters were paid for only forty hours per week. As discussed above, the City was operating under the assumption that pursuant to the collective bargaining agreements, it was only required to pay Firefighters for forty hours per week. This does not provide substantial evidence that the records were falsified or intentionally misleading.
¶33 We conclude the District Court did not err in assessing a penalty, but did err in failing to assess the required 55 percent minimum penalty, with a reduction to 15 percent of the wages determined to be due if the City pays the wages and penalty in a time period specified by the court. We remand to the District Court to assess the appropriate penalty.
¶34 ISSUE 3: Did the District Court err in awarding costs to the Firefighters?
¶35 The Firefighters requested costs in the amount of $60,154.72. The court awarded $3,972.98, limiting recovery of costs to filing and service fees, postage, photocopies, and long distance telephone calls. The court did not award reimbursement of costs for travel expenses, witness fees, or deposition costs. The Firefighters argue they are entitled to all costs pursuant to § 39-3-214, MCA, which provides:
(1) Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.
(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys’ fees.
¶36 The District Court concluded, and the City agrees, that costs should still be limited by § 25-10-201, MCA, which provides:
A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:
(1) the legal fees of witnesses, including mileage, or referees and other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publication when publication is directed;
(4) the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial;
(5) the legal fees paid stenographers for per diem or for copies;
(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;
(7) the reasonable expenses of making transcript for the supreme court;
(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and
(9) such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.
The District Court reasoned that Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 70, 293 Mont. 97, ¶ 70, 973 P.2d 818, ¶ 70, “seems to guide the Court toward limiting costs to those in § 25-10-201, MCA.”
¶37 A trial court has broad discretion in taxing costs, but not every litigation expense is recoverable. Springer v. Becker, 284 Mont. 267, 275, 949 P.2d 641, 645 (1997) (citations omitted). Section 25-10-201, MCA, is an exclusive list of costs which may be taxed to an opponent unless the case is taken out of its operation by a more specialized statute, by stipulation of the parties, or by rule of court. Springer, 284 Mont. at 275, 949 P.2d at 645 (citations omitted); Roseneau Foods, Inc. v. Coleman, 140 Mont. 572, 580, 374 P.2d 87, 91 (1962). This is a wage claim case specifically covered by a more specialized statute, § 39-3-214, MCA, which requires an award of costs which “must include all costs reasonably incurred in connection with the proceeding.” This Court has previously determined that “the legislature’s intent in passing [§ 39-3-214, MCA,] was to provide an employee who wins a judgment for wages due against an employer a vehicle by which to receive attorneys fees and thus be made whole.” Glaspey v. Workman (Glaspey I), 230 Mont. 307, 309, 749 P.2d 1083, 1084 (1988). The same purpose applies in awarding costs-passing the burden to the employer so that the “employee’s net award is preserved intact and is not eroded by the cost of litigation.” Stimac v. State, 248 Mont. 412, 415, 812 P.2d 1246, 1248 (1991). The broad application of § 39-3-214, MCA, allowing recovery of all costs, including attorney fees, incurred in a suit to recover wages is best illustrated in Glaspey 1, 230 Mont. at 308-09, 749 P.2d at 1084, where the Court awarded attorney fees when an employee was forced to file suit to pierce the corporate veil of his prior employer in order to collect wages awarded in a prior successful wage claim action.
¶38 We disagree that Delaware provides authority requiring the court to limit costs in a wage claim case. The issue in Delaware was whether the claimant timely filed his memorandum of costs allowed by § 39-3-214, MCA. Delaware, ¶ 65. In that case, we concluded that § 25-10-501, MCA, controlled when a party was required to file his or her memorandum of costs. Delaware, ¶ 71. Unlike § 25-10-201, MCA, delineating allowable costs in general, § 25-10-501, MCA, setting a deadline of five days for filing a memorandum of costs, does not have a more specific counterpart in the wage claim statutes.
¶39 We conclude that the District Court erred in awarding only $3,972.98 in costs. We reverse and remand for an entry of judgment awarding the Firefighters all reasonable costs incurred in this litigation pursuant to § 39-3-214, MCA.
¶40 ISSUE 4: Did the District Court abuse its discretion in awarding attorney fees to the Firefighters?
¶41 Contrary to the general rule, attorney fees in wage claim actions are taxed as part of the prevailing party’s costs to be awarded. Section 39-3-214, MCA; Delaware, ¶ 70. The purpose of awarding attorney fees to an employee who obtains a judgment in a wage claim is to make the employee whole. Glaspey I, 230 Mont. at 309, 749 P.2d at 1084; Stimac, 248 Mont. at 415, 812 P.2d at 1248. The amount of attorney fees to be awarded is within the discretion of the District Court, and unless an abuse of discretion is shown, an award based on competent evidence will not be disturbed on appeal. Glaspey v. Workman (Glaspey II), 234 Mont. 374, 377, 763 P.2d 666, 668 (1988). The court must hold an evidentiary hearing to determine the reasonableness of the requested fees and elicit evidence based on oral testimony, cross-examination, and the introduction of exhibits, which will be competent evidence upon which attorney fees can be based. Glaspey II, 234 Mont. at 377-78, 763 P.2d at 668. In considering whether to award the fall amount of a contingent fee agreement as a reasonable attorney fee pursuant to § 39-3-214, MCA, a district court must consider the following factors:
1. The novelty and difficulty of the legal and factual issues involved;
2. The time and labor required to perform the legal service properly;
3. The character and importance of the litigation;
4. The result secured by the attorney;
5. The experience, skill, and reputation of the attorney;
6. The fees customarily charged for similar legal services at the time and place where the services were rendered;
7. The ability of the client to pay for the legal services rendered; and
8. The risk of no recovery.
Stimac, 248 Mont. at 417, 812 P.2d at 1249.
¶42 In this case, sixty-four of the Firefighters signed retainer agreements providing for a one-third contingency fee for their attorneys, with the remaining Firefighters to bear a portion of the litigation costs according to the common fund doctrine. The court held a hearing and heard testimony from one of the Firefighters regarding the contingency fee agreement he had signed and his inability to pay attorney fees when he initiated the case. The court also heard argument from the attorneys on both sides with regard to the Stimac factors. The District Court declined to grant the one-third contingency fee. In issuing its judgment, the court considered the Stimac factors and applied them as follows:
1. The novelty and difficulty of the legal and factual issues was moderate; this was an unpaid wages and contract case.
2. The time and labor required from the attorneys was moderate; even though the case is six years old there are only 158 documents in the court file; discovery was extensive and difficult; the in-depth and time consuming analysis was mostly an accounting project.
3. The character and importance of the litigation exceeds that of most cases as it was important not only to the litigants but also to others similarly situated and to the public in general.
4. The results secured by plaintiffs’ attorneys were excellent.
5. The experience, skill and reputation of plaintiffs’ attorneys, and defendant’s attorneys, are seldom surpassed by others in any court; all were very experienced, highly skilled, and very reputable.
6. & 7. The contingency fee agreement was standard and customary for plaintiffs who were not able to pay an hourly fee either individually or as a group.
8. The risk of no recovery was very real to plaintiffs’ attorneys, as it is in all contingency cases.
¶43 The court expounded on some of these factors and considered additional factors. It noted that only one-half of the Firefighters actually agreed to and signed a one-third contingency fee, leaving the others to pay according to the common fund doctrine. It placed great emphasis on the fact that, although the case had gone on for nearly six years, the court file contained fewer documents than might be expected. Further, although the Firefighters’ attorneys took this case on as a contingency fee case, they knew or should have known that if successful, they would be awarded attorney fees as part of their costs. Thus, the court concluded, the attorneys should have kept track of their time. The court relied on its own experience and knowledge of the case to conclude that, despite the significant amount of time, effort and skill on the part of the Firefighters’ counsel, fees based on time would not have amounted to $1,000,000. Noting that the court had been involved with the case from the beginning, heard the evidence, weighed the arguments, and reviewed case law, the court awarded $625,000 in attorney fees. The court stated that this “amount should surely be two to three times the actual time, skills, experience, effort, and all costs (even those not awarded) plaintiffs have invested in this case.” Finally, the court reasoned that this would reasonably, adequately and appropriately reward the Firefighters for the risk of no recovery at all.
¶44 The Firefighters argue that the court abused its discretion when it did not award the full one-third contingency fee, stating that six of the eight factors strongly supported a contingent fee. They contend the court put great weight on the fact that the case went on for six years, and allege that the City was principally responsible for the delay. However, as noted, the court downplayed the significance of the lengthy litigation in that there were few documents in the court file given that length of time. Furthermore, the Firefighters did not provide any evidence showing how the City was responsible for the delay.
¶45 Based on the evidence provided and the court’s familiarity with the case, the court analyzed each of the Stimac factors and exercised its discretion in determining an amount of reasonable attorney fees. We conclude the court’s decision is supported by the record. Since the court did not abuse its discretion in awarding fees, we will not disturb the court’s ruling. Glaspey II, 234 Mont. at 377, 763 P.2d at 668.
CONCLUSION
¶46 We conclude the District Court did not err in granting partial summary judgment in favor of the Firefighters and we affirm the award of unpaid wages and leave time in the amount of $3,075,590.30. We conclude the District Court did not abuse its discretion when it awarded $625,000 in attorney fees. Finally, we conclude the District Court erred when it failed to assess the minimum penalty pursuant to administrative rule, and when it failed to award all reasonable costs incurred by the Firefighters. We reverse and remand for further proceedings consistent with this Opinion.
JUSTICES COTTER, NELSON and MORRIS concur.
The parties argued and the District Court decided this issue based on Admin. R. M. 24.16.7561, which is entitled “Penalty for Minimum Wage and Overtime Claims.” This case involves neither a minimum wage claim nor an overtime claim. The appropriate rule is Admin. R. M. 24.16.7566, entitled “Penalty for Claims Involving Other Kinds of Compensation.” Admin. R. M. 24.16.7566 provides that penalties are to be calculated as follows:
(a) a penalty equal to 55% of the wages determined to be due to the employee will be imposed in all determinations issued by the department, but
(b) the department will reduce the penalty to 15% of the wages determined to be due if the employer pays the wages found due in the time period specified in the determination as well a penalty equal to 15% of that amount.
(2) If the claim involves any of the special circumstances of [Admin. R. M.] 24.16.7556, the department will impose the maximum penalty allowed by law.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Plaintiff William C. Weimar (Weimar) and Defendant Mike Lyons, individually and d/b/a Lyons Concrete, Inc. (individually and collectively “Lyons,” as appropriate), entered into an agreement under which Lyons would construct certain concrete works on Weimar’s property. Disputes over payment arose, leading to Lyons’ filing of a construction lien on Weimar’s property and this action by Weimar to expunge the hen. Weimar appeals from the findings of fact, conclusions of law and judgment entered by the Twentieth Judicial District, Lake Comity, granting Lyons judgment against Weimar in the amount of $16,763, plus interest at 1.5 percent per month from August 18, 2003, until paid, plus reasonable costs and attorney fees as determined by the District Court. We affirm in part and reverse in part.
¶2 We restate the issues on appeal as follows:
¶3 (1) Did the District Court abuse its discretion by going beyond the pretrial order to hear evidence on the nature of the parties’ agreement?
¶4 (2) Was there sufficient evidence to support the District Court’s findings and conclusions that there had been a written fixed price contract followed by a series of binding oral agreements, its determination of the amount owed thereunder, and that Weimar had waived deficiencies in the work by his actions?
¶5 (3) Did the District Court err by awarding Weimar only $8,967.19 for the costs of repair or replacement work done by Clark-Salsbury Contracting, Inc.?
¶6 (4) Did the District Court err in allowing Mike Lyons to offer expert testimony concerning the quality of the work?
¶7 (5) Did the District Court err by concluding that Lyons had standing to file his construction lien and counterclaim?
¶8 (6) Did the District Court err in granting Lyons interest at 1.5 percent per month under § 28-2-2104(1), MCA?
¶9 (7) Is Weimar entitled to his costs and attorney fees as the prevailing party?
BACKGROUND
¶10 The parties entered an agreement whereby Lyons would provide concrete work on Weimar’s property. The nature of this agreement was disputed. Lyons asserts that the parties entered into a series of agreements, beginning with a May 1,2003, written contract to perform work for $ 19,810, followed by verbal understandings to perform certain additional concrete and related work on a time and material basis. Weimar alleges the parties agreed to a single, time and material-based contract.
¶11 After the project began, Lyons invoiced Weimar for $14,389, which he asserted at trial represented a portion of the work under the written contract and some of the additional work orally agreed to. Weimar paid that sum. Thereafter, Lyons completed the project and invoiced Weimar for that work in the amount of $25,731. Weimar did not make payment on that invoice and instead claimed that the $14,389 he earlier paid was sufficient to cover Lyons’ work.
¶12 Lyons, as “Mike Lyons d/b/a Lyons Concrete, Inc.,” filed a construction lien against Weimar’s property, claiming the sum of $26,031. In response, Weimar instituted an action to expunge the lien and sought damages resulting from its filing, to which counterclaims reasserting the construction claim were filed by Mike Lyons, individually and d/b/a Lyons Concrete, Inc. Weimar responded by filing a motion to dismiss Lyons’ counterclaim and to expunge the lien on the principal ground that the lien claimant had no standing to maintain an action under § 30-13-215, MCA, because Lyons Concrete, Inc., a Montana corporation, had been involuntarily dissolved by the Montana Secretary of State on December 2,1996, pursuant to § 35-6-104, MCA, for failure to file the first annual corporate report. New articles of incorporation for Lyons Concrete, Inc., were filed by Lyons and approved by the Secretary of State on November 7, 2003. The court denied the motion to dismiss and to expunge the lien on February 11, 2004, and also held, in an order entered pursuant to Lyons’ motion for partial summary judgment, that any and all relief that may be granted to Weimar pursuant to his complaint would be enforceable against the Defendants Mike Lyons, individually, Mike Lyons d/b/a Lyons Concrete, and/or Lyons Concrete, Inc., whether it be the original, the dissolved corporation, or the newly-formed corporation. The court reciprocally held that “[a]ny and all relief sought by [Lyons] pursuant to his counterclaim shall be enforceable by the same entities set forth above against [Weimar].”
¶13 On September 10, 2004, Weimar filed a motion for change of venue on the grounds that there was a sign advertising the business of Lyons Concrete on the courthouse lawn, which indicated that an impartial trial could not be had. The District Court denied this motion. On October 27, 2005, Lyons filed a motion in limine to exclude expert witnesses for Weimar’s failure to answer interrogatories, which sought the identity of experts and the substance of their testimony. The motion also sought exclusion of evidence in support of Weimar’s defense to Lyons’ claim under § 28-2-2104, MCA, for interest on residential construction contracts exceeding $400,000 “at the rate of 1.5% a month or a pro rata fraction of that amount on the unpaid balance.” Section 28-2-2104(1), MCA. The District Court denied Lyons’ request to exclude Weimar’s witnesses, but forbade Weimar from contesting the applicability of § 28-2-2101 et seq., MCA, to this contract, both as a discovery sanction and upon Weimar’s admission that the total cost of construction work on Weimar’s property performed by all contractors, not just Lyons, was over $400,000.
¶14 A bench trial was held on November 17, 2005. The District Court found the parties had entered into a written contract for identified work in the sum of $19,810, followed by “a series of binding oral agreements” for additional work and extras. The court further found that while some of the work performed by Lyons was not done in a workmanlike manner, Weimar had waived many of the deficiencies in Lyons’ work by accepting the work, causing the deficiencies by direct order, contributing to the deficiencies by insisting on hasty performance, and contributing to the deficiencies by performing improper preparation work incorporated into the final product. Moreover, the court found that in ‘Weimar’s rush to complete the project prior to the appraisal date, he repeatedly advised his subcontractors to disregard [Lyons’] potential defects with the admonition to do the best they can by the appraised date, ‘even if we have to pull it out and fix it later.’” The court did, however, credit Weimar with the sum of $8,967.19 for the costs of work by ClarkSalsbury to repair that portion of Lyons’ deficient work that had not been caused by Weimar or his employees or had otherwise been waived. As a result, the District Court entered judgment against Plaintiff Weimar and Weimar Investments Limited Partnership in the principal amount of $16,763, plus interest at 1.5 percent per month from August 18, 2003, until paid, plus reasonable costs and attorney fees to be determined by the District Court.
¶15 On December 16, 2005, Lyons filed an affidavit of attorney fees and costs totaling $24,442.50. Although not objecting to this amount, Weimar nonetheless asserted that he was the true prevailing party and, as such, was entitled to costs and attorney fees. He further filed a motion to alter or amend judgment on various grounds. The District Court denied Weimar’s motion and, on February 1, 2006, entered an order awarding Lyons costs of $190 and attorney fees of $25,980.50 in addition to the amounts awarded under the contract claims. Weimar appeals.
STANDARD OF REVIEW
¶16 This Court applies a clearly erroneous standard using a three-part test to review a district court’s findings of fact:
First, we review the record to determine 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 the evidence; and third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still conclude that a finding is clearly erroneous when a review of the record leaves the Court with the definite and firm conviction that a mistake has been made. Fiedler v. Fiedler (1994), 266 Mont. 133, 137-38, 879 P.2d 675, 678 (citations omitted).
James Talcott Const. v. P & D, 2006 MT 188, ¶ 26, 333 Mont. 107, ¶ 26, 141 P.3d 1200, ¶ 26. Our standard of review for conclusions of law is whether the district court correctly interpreted the applicable law. Talcott, ¶ 26. A court’s ruling on the admissibility of evidence, which includes a witness’s testimony, is subject to an abuse of discretion standard and we will not overturn a court’s ruling absent a showing of an abuse of discretion. Miranti v. Orms, 253 Mont. 231, 833 P.2d 164 (1992).
¶17 We apply the abuse of discretion standard to our review of an award of damages. Graveley Simmental Ranch Co. v. Quigley, 2003 MT 34, ¶ 21, 314 Mont. 226, ¶ 21, 65 P.3d 225, ¶ 21. However, “[a] district court’s award of prejudgment interest is a question of law; therefore, this Court determines whether the district court correctly applied the law.” Talcott, ¶ 28 (citing American Music Co. v. Higbee, 2004 MT 349, ¶ 13, 324 Mont. 348, ¶ 13, 103 P.3d 518, ¶ 13) (citation omitted).
DISCUSSION
¶18 (1) Did the District Court abuse its discretion by going beyond the pretrial order to hear evidence on the nature of the parties’ agreement ?
¶19 Weimar argues that the District Court violated the well established principle that a court may not consider issues outside the pleadings. Weimar contends the complaint alleged and Lyons’ answer admitted that the original contract was partially written and partially verbal, and was based on “time and material,” but not to exceed $19,810. Weimar further contends that there was nothing in the pretrial order to the contrary, and that the District Court thus erred by allowing Lyons to introduce evidence regarding the nature of the parties’ agreement.
¶20 The pretrial order governs “the subsequent course of the action unless modified by a subsequent order.” M. R. Civ. P. 16(e). “The purpose of pretrial orders is to simplify issues, prevent surprise and allow counsel to prepare their cases for trial based on the pretrial order.” Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 34, 295 Mont. 438, ¶ 34, 983 P.2d 999, ¶ 34 (citing State ex rel. Ins. Fund v. Berg, 279 Mont. 161, 180, 927 P.2d 975, 986 (1996)). “A legal theory or factual issue for trial must be ‘at least implicitly included in the pretrial order;’ however, pretrial orders should be liberally construed to permit any issues at trial that are ‘embraced within [their] language.’ ” Point Service Corp. v. Myers, 2005 MT 322, ¶ 19, 329 Mont. 502, ¶ 19, 125 P.3d 1107, ¶ 19 (quoting Plath v. Schonrock, 2003 MT 21, ¶ 55, 314 Mont. 101, ¶ 55, 64 P.3d 984, ¶ 55) (citations omitted).
¶21 While the pre-trial order stated as an agreed fact that “Plaintiff and Defendant Mike Lyons made a verbal agreement for certain concrete and related work on a time and material basis,” it also recognized the parties’ differing allegations regarding the nature of the agreement. In opposition to Weimar’s assertions, Lyons contended that:
On or about May 1, 2003, Plaintiff and Defendant Lyons Concrete, Inc. entered into a written contract under the terms of which said Defendant agreed to install certain concrete work on Plaintiffs property for the sum of $19,810.
Lyons Concrete, Inc. entered into a series of contracts, both written and oral, with Plaintiff to provide concrete work on Plaintiffs property. The contracts at issue here are the May 1, 2003 written contract to perform certain work for $19,810 followed by a verbal contract to do additional work on a time and materials basis.
¶22 We conclude that the pre-trial order adequately set forth the parties’ conflicting views about their agreements and that the District Court did not abuse its discretion by hearing evidence on the nature of the agreements.
¶23 (2) Was there sufficient evidence to support the District Court’s findings and conclusions that there had been a written fixed price contract followed by a series of binding oral agreements, its determination of the amount owed thereunder, and that Weimar had waived deficiencies in the work by his actions?
¶24 The District Court entered findings of fact as follows:
3. That Lyons Concrete, Inc. entered into a series of contracts, both written and oral, with Plaintiff to provide concrete work on Plaintiffs property. The contracts at issue here are the May 1, 2003 written contract to perform certain work for $19,810 followed by a verbal contract for additional work and extras.
4. That Lyons invoiced Weimar $14,389 [invoice #7424] for a portion of the work on the written contract and additional work performed under an oral agreement.
5. That Weimar paid invoice #7424 in the amount of $14,389 in full.
6. That thereafter, Lyons completed performance of the written contract and several additional items under oral agreements and invoiced Weimar for that work at invoice #8056 on July 17, 2003 in the amount of $25,731.
16. That Weimar did not testify nor introduce any evidence refuting Lyons’ claim to a written contract for a fixed price of $19,810.
In a conclusion of law, the court concluded that there was a written contract to perform the identified work for the sum of $19,810, as well as a series of binding oral agreements for additional concrete work totaling $20,310.
¶25 Weimar argues there was insufficient evidence to support the court’s findings of a fixed price contract and maintains the parties’ actual conduct is inconsistent with that idea, as the testimony demonstrated that Weimar’s employees did some of the forming work-since Lyons was unable to do it-without Lyons offering any credit back for the work. Weimar notes that when he attempted to settle up his account with Lyons, he requested the actual cost information, as he believed the work was a time and materials project. Weimar also asserts that even if it was a fixed price contract, the poor quality of the work, which required corrective measures, amounted to a breach of the agreement, thereby excusing any further performance by Weimar.
¶26 ‘Whether or not a contract exists is a combined issue of fact and law.” Austin v. Cash, 274 Mont. 54, 59, 906 P.2d 669, 672 (1995). We conclude that the record contains sufficient evidence to support the District Court’s findings and conclusions that there had been a written fixed price contract, followed by subsequent binding oral agreements. The written document contained a detailed description of the tasks to be performed by Lyons and the respective price for each, totaling $19,810, was signed by both parties, and supported by consideration. The existence of a subsequent oral agreement for additional work was supported by evidence of agreed-upon work outside the scope of the written contract, such as the pier caps, wall caps, and mechanical pad. Thus, despite the existence of conflicting evidence, we conclude that the court’s determination of the existence of multiple agreements was supported by substantial credible evidence.
¶27 With regard to Weimar’s contention that, even if there was a fixed price contract, the poor quality of Lyons’ work, which required corrective measures, constituted a breach of the agreement, thereby excusing Weimar’s performance, we conclude that, based on our review of the record, the District Court correctly determined that Lyons completed the work he had agreed to. To the extent deficiencies existed in the work, they were either waived by Weimar’s actions, or Weimar was granted reimbursement for their repair. Regarding Weimar’s haste on the project, Lyons testified that:
As soon as we got done with the pool deck, [Weimar] said, “I need some help here. I need these caps poured on the fountains right away.” And I told him that I could see-with the radius walls and stuff, I could try to form that cap up but that it was going to take a long time. And I was real busy and I told him that I didn’t have time to do it. And he said his crew would do it. I said, “Well, if they could form it up, we could come out and pour it.”
¶28 Then, when it came time to pour, Lyons noticed that the forming had been completed improperly by Weimar’s crew and mentioned that it may lead to problems, yet was told by Weimar employee Monte Berg that “[w]e’ve got to have it poured, let’s do it.” Berg testified that “Mike [Lyons] didn’t have time to do the forming on Mr. Weimar’s schedule. And we were just told to go out and do the best we could, put it together, and try to make something happen.” Lyons testified that Weimar told him to pour despite imminent rain and that Weimar had stated “he would take responsibility,” with Berg likewise testifying that he overhead Weimar tell Lyons to pour the concrete in the rain. The record demonstrates that deficiencies found in the sidewalk were the result of pouring the concrete in the rain. This continual rush to complete the project, even at the risk of having to repair the work later, sufficiently demonstrated that deficiencies in Lyons’ work were occasioned by Weimar’s own haste.
¶29 Consequently, Lyons’ completion of the work entitled him to the full $19,810, as called for by the written contract, less the amount, discussed below, Weimar was granted for repair of deficiencies in the work. Regarding the oral agreements, the court weighed Weimar’s testimony about the appropriate amount owed against Lyons’ testimony that he charged his regular, fair rate. “It is well-established that the testimony of one witness is sufficient to prove any fact.” Eustance v. State, 2005 MT 34, ¶ 11, 326 Mont. 77, ¶ 11, 107 P.3d 478, ¶ 11 (citations omitted). Moreover, “[i]n nonjury trials, the credibility of a witness and the weight which his or her testimony should be afforded is within the sound discretion of the district court. We will not reweigh the evidence and substitute our judgment for that of the court under such circumstances.” In re Marriage of Epperson, 2005 MT 46, ¶ 23, 326 Mont. 142, ¶ 23, 107 P.3d 1268, ¶ 23 (citations omitted). Therefore, Lyons’ testimony, even if self-serving, was sufficient to support the District Court’s determination that his billing was the correct amount due for the additional services provided.
¶30 We affirm the District Court’s findings and conclusions regarding the parties’ agreement and the amounts owed thereunder.
¶31 (3) Did the District Court err by awarding Weimar only $8,967.19 for the costs of repair or replacement work done by Clark-Salsbury Contracting, Inc.?
¶32 Weimar argues the District Court erred in allowing only $8,967.19 in reimbursement for the cost of repair or replacement of the deficiencies in Lyons’ work. Weimar contends that the court intended to allow for the complete “cost of repair or replacement done by ClarkSalsbury Contracting, Inc.,” Finding of Fact #11, but erred by failing to grant the entire amount of Clark-Salsbury’s bill, or $30,169. Lyons responds that Weimar’s belief about the court’s intention is incorrect, offering that such a result would be directly inconsistent with the court’s conclusion that Weimar had contributed to the deficient work by his actions. We agree with Lyons.
¶33 As seen above, it was established that Weimar waived or caused many of the deficiencies by accepting the work, making improper additions to the work, and issuing hasty and ill-conceived commands. Although not assessing monetary values to the individual losses occasioned by each of Weimar’s actions, the District Court nonetheless had before it the evidence of those actions and their consequences, which provided substantial evidence for its assessment of costs necessary to repair those deficiencies that were Lyons’ responsibility. Although the parties did not attempt to apportion the Clark-Salsbury bill between them during the trial, the District Court could properly do so by making inferences from the evidence regarding the cause of the deficiencies. The court thus concluded that $8,967.19 was an appropriate measure for reimbursement of Weimar for defects in the work not caused by Weimar’s own actions. We conclude that the District Court did not err in so doing.
¶34 (4) Did the District Court err in allowing Mike Lyons to offer expert testimony concerning the quality of the work ?
¶35 Weimar argues that because Lyons failed to serve an expert disclosure statement required by the scheduling order, he should have been barred from testifying as an expert at trial. Lyons counters that he has over thirty years of concrete experience, which well qualified him to testify regarding the quality of his own product, but, in any event, insists that he did not need to be named as an expert to offer his opinion on why his own work suffered under the circumstances of the construction. Moreover, Lyons contends he did not disclose himself as an expert, because Weimar failed to disclose any experts.
¶36 The spirit of the Montana Rules of Civil Procedure requires liberal disclosure on the part of all parties, including the disclosure of witnesses. Smith v. Babcock, 157 Mont. 81, 92, 482 P.2d 1014, 1020 (1971). As such, this Court has recognized that allowing an undisclosed expert witness to testify may constitute reversible error. Miranti, 253 Mont. at 235, 833 P.2d at 166 (determining that the district court abused its discretion when it allowed two witnesses to testify as experts, when they had only been listed as lay witnesses); see also Vestre v. Lambert, 249 Mont. 455, 462, 817 P.2d 219, 223 (1991) (Court committed reversible error when it allowed the defendant to solicit ion disclosed expert testimony from a witness previously called to discuss factual issues, when neither party had listed the witness as an expert.). This rule is founded on concerns over prejudice: “Failure to disclose an expert witness will usually prejudice the opposing party because it has (1) no time to prepare for the witness, (2) no time to effectively plan for cross-examination of the witness, and (3) no time to obtain an expert to refute or question the testimony of the witness.” Superior Enterprises v. Montana Power Co., 2002 MT 139, ¶ 18, 310 Mont. 198, ¶ 18, 49 P.3d 565, ¶ 18 (citing Babcock, 157 Mont. at 92, 482 P.2d at 1020).
¶37 However, such concerns about prejudicial impact are not evident under the circumstances here. Lyons was not only the contractor who had performed the work, he was also the party being sued. It was obvious that he would testify regarding the extent and quality of his own work. Indeed, Weimar’s responses to Lyons’ discovery requests listed Lyons as a person Weimar expected to call as a witness and farther explained that he expected Lyons to testify about the defects in his work. Weimar knew Lyons would testify, had ample time to plan his examination of Lyons, and was prepared to respond to Lyons’ testimony with his own expert testimony regarding the quality of Lyons’ workmanship. Therefore, Weimar suffered no prejudice.
¶38 We conclude that the District Court did not abuse its discretion in permitting Lyons to give opinion testimony concerning the quality of his own workmanship and the reasons for the lower quality of work on this project.
¶39 (5) Did the District Court err by concluding that Lyons had standing to file his construction lien and counterclaim?
¶40 Prior to trial, Weimar sought to expunge Lyons’ lien on the grounds that the lien claimant- “Mike Lyons doing business as Lyons Concrete, Inc.”-was without standing because, at the time of the lien filing, Lyons Concrete, Inc., had been involuntarily dissolved as a Montana corporation. The District Court denied Weimar’s motion, and ruled thereafter that Weimar was equitably estopped from denying the corporate existence of Lyons Concrete, Inc., which it determined to be a valid lien claimant. The District Court further ruled that any relief awarded to Weimar would be enforceable against any of the Lyons entities and individuals. After trial, the court concluded that “Defendants Mike Lyons and Lyons Concrete, Inc.,” were entitled to judgment on the lien.
¶41 Weimar argues that because the lien was recorded and sought to be enforced by “Mike Lyons doing business as Lyons Concrete, Inc.,” which Weimar describes, in light of the corporation’s involuntary dissolution, as an “unregistered fictitious party,” it cannot be sustained for failure to comply with § 30-13-215, MCA, which provides that “[n]o person or persons conducting or transacting business in this state without an effective certificate of registration of an assumed business name ... may maintain any suit or action in any of the courts of this state under such name.” Thus, Weimar reasons that, because Lyons Concrete, Inc., was not registered, and “Mike Lyons, individually,” was not named on the lien as a claimant, neither Lyons Concrete, Inc., nor Mike Lyons were valid lien claimants and the construction lien was void ab initio and unenforceable. Further, he asserts that Lyons’ counterclaim was similarly afflicted. We disagree.
¶42 Pursuant to Montana’s construction lien statutes, a person who furnishes services or materials pursuant to a real estate improvement contract may claim a construction lien to secure the payment of the contract price. Section 71-3-523, MCA. “This Court has uniformly held that the requirements of the mech anic’s lien statutes as to procedure will be strictly enforced. Once the procedure has been fulfilled, the statutes will be liberally construed so as to give effect to their remedial character.” General Elec. Supply Co., Etc. v. Bennett, 192 Mont. 110, 113-14, 626 P.2d 844, 846 (1981) (citations omitted).
¶43 Weimar challenges none of the procedures employed by Lyons, only the names listed as lien claimants. In Kosena v. Eck, 195 Mont. 12, 22, 635 P.2d 1287, 1293 (1981), the trial court noted several alleged defects in the mechanic’s lien, including that the lien had been filed by “Bruce A. Kosena,” but that the action had been brought by “Bruce A. Kosena, d/b/a The Pub.” This Court described the alleged error as an “inconsequential technical discrepancy” and concluded it would not invalidate an otherwise valid lien, repeating the admonition that the lien statute “must be interpreted liberally to protect the right of the lien.” Kosena, 195 Mont. at 22, 635 P.2d at 1293.
¶44 Likewise, it is clear in this case that Mike Lyons was listed individually as a lien claimant. The lien adequately identified Mike Lyons and imparted notice to Weimar of Mike Lyons’ status as a lien claimant. The distinction Weimar raises is an “inconsequential technical discrepancy” that caused no prejudice to Weimar. Kosena, 195 Mont. at 22, 635 P.2d at 1293. Construing the statute liberally to protect the right to lien, we conclude Mike Lyons had standing to pursue a hen as “[a] person who furnishes services or materials pursuant to areal estate improvement contract,” § 71-3-523, MCA, and to file a counterclaim to foreclose the lien.
¶45 Regarding Lyons Concrete, Inc., the District Corut concluded that the corporation was likewise a valid lien claimant and entitled to judgment “under the doctrine of Corporation by Estoppel.” Weimar acknowledges this equitable doctrine, but argues that its application here makes no sense because a dissolved corporation does not exist and could not receive payment on any judgment awarded in its favor. Guidance on the doctrine is provided by Official Comments to § 35-1-119, MCA:
This doctrine [corporation by estoppel] provides that if (a) a business held itself out as a corporation, and (b) if a third party dealing with it assumed it to be a corporation, both the corporation and the third party are estopped from raising the issue as to whether or not the corporation is validly incorporated.
“In short, the fact that an entity is not a corporation should not, in and of itself, be a defense to an otherwise valid obligation.” General Comments to § 35-1-119, MCA. We applied this doctrine in Valley Victory Church v. Sandon:
The doctrine prevents a party from denying a party-corporation’s status. See, e.g., Cranson v. Int’l Business Machs. Corp. (Md. 1964), 200 A.2d 33, 39 (“[W]here one has recognized the corporate existence of an association, he is estopped to assert the contrary with respect to a claim arising out of such dealings.”); Timberline Equip. Co., Inc. v. Davenport (Or. 1973), 514 P.2d 1109, 1112. The doctrine may apply to the corporation itself, or to the corporation’s opponent. Compare Ohaco Sheep Co., Inc. v. Heirs of Ohaco (Ariz. App.1986), 713 P.2d 343, 346 (applying doctrine to stockholders or partners of the purported corporation); with Lettinga v. Agristor Credit Corp. (6th Cir.1982), 686 F.2d 442, 446 (“A person or entity who has contracted with, or otherwise dealt with a company as a corporation is estopped to deny its corporate existence.”). The doctrine rests upon equitable principles, and should only be applied when equity requires it.
Valley Victory Church, 2005 MT 72, ¶ 26, 326 Mont. 340, ¶ 26, 109 P.3d 273, ¶ 26.
¶46 We conclude that equity requires the doctrine’s application here. In support of his motion for partial summary judgment on this issue, Lyons filed an affidavit averring that he was unaware of the involuntary dissolution of Lyons Concrete, Inc., that he continuously acted in good faith as a corporation until he was made aware of the dissolution, and that he filed new articles of incorporation under the same name of Lyons Concrete, Inc., immediately upon learning of the involuntary dissolution. Moreover, Lyons Concrete, Inc., fulfilled its contract with Weimar in good faith. For Weimar’s part, he contracted with the entity as a corporation, accepted the benefit of the entity’s performance, and even partially paid the entity for that performance.
¶47 We conclude from these circumstances that it would be inequitable for Weimar to now avoid an obligation because Lyons Concrete, Inc., though having acted in good faith through its principals, had been involuntarily dissolved. Weimar is estopped from denying the corporate status of Lyons Concrete, Inc., and, with that conclusion, it was not necessary for Lyons Concrete, Inc., to register as an assumed business name under § 30-13-215, MCA. Lastly, we are confident that Lyons will devise a solution to the practical issue of whom Weimar should pay, but, in any event, we will leave that issue to be resolved on remand.
¶48 (6) Did the District Court err in granting Lyons interest at 1.5 percent under § 28-2-2104(1), MCA?
¶49 Prior to trial, Lyons filed a motion in limine to forbid any evidence in support of Weimar’s defense to Lyons’ claim under § 28-2-2101 et seq., MCA, regarding assessment of interest on construction contracts. The District Court granted the motion, forbidding Weimar from contesting the applicability of the statute to his contract with Lyons, both as a discovery sanction for Weimar’s failing to answer discovery and upon Weimar’s admission that the total cost of the construction work on Weimar’s property exceeded $400,000. Thus, the District Court, in its findings of fact, conclusions of law and judgment, concluded that, pursuant to § 28-2-2104, MCA, Lyons was entitled to recover interest at the rate of 1.5 percent per month upon the sum of $16,763.81 from August 18, 2003, until paid.
¶50 Weimar first argues that, because he did not receive notice of the interest provision, it cannot be applied to him by virtue of § 28-2-2104(3), MCA, which provides that “[ijnterest is not required to be paid pursuant to this section unless the owner, contractor ... has been notified of the requirements of this section at the time the request for payment is made.” However, Lyons notes that Weimar did not raise this lack of notice provision at any time prior to or during the trial, instead raising it for the first time in his post-trial motion to alter or amend, and at that point there was no evidence in the record from which the notice issue could be determined. As such, we agree with Lyons that Weimar waived his right to contest the lack of notice. The interest statute had been raised prior to trial by Lyons and was the subject of pre-trial briefing by the parties. While Weimar has been prohibited from contesting the applicability of the statute to the contract, that ruling did not bar him from demonstrating that notice, as required by the statute, had not been given. Weimar had opportunity to raise the lack of notice as a defense and failed to do so.
¶51 Weimar also argues that the District Court erred in concluding that Lyons was entitled to recover interest under these statutory provisions, because Weimar’s contract with Lyons did not call for construction work valued greater than $400,000. Weimar does not dispute that all of the improvements to his property totaled more than $400,000, but he argues this interest provision only applies when an individual contract costs that much. Weimar reasons that if this statute was applied to Lyons’ contract, then it would likewise apply to any other small construction project-“a dog run, a fence or a sprinkler system’-completed on a property on which over $400,000 in construction work had previously been completed. Such a result, Weimar maintains, would be absurd.
¶52 We agree with Weimar’s interpretation of the statute. The interest obligation is imposed upon “a periodic or final payment that is required by a construction contract to be paid by an owner to a contractor ....” Section 28-2-2104(1), MCA. “Construction contract” is defined as “a written agreement between an owner and a contractor for the contractor to construct or improve” real property. Section 28-2-2101(1), MCA. In turn, “improvement” means “all or a part of a residential or commercial building, structure, area of real property....” Section 28-2-2101(5), MCA.
¶53 An exception to the interest assessment is made for “improvements to real property intended for residential purposes with a total cost of less than $400,000.” Section 28-2-2107, MCA. From a plain reading of these provisions, we conclude that the exception applies to a construction contract between an owner and contractor for an improvement to residential real property with a total cost of less than $400,000. Clearly, Weimar’s contract with Lyons was for less than $400,000, and, therefore, this interest statute did not apply. Other interest statutes, not at issue here, may be applicable.
¶54 We thus turn to the District Court’s order prohibiting Weimar from contesting the application of the interest statute to the contract as a discovery sanction. Having concluded that the District Court erred in determining that the statute applied, we further conclude that it was inappropriate and an abuse of discretion for the District Court to impose the interest under an inapplicable statute as a sanction for discovery abuse. While a sanction may have been appropriate for the discovery error, Weimar should not have to bear the penalty of an interest assessment under a statute which, as a matter of law, did not apply to his contract, and that assessment is reversed. Upon remand, if Lyons yet clamors for imposition of a discovery sanction that matter may be brought to the attention of the District Court.
¶55 (7) Is Weimar entitled to his costs and attorney fees as the prevailing party?
¶56 With this Court’s determination of the issues herein, we also conclude that the District Court correctly concluded that Lyons, and not Weimar, was the prevailing party. Thus, Weimar is not entitled to his costs and attorney fees.
¶57 Affirmed in part, reversed in part, and remanded for entry of judgment consistent herewith.
JUSTICES COTTER, WARNER, MORRIS and LEAPHART concur.
Although owned by Weimar at the time of the events giving rise to this dispute, Weimar Investments Limited Partnership was, at the time of the trial, the owner of the subject real property in Lake County, Montana, to-wit: the S½SW¼SW¼ of Section 32, Township 24 North, Range 21 West, P.M.M., Lake County, Montana, Reference Certificate of Survey No. 3034.
Now known as a “construction lien.” See § 71-3-521 et seq., MCA.
Including, according to the General Comments, an entity “whose certificate has been revoked by the state.”
Section 28-2-2107, MCA, provides: “The provisions of this part do not apply to residential projects or improvements to real property intended for residential purposes with a total cost of less than $400,000.”
Section 28-2-2104(1), MCA, provides: “If a periodic or final payment that is required by a construction contract to be paid by an owner to a contractor is delayed by more than 30 days from the date the payment is required by the contract to be made, the owner shall pay to the contractor interest... at the rate of 1.5% a month . ...”
No argument is made that this statute is inapplicable because the agreement here included oral components.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Citizens of Great Falls, Montana (Protestors), appeal from an order of the Montana Eighth Judicial District Court, Cascade County, affirming a decision of the Montana Department of Revenue (Department) to approve an application for the transfer of ownership and location of an all-alcoholic beverages license to Hare’s Ear, Inc. (Hare’s Ear), under the trade name of Jackrabbit Red’s Casino located in the Flying J Travel Plaza (Flying J), in Great Falls, Cascade County, Montana. We affirm.
¶2 The issues on appeal are as follows:
1. Whether the Department is a proper party on appeal; and
2. Whether the District Court erred in affirming the Department’s approval of Hare’s Ear’s application for transfer of ownership and location of the liquor license.
BACKGROUND
¶3 Hare’s Ear, a Montana close corporation, filed an application with the Department for the transfer of ownership and location of All-Alcoholic Beverages License No. 02-401-1287-001. Hare’s Ear planned to obtain the license, formerly in public use at the Plum Crazy Casino in Great Falls, Montana, and use it at a Jackrabbit Red’s Casino to be located on the premises of the Flying J in Great Falls, situated next to Interstate 15 at the 31st Street Southwest interchange. The lease for the bar and casino space between Hare’s Ear and Flying J was contingent on Hare’s Ear obtaining the liquor license, and, subsequently, gambling machine permits.
¶4 The Department published a notice that Hare’s Ear had applied for transfer of ownership and location of the license to J ackrabbit Red’s Casino at the Flying J location. The Department received eighty-three letters of protest to the issuance of the license. Many of them were residents of the Gore Hill area in Great Falls, a subdivision located approximately a half mile south of the Flying J. The Department held a hearing where both sides presented witness testimony and exhibits. Because the intended use of the property was as a casino, and a liquor license is a prerequisite to obtaining gambling permits, much of the testimony from the protestors consisted of objections to gambling and its implications on the health and welfare of society. At the hearing, the Protestors argued that gambling would bring undesirable people into the community, and create a gambling addiction in the Gore Hill neighborhood. Several residents of the Gore Hill area voiced their concern about heavy traffic, impaired drivers, the safety of children bicycling or walking to the truck stop, negatively impacted real estate values, the area being off regular police beats, zoning restrictions, and little or no evidence of demand. Some Protestors were opposed to gambling in general because of the toll they had seen compulsive gambling take on themselves or others they knew. A psychotherapist and a clinical psychologist testified about the negative impact gambling presents to the health and welfare of society. A medical doctor with familiarity of gambling addiction testified that, while not opposed to gambling, she supported creating zoning districts to confine gambling to specified areas so that gambling addicts could be counseled to avoid those areas. The Department issued its decision, which included findings of fact, conclusions of law, order, and opinion, approving the application for the transfer of ownership and location of the license.
¶5 The Protestors appealed to the District Court pursuant to the Montana Administrative Procedure Act (MAPA). The Department appeared in the appeal to the District Court and participated in briefing. A hearing was held where for the first time, the Protestors objected to the Department being included as a party. The court allowed the Department to argue at the hearing in support of its decision to issue the license. The District Court affirmed the Department’s decision. The Protestors appeal.
STANDARD OF REVIEW
¶6 The standard of review of an administrative decision under MAPA applies to both the District Court’s review of the administrative decision and this Court’s subsequent review of the District Court’s decision. Hofer v. Montana DPHHS, 2005 MT 302, ¶ 14, 329 Mont. 368, ¶ 14, 124 P.3d 1098, ¶ 14. The applicable standard of review is as follows:
The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ....
Section 2-4-704(2), MCA. A finding is clearly erroneous if a review of the record shows the findings are not supported by substantial evidence, the trier of fact misapprehended the effect of the evidence, or if a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Munn v. Montana Bd. of Medical Examiners, 2005 MT 303, ¶ 15, 329 Mont. 401, ¶ 15, 124 P.3d 1123, ¶ 15 (citations omitted). We review a District Court’s conclusions of law by determining whether the District Court correctly interpreted the law. Munn, ¶ 15 (citations omitted).
DISCUSSION
¶7 ISSUE 1: Was the Department a proper party on appeal?
¶8 The Protestors filed a petition for review of the Department’s order allowing the transfer of the license to Hare’s Ear. The Department appeared in the action by filing a motion to set a briefing schedule and a brief in opposition to the petition, defending its decision to issue a license. The Protestors filed a reply, but did not object to the Department’s presence as a party until the hearing before the District Court. After listening to the objection, the District Court allowed the Department to present its argument on the merits. The Protestors again argue on appeal to this Court that the Department was not a proper party to the action in District Court.
¶9 The District Court’s review of the Department’s decision was confined to the record, as required by § 2-4-704(1), MCA. Hare’s Ear and the Department made similar arguments opposing the petition for review to the District Court and on appeal to this Court. Even assuming arguendo that the Department was not a proper party to this action, since the District Court could have come to the same conclusion based solely on Hare’s Ear’s arguments and on its thorough review of the record, any reliance by the District Court on the Department’s arguments constitutes harmless error. M. R. Civ. P. 61; see Ekalaka Un. Bd. of Trus. v. Ekalaka Teach., 2006 MT 337, ¶ 22, 335 Mont. 149, ¶ 22, 149 P.3d 902, ¶ 22.
¶10 ISSUE 2: Did the District Court err in affirming the Department’s approval of Hare’s Ear’s application for transfer of ownership and location of the liquor license?
¶11 An applicant seeking a liquor license must apply to the Department, and following an investigation carried out by the Montana Department of Justice, the Department of Revenue must determine whether the applicant is qualified to receive a license, the premises are suitable for the business, and that all laws and regulations are complied with. Section 16-4-402(1) and (2)(a), MCA. Before issuing the license, the Department must publish a notice of the license application in a newspaper of general circulation. Section 16-4-207, MCA. If the Department receives a certain number of written protests, the Department must hold a public hearing to determine whether the applicant is qualified and whether the application satisfies the requirements for public convenience and necessity. Section 16-4-207(3) and (4)(b), MCA. Section 16-4-405, MCA, provides that the Department has grounds to deny an application for a liquor license if any of the following criteria are met: (1) if the premises proposed for licensing are off regular police beats and cannot be properly policed by local authorities; (2) city or county zoning ordinances prohibit a license from being issued at the proposed premises; (3) the welfare of the people residing in the vicinity of the premises will be adversely and seriously affected; (4) there is not a public convenience and necessity justification; (5) a possible reason for denial listed in a conditional approval letter has been verified; or (6) the purposes of the licensing code would not be carried out if a license were issued.
¶12 In this case, the Department published a notice that Hare’s Ear had applied for transfer of ownership and location of the liquor license. The Department received eighty-three letters of protest to the proposed transfer, a sufficient number to necessitate a hearing for the determination of public convenience and necessity. The Department therefore held a hearing in Great Falls, as required by § 16-4-207, MCA. The Department considered each component of public convenience and necessity and found that Hare’s Ear met the criteria.
¶13 The Department also looked at the other disqualifying factors under § 16-4-405, MCA. Based on the evidence offered at the hearing, it found that the proposed premises was not off regular police beats, was not situated in a zoned area where the sale of alcoholic beverages is prohibited by ordinance, residents or other retail licensees located in the vicinity would not be adversely and seriously affected, the applicant and premises complied -with eligibility or suitability criteria provided by code, and that the purposes of the licensing code would be carried out if a license was issued. The Department considered these factors, weighed the evidence, and then made a determination that the liquor license should be issued because all laws were complied with and there was no reason to deny the license. The Department noted that there was nothing unique about the specific location that presented a dangerous, inappropriate, or otherwise unsuitable situation. Further, it noted that the policy arguments that the Protesters made with regard to gambling would be more appropriately brought up in the legislature and with the city or zoning commission.
¶14 The Protestors are appealing the Department’s conclusion that transferring the liquor license to Hare’s Ear would not adversely or seriously affect the welfare of residents in the vicinity. They contend that the transfer of the liquor license, which would then lead to the issuance of gambling machine permits, would indeed adversely and seriously affect the welfare of Gore Hill residents. They argue that the Department misapprehended the effect of the evidence provided by the residents, a clinical psychologist, psychiatrist, and medical doctor that gambling is bad for a community. The Protestors urge this Court that the transfer of the liquor license should not have been approved.
¶15 The Protestors’ arguments in opposition to the liquor license and gambling raise very broad policy-type concerns. They argue that gambling can be addictive and lead to criminal behavior for some individuals, gambling should not be legal, or gambling should be restricted to certain areas of Great Falls. As the Department indicated, these arguments are better left to the legislature, which has chosen to legalize gambling. The most specific objection to the Jackrabbit Red’s Casino was that, given its very busy, visible location, it would draw people in and the residents of Gore Hill, when driving by, would encounter dazed gamblers. Nonetheless, the Protestors failed to provide substantial evidence that demonstrated how Jackrabbit Red’s Casino, located at least a half mile from the nearest home, would adversely affect the residents in the vicinity.
¶16 A review of the record shows that there is substantial evidence to support the Department’s findings and that it did not misapprehend the effect of the evidence. Further, we are not left with a definite or firm conviction that a mistake has been committed. Hare’s Ear and the Department have demonstrated compliance with all laws with regard to the transfer of the liquor license, and there is no substantial evidence that would require that the Department deny the license.
¶17 We affirm the judgment of the District Court affirming the Department’s approval of Hare’s Ear’s application for transfer of ownership and location of Montana All-Alcoholic Beverages License No. 02-401-1287-001.
JUSTICES NELSON, COTTER, WARNER and RICE concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Appellant Casey Cech (Cech) appeals from the order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to dismiss on grounds of double jeopardy. We reverse.
¶2 We consider the following issue on appeal:
¶3 Did the District Court err by ruling that Cech’s conviction of possession of stolen property in Washington did not bar a subsequent prosecution for theft of the property in Montana?
BACKGROUND
¶4 On October 15,2004, Cech test-drove a silver 2001 Honda Accord, reportedly valued at $25,000, belonging to SFE Auto Sales (SFE) of Corvallis, Montana. Cech failed to return the vehicle, and SFE reported the theft. On October 17, 2004, the Ravalli County Sheriffs Office learned from the Grant County Sheriffs Office in Ephrata, Washington, that the stolen vehicle had been recovered and that Cech, who was driving the vehicle, had been arrested and charged under Washington law.
¶5 On January 18, 2005, Cech was convicted in Washington of assault in the third degree, attempting to elude pursuing police vehicle, and, with regard to the stolen Honda, possessing stolen property in the first degree. Cech was sentenced to sixteen months in jail in Grant County, Washington. On June 28, 2005, Cech was charged by information in the Twenty-First Judicial District Court, Ravalli County, with felony theft in violation of § 45-6-301, MCA. The information alleged Cech “purposely or knowingly obtained or exerted unauthorized control over a vehicle belonging to SFE Auto Sales ....” At his initial appearance on July 20, 2005, Cech entered a plea of not guilty.
¶6 On August 29,2005, Cech filed a motion to dismiss on grounds of double jeopardy, which the District Court denied. Thereafter, Cech changed his plea to guilty pursuant to a plea bargain agreement which did not reserve, under § 46-12-204(3), MCA, Cech’s right to appeal the double jeopardy issue. Cech was sentenced to serve ten years in the Montana State Prison. He appeals.
STANDARD OF REVIEW
¶7 A district court’s denial of a defendant’s motion to dismiss a charge on the basis of double jeopardy presents a question of law that this Court reviews for correctness. State v. Beavers, 1999 MT 260, ¶ 21, 296 Mont. 340, ¶ 21, 987 P.2d 371, ¶ 21.
DISCUSSION
¶8 Did the District Court err by ruling that Cech’s conviction of possession of stolen property in Washington did not bar a subsequent prosecution for theft of the property in Montana?
¶9 As a preliminary matter, Cech offers that his appeal is properly before this Court even though he did not reserve this issue for appeal when he entered his guilty plea because, while a voluntary guilty plea usually constitutes a waiver of non-jurisdictional defects and defenses that occurred prior to the plea, the issue he raises is a jurisdictional one which cannot be waived, citing Hagan v. State, 265 Mont. 31, 873 P.2d 1385 (1994). In Hagan, we stated that “[i]t is well established that a plea of guilty which is voluntary and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea.” Hagan, 265 Mont. at 35, 873 P.2d at 1387. We further explained that the jurisdictional grounds exception applies to “those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record.” Hagan, 265 Mont. at 36, 873 P.2d at 1388 (quoting U.S. v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992).
¶10 Applying this standard to a double jeopardy issue in Stilson v. State, 278 Mont. 20, 924 P.2d 238 (1996), which had not been raised prior to Stilson’s guilty plea, we reasoned as follows:
[W]e conclude that at the time the Eighth Judicial District Court accepted Stilson’s guilty plea the record before it contained his two prior convictions and was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against placing a person twice in jeopardy. We conclude that Stilson has not waived his double jeopardy claim and therefore proceed to address the merits of his claim.
Stilson, 278 Mont. at 22-23, 924 P.2d at 239. The State offers no substantive argument on this issue, and we note that, when Cech pled guilty, the District Court had before it a copy of the pre-sentence investigation report prepared for Cech’s previous sentencing in Washington State. As in Stilson, the record before the District Court at the time it accepted Cech’s guilty plea was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against double jeopardy. We therefore conclude that Cech has not waived his double jeopardy claim and that it is properly before the Court.
¶11 Cech argues that the District Court’s order should be reversed because Cech’s prosecution for theft in Montana was barred on double jeopardy grounds as a result of his conviction for possession of stolen property in Washington. Cech contends that his prosecution was barred under (1) Montana’s double jeopardy statute, § 46-11-504, MCA; (2) the double jeopardy clause of the Fifth Amendment to the United States Constitution, because the theft offense has the same elements as the Washington possession of stolen property offense, thus satisfying the elements test set out in Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180 (1932); and (3) Article II, Section 25, of the Montana Constitution.
¶12 The State responds that its prosecution of theft of the vehicle was not precluded by Washington’s previous prosecution under any of Cech’s three theories because (1) Cech cannot establish elements one and three of the Montana statute’s double jeopardy test as set forth in State v. Tadewaldt, 277 Mont. 261, 264, 922 P.2d 463, 465 (1996); (2) under the dual sovereignty doctrine as defined by the United States Supreme Court, Cech committed two distinct offenses when he stole a vehicle in Montana and then possessed that vehicle in Washington; and (3) Cech was not subjected to the multiple prosecutions for the same offense which is prohibited under the Montana Constitution. Because we conclude that Cech’s first argument, under Montana statute, is meritorious, we do not reach the second and third arguments.
¶13 Section 46-11-504(1), MCA, provides:
Former prosecution in another jurisdiction. When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction....
We have noted that this statute provides criminal defendants with greater protection against double jeopardy than under the United States Supreme Court’s application of the federal constitutional prohibition in Blockburger, 284 U.S. 299, 52 S. Ct. 180. Tadewaldt, 277 Mont. at 268, 922 P.2d at 467; State v. Sword, 229 Mont. 370, 747 P.2d 206 (1987). In Tadewaldt, this Court deduced a three-part test from the statute to determine whether a subsequent prosecution is barred, setting forth the factors as follows:
(1) a defendant’s conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued;
(2) the first prosecution resulted in an acquittal or a conviction; and
(3) the subsequent prosecution is based on an offense arising out of the same transaction [as that term is defined in § 46-1-202(23), MCA].
Tadewaldt, 277 Mont. at 264, 922 P.2d at 465. “Due to the conjunctive nature of the statute, all three factors must be met in order to bar subsequent prosecution.” State v. Gazda, 2003 MT 350, ¶ 12, 318 Mont. 516, ¶ 12, 82 P.3d 20, ¶ 12.
¶14 Washington charged Cech, with regard to the Honda, with possession of stolen property in the first degree in violation of R.C.W. § 9A.56.150. That statute provides that “[a] person is guilty of possessing stolen property in the first degree if he or she possesses stolen property ... which exceeds one thousand five hundred dollars in value.” R.C.W. § 9A.56.150.
“Possessing stolen property” means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.
R.C.W. § 9A.56.140. “ ‘Stolen’ means obtained by theft, robbery, or extortion[.]” R.C.W. § 9A.56.010(14). In turn, “theft” means “[t]o wrongfully obtain or exert unauthorized control over the property or services of another ... with intent to deprive him or her of such property or services....” R.C.W. § 9A.56.020(l)(a).
¶15 Montana subsequently charged Cech with theft, in violation of § 45-6-301(1), MCA, which provides in relevant part:
Theft. (1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the property;
(b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property ....
“Obtains or exerts control” includes “the taking, the carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.” Section 45-2-101(46), MCA.
¶16 Applying the three-factor Tadewaldt test, the District Court determined that Cech’s claim failed under the first factor because there was not concurrent jurisdiction over Cech’s conduct:
Clearly, the offenses are not the same, nor is possession of property an element of Theft under Mont. Code Ann. § 45-2-301(1). The State of Washington did not have the authority to prosecute Cech for the same offense he was charged with in Montana because no taking, carrying away, or sale, conveyance, or transfer of property is alleged to have occurred in the State of Washington. Therefore, concurrent jurisdiction fails because Montana and Washington courts lacked authority to prosecute equivalent offenses based on the same underlying conduct. [Citation omitted.] Cech, therefore, fails to satisfy the first factor of the three-part test which must be met in order to bar prosecution on the basis of double jeopardy. Because all three factors have to be met in order to bar the subsequent prosecution, the Court need not consider the remaining factors.
¶17 We must disagree with the District Court’s conclusion under the first Tadewaldt factor. We have previously held this factor is satisfied when both jurisdictions have authority to prosecute for the same offense. Sword, 229 Mont. at 373, 747 P.2d at 208. We have further explained that in order to demonstrate that jurisdiction existed in both courts, the defendant must establish that the same conduct subjected him to the “equivalent offense” in each jurisdiction. Gazda, ¶ 14.
¶18 Cech was not charged with the identical offense in both states, but it was not necessary, for purposes of the first factor, that he was actually charged with identical or equivalent offenses, only that his conduct at issue constituted an equivalent offense in both jurisdictions. The Washington charge was founded upon his unlawful possession of the same vehicle he was charged with stealing in Montana, following his driving of that vehicle to Washington, which charge alleged, pursuant to the elements and definitions set forth above, that Cech had “exerted unauthorized control over property of another . . . with intent to deprive” the owner of such property in Washington. In addition to that charge, Washington also had the authority under its statutes to charge Cech with the offense of “Theft in the first degree” for “wrongfully obtaining] or exert[ing] unauthorized control over the property or services of another ... with intent to deprive him or her of such property or services....” R.C.W. §§ 9A.56.030 and 9A.56.020(l)(a). Similarly, Montana had the authority to charge, and did charge, Cech with theft of the vehicle under § 45-6-301, MCA, alleging he had “knowingly obtain[ed] or exert[ed] unauthorized control over property of the owner” with “the purpose of depriving the owner of the property.” While, as the District Court pointed out, the elements of the charges actually brought in Washington and Montana may not have been identical, nonetheless it is our conclusion that Cech’s conduct had subjected him to “equivalent offenses” in both jurisdictions and thus satisfied the first Tadewaldt factor. The second factor is satisfied as well, since Cech was convicted of possession of stolen property in the State of Washington.
¶19 The third factor requires the subsequent prosecution of an offense arising out of the “same transaction” as the first prosecution. “Same transaction” is defined as “conduct consisting of a series of acts or omissions that are motivated by: (a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective ....” Section 46-1-202(23), MCA. Offenses arise from the same transaction when “a defendant’s underlying conduct of each prosecution is motivated by a purpose to accomplish the same criminal objective.” Gazda, ¶ 20 (citing Sword, 229 Mont. at 374, 747 P.2d at 208-09).
¶20 In Sword, the United States charged the defendant with violating the Endangered Species Act of 1973 when he killed a bear in an area where bear hunting was not permitted. The defendant later pled guilty. Subsequently, the State of Montana charged him for making false statements on his application for a trophy license to transport the bear. After considering Sword’s conduct that served as the basis of his federal charge-“possessing, carrying, and transporting of a bear taken unlawfully”-we concluded that his state charge arose out of the same transaction:
The trophy license authorized him to possess and transport the trophy. Thus, his false statements as well as his other acts were motivated and necessary or at least incidental to the accomplishment of the criminal objective of possessing, carrying, and transporting of a grizzly bear taken unlawfully. Clearly the Montana prosecution is based on an offense arising out of the same transaction....
Sword, 229 Mont. at 374, 747 P.2d at 209. Therefore, Sword’s conduct fell within the definition of “same transaction,” and double jeopardy barred the State from prosecuting Sword subsequent to the federal conviction. Sword, 229 Mont. at 374, 747 P.2d at 209.
¶21 Cech also relies on State v. Hernandez, 213 Mont. 221, 689 P.2d 1261 (1984). In Hernandez, the defendant was convicted of burglary and theft of coins from a residence. While on probation, the defendant sold some of these same coins. He was then charged with violation of § 45-6-30l(3)(b), MCA, for receiving stolen property. This Court held that the two convictions-the initial theft and the later sale of stolen property-“clearly arose from the same transaction” because the convictions stemmed from the same initial taking of the coins and, consequently, the second prosecution was barred by the prior conviction. Hernandez, 213 Mont. at 223, 689 P.2d at 1262.
¶22 We reach the same conclusion here. Cech’s underlying conduct which served as a basis for both prosecutions sought to accomplish the same criminal objective-control of the stolen vehicle-leading to the filing of analogous charges directed at such conduct in both states. Cech could not have been charged with possession of the stolen vehicle in Washington had he not first stolen the Honda in Montana and taken it to Washington. Cech’s asserted motivation, that of “knowingly ... withhold[ing] or appropriate[ing]” the Honda “to the use of any person other than the true owner or person entitled thereto,” R.C.W. § 9A.56.140, or of “depriving the owner of the property’ under § 45-6-301(l)(a), MCA, was the same. Thus, these charges arose out of the same transaction.
¶23 We conclude that all three Tadewaldt factors are met, and that § 46-11-504, MCA, therefore bars the subsequent prosecution for theft in Montana. The decision of the District Court is reversed and this matter is remanded for dismissal of the charge.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART and WARNER concur.
We acknowledge the alternative analysis under the first factor offered by the concurrence, but decline to adopt it.
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶ 1 This is an appeal by Essex Insurance Company (“Essex”) from two orders and the final judgment of the District Court for the Eleventh Judicial District, Flathead County. We reverse.
¶2 The dispositive issue on appeal is whether the District Court abused its discretion in granting the M. R. Civ. P. 60(b)(6) motion filed by Moose’s Saloon (“Moose’s”) and Clark Vogt (“Vogt”). We therefore do not address the other two issues raised by Essex, which pertain to rulings by the District Court after it granted the Rule 60(b)(6) motion.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On June 17, 1994, an altercation occurred between Mark Yarde (‘Yarde”), Vogt, and Dana Severy (“Severy”) at Moose’s. According to Yarde’s version of the events, Vogt (an employee of Moose’s) was removing him from the bar on the night in question. On their way out, Vogt grabbed Yarde around the neck, shoved Yarde against the wall, and then both men fell onto the ground. Vogt stood up and then proceeded to break Yarde’s leg by stomping on it. According to Vogt, however, as he escorted Yarde out of the bar, Yarde got into a fight with Severy (a bar patron of Moose’s), who was standing nearby. When Vogt separated the two, Yarde grabbed for Vogt’s throat, at which point Vogt pushed Yarde down onto the ground.
¶4 On April 11, 1995, Yarde filed a personal injury lawsuit against Moose’s, Vogt, and Severy. In his complaint, Yarde alleged that Severy and Vogt, while in the scope and course of his employment with Moose’s, “negligently injured” Yarde in the bar fight. He also alleged that Moose’s was negligent in its hiring and supervision of Vogt. Pursuant to Moose’s insurance policy, Essex agreed to investigate and provide Moose’s and Vogt with a defense in Yarde’s suit; however, Essex reserved its right to deny coverage if any exclusions in the policy applied. During the course of its investigation, Essex learned that Yarde had given a witness statement to the Kalispell Police Department stating that Vogt had committed assault and battery on him.
¶5 On May 21, 1996, Essex filed a complaint for a declaratory judgment in the District Court, naming Moose’s, Vogt, and John Doe (who was later identified as Severy) as defendants. Essex sought a declaration that, pursuant to the insurance policy, Essex had neither a duty to defend nor a duty to indemnify Moose’s and Vogt with regard to the claims asserted by Yarde in the personal injury lawsuit. The basis for Essex’s complaint was that the insurance policy contained a number of applicable exclusions. First, according to Essex, the incident involving Yarde, Vogt, and Severy was not an “accident” or “occurrence” as those terms were defined in the policy. Second, the policy contained an express exclusion of coverage for damages resulting from an assault and battery or for any act or omission in connection with the prevention or suppression of an assault and battery, whether instigated or caused by Moose’s, an employee of Moose’s, or a patron. Lastly, the policy contained an express exclusion for coverage of any claims arising out of charges or allegations of negligent hiring, placement, training, or supervision.
¶6 Essex moved for summary judgment on September 10, 1996, on the grounds that “there is no coverage, no duty to defend and no indemnity obligation because of the occurrence language of the policy, because of the assault and battery exclusion of the policy and because of the hiring/supervision exclusion of the policy.” Although Yarde had alleged negligence in the personal injury lawsuit, Essex maintained that Yarde was “factually claiming assault and battery.” Additionally, Essex maintained that, for the purposes of its motion for summary judgment, it did not matter whose version of the incident (Yarde’s or Vogt’s) was true. According to Essex, “[i]n either version of the facts, there was an assault.”
¶7 Moose’s argued in response that the depositions of Y arde and Vogt created material issues of fact regarding the altercation between the two of them. Moose’s maintained that it was unclear whether there was an “intentional act” by Vogt or simply an accidental fall during the course of the altercation between Yarde and Severy. Therefore, according to Moose’s, summary judgment was not appropriate.
¶8 The District Court disagreed and, on April 23, 1997, granted Essex’s motion. The court determined that there were no issues of material fact as to the acts in question, noting that “either Vogt assaulted Yarde, Yarde assaulted Vogt, or Severy and Yarde assaulted each other and Vogt tried to suppress it, or some combination of all three events occurred.” The court further determined that the assault and battery exclusion “excludes the types of acts at issue in the underlying matter of Yarde v. Moose’s Saloon, Inc., et al.” Finally, the court concluded that the “accident” and “occurrence” exclusion and the negligent hiring and supervision exclusion also applied. Thus, the court declared that “Essex Insurance Company has neither a duty to defend nor a duty to indemnify Moose’s Saloon, Inc., or any of its employees, including Vogt, or any unnamed John Doe, with regard to any of the claims asserted by Mark Yarde.” Significantly, Moose’s, Vogt, and Severy did not appeal from the District Court’s order granting summary judgment in favor of Essex.
¶9 Yarde’s personal injury lawsuit ultimately went to trial and, on February 12,1999, the jury returned a verdict against Moose’s, Vogt, and Severy. On the special verdict form, the jury determined that Moose’s, Vogt, and Severy were all negligent and that they were each a cause of Yarde’s injury. The jury also determined that Vogt had assaulted or battered Yarde and that Vogt had acted with malice. The District Court thereafter entered judgment in favor of Yarde in the sum of $159,500.
¶10 On January 12, 2000-nine months after the District Court had entered judgment in favor of Yarde in the personal injury lawsuit and approaching three years after the District Court had granted Essex’s motion for summary judgment in the declaratory judgment action-Moose’s and Vogt filed a motion pursuant to M. R. Civ. P. 60(b)(6) for relief from the District Court’s judgment in the declaratory judgment action. They noted that in that action, the District Court had “held that Vogt’s acts were intentional and that the facts surrounding his altercation with Yarde did not support a theory of negligence”; yet, in the personal injury lawsuit, the District Court had “entered judgment on the verdict finding [Moose’s and Vogt] negligent.” According to Moose’s and Vogt, this created “an inconsistency or irregularity in the proceedings” which “prevented an accurate determination on the merits thereby prejudicing [them].” Specifically, they explained that “despite having been found ‘negligent’ by a 12-person jury, [Moose’s and Vogt] are not entitled to indemnification by Essex for Vogt’s negligent acts because those same acts were deemed ‘intentional’ in the declaratory judgment action.” Therefore, they asked the District Court to reopen the declaratory judgment action and “re-determine the issue of insurance policy coverage.”
¶11 In response, Essex argued, among other things, that Moose’s and Vogt’s motion must fail on the merits because Moose’s and Vogt had failed to establish that the circumstances of the case were so extraordinary as to warrant relief under Rule 60(b)(6). In this regard, Essex noted that Moose’s and Vogt had not appealed the District Court’s order granting summary judgment in the declaratory judgment action and that Rule 60(b)(6) is not to be used as a substitute for appeal.
¶12 The District Court, however, disagreed and, on February 18,2000, granted the Rule 60(b)(6) motion. The court opined that “the grounds for appealing the declaratory judgment action did not arise until judgment was rendered in the personal injury action. Thus, it cannot be said that [Moose’s and Vogt] had an opportunity to appeal the declaratory judgment action but voluntarily chose to forego an appeal.” The District Court also stated that Moose’s and Vogt had “demonstrated that an inconsistency or irregularity in the proceedings prevented an accurate determination on the merits thereby prejudicing them.” Therefore, the court concluded that it was “only fair and equitable to allow [Moose’s and Vogt] to reopen the declaratory judgment action and seek a redetermination of insurance coverage.” Essex filed a motion for reconsideration, which the District Court denied.
¶13 The parties thereafter filed cross-motions for summary judgment. Moose’s and Vogt argued that none of the policy exclusions applied and that Essex, therefore, had a duty to defend and indemnify them “for damages paid and expenses incurred in connection with the personal injury action brought by Yarde.” They requested that the District Court order Essex to do so. For its part, Essex argued that “under every conceivable theory upon which the jury could hold Moose’s Saloon liable in the underlying action, no coverage exists under the Essex policy.” They noted that although the jury had found Moose’s, Vogt, and Severy negligent, the jury had also found that Vogt assaulted and battered Yarde.
¶14 On March 17,2004, the District Court granted Moose’s and Vogt’s motion for summary judgment and denied Essex’s motion for summary judgment. The court determined that the events which gave rise to Yarde’s lawsuit against Moose’s and Vogt “meet the definition of ‘occurrence’ for purposes of insurance coverage” and that “the results [of Vogt’s actions toward Yarde] were not expected nor planned.” Thus, the court concluded that the “accident” and “occurrence” exclusion did not apply. The District Court also addressed the assault and battery exclusion, concluding that the exclusion was “ambiguous” in light of the jury’s findings that Vogt had been negligent on the one hand and had committed an assault and battery on the other hand. The court concluded that it must therefore “reverse its prior ruling and hold that the policy must be interpreted to provide insurance coverage.” The court accordingly held that “Essex is required to indemnify its insured.”
¶15 The District Court entered final judgment on October 20, 2004, awarding Moose’s reimbursement for the judgment it had paid out to Yarde, as well as attorney’s fees and costs incurred in defending itself in Yarde’s personal injury lawsuit and in the redetermination of insurance coverage. Essex now appeals from the Order and Rationale on Motion for Relief from Judgment, the Order and Rationale on Cross-Motions for Summary Judgment, and the final Judgment and Rationale.
STANDARD OF REVIEW
¶16 Our standard of review of a district court’s ruling on a motion pursuant to M. R. Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding from which relief is sought and the specific basis of the Rule 60(b) motion. See In re Marriage of Barnes, 251 Mont. 334, 336, 825 P.2d 201, 203 (1992) (“The scope of our review of a decision to grant or deny a Rule 60(b) motion depends on the issues involved.”). As a general rule, the district court’s ruling is reviewed for abuse of discretion. See Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont. 178, ¶ 7, 53 P.3d 1259, ¶ 7; Hall v. Heckerman, 2000 MT 300, ¶ 12, 302 Mont. 345, ¶ 12, 15 P.3d 869, ¶ 12; see also Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1469 (9th Cir. 1995) (“Ordinarily, motions for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b) are addressed to the sound discretion of the district court and will not be reversed absent some abuse of discretion.”). But where, for instance, the movant sought relief under subsection (2) of Rule 60(b) based on newly discovered evidence, we have stated that we will review the district court’s ruling for manifest abuse of discretion. See Fjelstad v. State, Through Dept. of Highways, 267 Mont. 211, 220, 883 P.2d 106, 111 (1994). By contrast, where the movant sought relief under subsection (4) of Rule 60(b) on the ground that the judgment is void, the standard of review is de novo, since the determination that a judgment is or is not void is a conclusion of law. Export Group, 54 F.3d at 1469 (“We review de novo ... a district court’s ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one.”); see also Hicklin v. CSC Logic, Inc., 283 Mont. 298, 301, 940 P.2d 447, 449 (1997).
¶17 Another exception to the general rule applies in cases where the movant sought relief from a default judgment. In Lords v. Newman, 212 Mont. 359, 688 P.2d 290 (1984), we set forth two standards of review with respect to such motions. We noted that while “courts are vested with a certain amount of discretion when they are considering a motion to set aside a default,” “every litigated case should be tried on the merits” and, thus, “judgments by default are not favored.” Lords, 212 Mont. at 363, 688 P.2d at 293. Accordingly, we held that when a trial court has granted a motion to set aside the default and opened up the action for a trial on the merits, the court’s ruling “will only be set aside upon a showing of manifest abuse”; but when the trial court has denied a motion to set aside the default, “no great abuse of discretion need be shown to warrant reversal” (i.e., “only ‘slight abuse’ is sufficient to reverse an order refusing to set aside a default”). Lords, 212 Mont. at 363-64, 688 P.2d at 293; accord Matthews v. Don K Chevrolet, 2005 MT 164, ¶ 9, 327 Mont. 456, ¶ 9, 115 P.3d 201, ¶ 9; Empire Lath & Plaster v. American Cas., 256 Mont. 413, 416, 847 P.2d 276, 278 (1993); Blume v. Metropolitan Life Ins. Co., 242 Mont. 465, 467, 791 P.2d 784, 785 (1990); cf. Skogen v. Murray, 2007 MT 104, ¶ 11, 337 Mont. 139, ¶ 11, 157 P.3d 1143, ¶ 11; Karlen v. Evans, 276 Mont. 181, 185, 915 P.2d 232, 235 (1996).
¶18 In the case at hand, Moose’s and Vogt’s Rule 60(b)(6) motion was directed at the District Court’s order in the declaratory judgment action granting summary judgment in favor of Essex, from which Moose’s and Vogt did not appeal. They did not contend that the order is void; thus, de novo review is not implicated here. Furthermore, the decision to reopen or not to reopen an unchallenged final order granting a motion for summary judgment does not implicate the policy considerations identified in Lords with respect to default judgments. Accordingly, we will review the District Comb’s ruling on Moose’s and Vogt’s Rule 60(b)(6) motion for abuse of discretion.
¶19 A district court abuses its discretion ifit “act[s] arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice.” Jarvenpaa v. Glacier Elec. Co-op., Inc., 1998 MT 306, ¶ 13, 292 Mont. 118, ¶ 13, 970 P.2d 84, ¶ 13 (citing C. Haydon Ltd. v. MT Min. Properties, Inc., 286 Mont. 138, 146, 951 P.2d 46, 51 (1997)).
DISCUSSION
¶20 Did the District Court abuse its discretion in granting Moose’s and Vogt’s M. R. Civ. P. 60(b)(6) motion?
¶21 M. R. Civ. P. 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Moose’s and Vogt’s motion was based on subsection (6) of Rule 60(b). Relief under this provision is appropriate only in extraordinary circumstances which go beyond those covered by the first five subsections of the rule. See e.g. Skogen v. Murray, 2007 MT 104, ¶ 13, 337 Mont. 139, ¶ 13, 157 P.3d 1143, ¶ 13; Falcon v. Faulkner, 273 Mont. 327, 333, 903 P.2d 197, 201 (1995). “Thus, before a party will be allowed to modify a final judgment under Rule 60(b)(6), he must first show that none of the other five reasons in Rule 60(b) apply.” In re Marriage of Waters, 223 Mont. 183, 187, 724 P.2d 726, 729 (1986).
¶22 Additionally, “[i]t is not the intent of Rule 60(b)(6) to be a substitute for appeal.” Lussy v. Dye, 215 Mont. 91, 93, 695 P.2d 465, 466 (1985). Furthermore, a motion for relief pursuant to Rule 60(b)(6) must contain “more than a request for rehearing or a request that the District Court change its mind.” Lussy, 215 Mont. at 93, 695 P.2d at 466. “It must be shown that something prevented a full presentation of the cause or an accurate determination on the merits and that for reasons of fairness and equity redress is justified.” Lussy, 215 Mont. at 93, 695 P.2d at 466; accord In re Marriage of Markegard, 2006 MT 111, ¶ 16, 332 Mont. 187, ¶ 16, 136 P.3d 532, ¶ 16.
¶23 Given these requirements, we conclude that the District Court abused its discretion in granting Moose’s and Vogt’s motion to reopen the declaratory judgment action. As stated in Waters, “before a party will be allowed to modify a final judgment under Rule 60(b)(6), he must first show that none of the other five reasons in Rule 60(b) apply.” Waters, 223 Mont. at 187, 724 P.2d at 729 (emphasis added). Moose’s and Vogt, however, have never argued at any point during the course of this case that none of the first five subsections of Rule 60(b) apply. For this reason alone, their Rule 60(b)(6) motion should have been denied.
¶24 Inexplicably, however, neither Essex nor the District Court addressed Moose’s and Vogt’s oversight. Rather, in responding to Moose’s and Vogt’s motion, Essex proceeded directly with an analysis of the merits of the motion, and the District Court followed suit. Therefore, notwithstanding the fact that Moose’s and Vogt were required by well-established caselaw to show, first, that that none of the other five reasons in Rule 60(b) apply, Waters, 223 Mont. at 187, 724 P.2d at 729, we will address the merits of their motion under subsection (6).
¶25 A successful Rule 60(b)(6) motion requires that the movant demonstrate each of the following elements: (1) extraordinary circumstances; (2) the movant acted to set aside the judgment within a reasonable period of time; and (3) the movant was blameless. In re Paternity of C.T.E.-H., 2004 MT 307, ¶ 45, 323 Mont. 498, ¶ 45, 101 P.3d 254, ¶ 45 (citing Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, ¶ 14, 10 P.3d 99, ¶ 14).
¶26 With respect to element (1), Essex argues that Moose’s and Vogt failed to establish that the circumstances of this case were so extraordinary as to warrant relief under Rule 60(b)(6). According to Essex, Moose’s and Vogt “had the opportunity, and were clearly entitled, to appeal the summary judgment determination which the district court rendered to Essex”; however, they did not do so. Thus, Moose’s and Vogt’s “ ‘voluntary, deliberate, free, [and] untrammeled choice’ ” not to appeal the District Court’s summary judgment determination establishes that the requisite extraordinary circumstances do not exist in this case (alteration in original) (quoting Ackermann v. United States, 340 U.S. 193, 200, 71 S. Ct. 209, 212 (1950)).
¶27 In response, Moose’s and Vogt reiterate that the District Court held in the declaratory judgment action that Essex had no duty to defend or indemnify them because Yarde’s injury occurred as the result of a non-accidental assault and battery, but the jury found in Yarde’s lawsuit that Moose’s, Vogt, and Severy were negligent. Moose’s and Vogt argue that these are “inconsistent judgments” that establish extraordinary circumstances for purposes of a Rule 60(b)(6) motion. Moose’s and Vogt also maintain that the “actual controversy’ between them and Essex in the declaratory judgment action was whether the exclusions in the policy precluded coverage for assault and battery, whereas the controversy after the jury verdict in the Yarde lawsuit “was whether there was coverage for negligence.” They argue that this distinction, in addition, “presented the requisite extraordinary circumstances to the trial court to reopen the declaratory judgment action under Rule 60(b)(6).”
¶28 We disagree. The circumstances of this case are not so extraordinary as to warrant relief from judgment under Rule 60(b)(6). The thrust of Moose’s and Vogt’s argument is that the District Court made an erroneous factual determination in the original declaratory judgment action-namely, that the altercation between Yarde, Vogt, and Severy involved an assault (“either Vogt assaulted Yarde, Yarde assaulted Vogt, or Severy and Yarde assaulted each other and Vogt tried to suppress it, or some combination of all three events occurred”). Moose’s and Vogt seek to challenge that factual determination by way of a Rule 60(b)(6) motion; in other words, it appears that they have invoked Rule 60(b)(6) either as a substitute for an appeal they wish they had taken from the District Court’s order granting summary judgment in favor of Essex in the original declaratory judgment action or as a request to the District Court that it simply make a different factual determination. These are improper uses of a Rule 60(b)(6) motion.
¶29 “Generally, failure to appeal for almost any reason is fatal to a motion to reopen judgment under Ríale 60(b). If allowed, it would in essence make a Rule 60(b) motion a substitute for appeal, which is an improper use of the motion.” Koch v. Billings School Dist. No. 2, 253 Mont. 261, 271, 833 P.2d 181, 187 (1992) (citing Donovan v. Graff, 248 Mont. 21, 25, 808 P.2d 491, 494 (1991)). In addition, as stated above, a Rule 60(b)(6) motion must contain “more than a request for rehearing or a request that the District Court change its mind. It must be shown that something prevented a full presentation of the cause or an accurate determination on the merits and that for reasons of fairness and equity redress is justified.” Lussy, 215 Mont. at 93, 695 P.2d at 466.
¶30 Moose’s and Vogt have not made such a showing. To the contrary, the record establishes that they had the opportunity to argue, and did argue, during the original declaratory judgment action that there were issues of fact as to whether the altercation between Yarde, Vogt, and Severy involved an assault and battery. Moose’s and Vogt have not shown that something prevented them from making a full presentation on this issue. Next, the District Court rejected Moose’s and Vogt’s argument. The court determined that there was, in fact, an assault, and, based on its interpretation of the insurance policy, the court determined that the assault and battery exclusion applied. Moose’s and Vogt have not shown that something prevented the court from making these determinations accurately. Moose’s and Vogt then had the opportunity to appeal the District Court’s determinations; they did not do so, and their suggestion that this opportunity did not arise until the jury found negligence on the part of Moose’s, Vogt, and Severy is without merit. Simply stated, they did not appeal the District Court’s determinations, and they may not use Rule 60(b)(6) to remedy a decision which they now, apparently, regret.
¶31 As for Moose’s and Vogt’s contention that, following the jury’s verdict in Yarde’s lawsuit, the controversy “was whether there was coverage for negligence,” we note that they were fully aware that negligence was one of Yarde’s theories of recovery. Indeed, in their brief in opposition to Essex’s motion for summary judgment in the original declaratory judgment action, Moose’s and Vogt acknowledged that “[t]he factual situation resulting in the claim against Moose’s could in the final analysis of all factual matters involve either negligence and/or some other intentional act falling short of an assault and battery.” Thus, their claim that the controversy between them and Essex changed following the jury’s verdict is also without merit.
¶32 For the foregoing reasons, we conclude that Moose’s and Vogt have failed to satisfy the extraordinary circumstances requirement (element (1)) for a successful Rule 60(b)(6) motion. And the same is true of elements (2) and (3). Pursuant to element (2), the movant must demonstrate that he or she “acted to set aside the judgment within a reasonable period of time.” In re Paternity of C.T.E.-H., ¶ 45. “What is a reasonable time will depend on the particular facts of the individual case.” In re Marriage of Waters, 223 Mont. at 189, 724 P.2d at 730. Pursuant to element (3), the movant must demonstrate that it was blameless. In re Paternity of C.T.E.-H., ¶ 45.
¶33 Moose’s and Vogt have not explicitly addressed either of these elements at any point during the course of this case. Likewise, the District Court did not set forth an analysis of their motion with respect to elements (2) and (3). Rather, the court decided that Moose’s and Vogt had demonstrated that extraordinary circumstances exist in this case and, therefore, that “it is only fair and equitable to allow [them] to reopen the declaratory judgment action and seek a redetermination of insurance coverage.” This analysis, which omitted the requisite determinations that Moose’s and Vogt had acted to set aside the judgment within a reasonable period of time and were blameless, is insufficient. A party seeking relief from judgment pursuant to M. R. Civ. P. 60(b)(6) must demonstrate that its motion satisfies each of the three required elements; in other words, the elements are conjunctive, not disjunctive. Thus, a strong showing of extraordinary circumstances cannot supplant an analysis of timeliness and blamelessness.
¶34 In sum, Moose’s and Vogt have failed to satisfy any of the three elements of a successful Rule 60(b)(6) motion. Their Rule 60(b)(6) motion for relief from the District Court’s judgment in the original declaratory judgment action, therefore, fails on the merits and the District Court, accordingly, abused its discretion in granting that motion.
CONCLUSION
¶35 Moose’s and Vogt have not established that they are entitled to relief under M. R. Civ. P. 60(b)(6). Not only have they failed to address the first five subsections of the rule, as required by our caselaw, but their motion also fails on the merits, since they have failed to establish the existence of extraordinary circumstances, that their motion was timely, and that they were blameless. Accordingly, we hold that the District Court abused its discretion in granting Moose’s and Vogt’s Rule 60(b)(6) motion for relief from the court’s order granting summary judgment in favor of Essex in the original declaratory judgment action. We therefore vacate all orders entered by the District Court after it granted said motion.
¶36 Reversed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, WARNER and COTTER concur.
Severy did not join in Moose’s and Vogt’s Rule 60(b)(6) motion and is not a party to this appeal.
In In re Marriage of Zacher, 2004 MT 249, 323 Mont. 54, 98 P.3d 309, the appellant had filed a motion under Ride 60(b)(4), which was deemed denied by operation of law. Zacher, ¶ 5. We stated that our standard of review under these circumstances was abuse of discretion. See Zacher, ¶ 7; see also Bragg v. McLaughlin, 1999 MT 320, ¶¶ 11, 17, 24, 297 Mont. 282, ¶¶ 11, 17, 24, 993 P.2d 662, ¶¶ 11, 17, 24; Butler v. Colwell, 1998 MT 241, ¶¶ 13, 16, 291 Mont. 134, ¶¶ 13, 16, 967 P.2d 779, ¶¶ 13, 16. For the reasons discussed above, however, our review of a district court’s decision to set aside a void judgment is de novo. We therefore overrule ¶ 7 of Zacher, as well as ¶ 11 of Bragg and ¶ 13 of Butler, to the extent they suggest otherwise.
One or both of Lords’s dual standards have appeared in a number of cases not involving a motion for relief from a default judgment. See e.g. Wombold v. Assoc. Financial Services Co., 2004 MT 397, ¶ 31, 325 Mont. 290, ¶ 31, 104 P.3d 1080, ¶ 31; In re Marriage of Zacher, 2004 MT 249, ¶ 7, 323 Mont. 54, ¶ 7, 98 P.3d 309, ¶ 7; Calcaterra v. Montana Resources, 2001 MT 193, ¶ 7, 306 Mont. 249, ¶ 7, 32 P.3d 764, ¶ 7; Wright Oil & Tire Co. v. Goodrich, 284 Mont. 6, 10, 942 P.2d 128, 130 (1997). The Lords standards, however, are based on the policy considerations identified in that case with respect to default judgments and should not be applied universally. See Lords, 212 Mont. at 365-66, 688 P.2d at 294 (noting that there is no one set standard of review to be applied in all cases). We therefore overrule Wombold, ¶ 31, Zacher, ¶ 7, Calcaterra, ¶ 7, and Wright Oil & Tire, 284 Mont. at 10, 942 P.2d at 130, to the extent they state or suggest that the Lords standards apply to all Rule 60(b) motions.
In Peak Development, LLP v. Juntunen, 2005 MT 82, 326 Mont. 409, 110 P.3d 13, we stated that Rule 60(b)(6) was “inapplicable” because “gross neglect or actual misconduct by Juntuneris attorney are not issues here, as required under Rule 60(b)(6).” Peak Development, ¶ 17. Rule 60(b)(6), however, does not require gross neglect or actual misconduct on the part of the movant’s attorney in all cases. Rather, this requirement applies only in cases where the basis of the Rule 60(b)(6) motion is an alleged error by the movant’s attorney. See e.g. Skogen, ¶ 13; Bahm, ¶ 14. Thus, for clarification, we overrule ¶ 17 of Peak Development to the extent it suggests otherwise.
Given our holding here, it is unnecessary to address Essex’s alternative argument that the doctrine of res judicata bars Moose’s and Vogt from bringing their Rule 60(b)(6) motion.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Rogelio Ibarra-Salas (Ibarra-Salas) appeals from an order of the Eighteenth Judicial District Court, Gallatin County (District Court), denying his motion for a new trial. We affirm.
¶2 We restate and address the following issues on appeal:
¶3 1. Did the District Court err in not granting Ibarra-Salas’ motion to continue the trial?
¶4 2. Was Ibarra-Salas’ trial counsel ineffective because he did not question prospective jurors concerning ethnic bias or prejudice?
¶5 The State filed an Information charging Ibarra-Salas with criminal distribution of dangerous drugs, a felony, in violation of § 45-9-101, MCA. The State alleged that on November 12, 2003, IbarraSalas and a co-defendant, Dustin White (White), sold methamphetamine to White’s sister, who was a confidential informant.
¶6 The day before trial, trial counsel for Ibarra-Salas filed a motion for sanctions-either in the form of dismissal of the charge or a continuance of the trial. He claimed that despite numerous requests, the State failed to make two witnesses available for interviews.
¶7 The District Court held an immediate hearing on the motion. After hearing from counsel and other witnesses concerning the conduct of discovery, the District Court determined the witness interviews did not occur because of scheduling conflicts and miscommunication. The District Court found that the prosecution did not attempt to cause delay by avoiding meetings or hindering the disclosure of information and therefore denied Ibarra-Salas’ motion to dismiss the charge as a sanction.
¶8 Ibarra-Salas’ motion for continuance was based on his counsel’s alleged need to interview the two previously unavailable witnesses and to prepare for trial. After making sime the witnesses were available to be interviewed that day, the District Court denied Ibarra-Salas’ motion for a continuance.
¶9 In ruling on the motion, the District Court stated:
In regard to the continuance, I am also going to deny the continuance. This case has been set for trial for some time. And while I appreciate that you (defense counsel) have been very diligent in pursuing your discovery efforts, because we have had the numbers of hearings and the discovery requests, I am going a bit on faith that the information that you will receive from the two witnesses that you will presumably have available to you by this afternoon, will be cumulative or at least consistent with the information that you’ve previously been provided. If that does not turn out to be the case, then I would expect that you can document that, either by motion or through cross-examination testimony, through the trial.
The trial is currently scheduled for two days. I will be as flexible as we need to be to allow you extra time to prepare for the examination of either of those witnesses should you need extra time. And we will accommodate whatever other arrangements the Court can make to allow you to proceed with the case.
¶10 On the first day of trial, counsel for Ibarra-Salas renewed his request for a continuance based on insufficient time to prepare to conduct jury voir dire. The District Court stated it would stand by the rationale of its previous ruling and denied the motion.
¶11 Ibarra-Salas is of Hispanic descent. He had the assistance of a Spanish-English interpreter during the trial. During voir dire, counsel for both Ibarra-Salas and the State questioned the jury panel concerning its ability to be fair and impartial jurors in a drug trial. Neither party questioned prospective jurors about ethnic or racial bias during voir dire. Counsel for Ibarra-Salas was successful in challenging two prospective jurors for cause.
¶12 The jury found Ibarra-Salas guilty of Criminal Distribution of Dangerous Drugs in violation of § 45-9-101, MCA. Ibarra-Salas filed a motion for a new trial, which the District Court denied as untimely. After the entry of judgment, Ibarra-Salas appealed.
¶13 The decision to grant or deny a motion for a continuance is within the discretion of the district court. State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200, ¶ 24, 79 P.3d 817, ¶ 24; § 46-13-202(3), MCA. This Court will not overturn a district court’s decision to deny a motion for continuance unless the district court abused its discretion and the ruling prejudices the defendant. DeMary, ¶ 24. Ibarra-Salas argues the District Court abused its discretion when it denied his motions for a continuance.
¶14 Ibarra-Salas cites to nothing in the record to support his contention that his counsel was not prepared to conduct jury voir dire, or that he was unable to present any evidence or was unable to effectively cross-examine a witness because he was unprepared. Also, even though the District Court said that it would be inclined to grant a motion for a delay during the trial if Ibarra-Salas’ counsel needed more time, Ibarra-Salas did not move the District Court for additional time. We will not reverse an order of the District Court denying a motion for a continuance when a party fails to cite a portion of the record which indicates an abuse of discretion. M. R. App. P. 12(l)(f).
¶15 Ibarra-Salas also claims that the District Court erred because it did not recess the trial and conduct a separate hearing to determine if his lawyer was unprepared. He attempts to analogize his counsel’s request for a continuance to a situation in which a defendant claims ineffective assistance of counsel and requests new counsel. It is true that when a defendant presents a “seemingly substantial complaint” about counsel and requests a different lawyer, the Court should hold a hearing on the request for substitution of counsel. City of Billings v. Smith, 281 Mont. 133, 136, 932 P.2d 1058, 1060 (1997). However, Ibarra-Salas made no request for substitution of his trial counsel and thus no hearing was necessary.
¶16 Ibarra-Salas then argues that because he is a Hispanic person, and thus a member of a minority group, his counsel’s failure to question prospective jurors about ethnic or racial bias denied him both his constitutional right to an impartial jury and to the effective assistance of counsel.
¶17 A criminal defendant in a state court is guaranteed an impartial jury by the Sixth Amendment to the United States Constitution, as applicable to the States through the Fourteenth Amendment. A defendant is also guaranteed an impartial jury by Article II, Section 24 of the Montana Constitution. State v. LaMere, 2000 MT 45, ¶ 35, 298 Mont. 358, ¶ 35, 2 P.3d 204, ¶ 35; Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S. Ct. 1017, 1021 n. 6 (1976) (citations omitted). Voir dire in a criminal proceeding requires adequate questioning to assure counsel’s ability to challenge a prospective juror for cause. State v. LaMere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112 P.3d 1005, ¶ 15; State v. Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738, ¶ 23.
¶18 In the federal courts, there is no constitutional presumption of juror bias for or against members of any particular racial or ethnic group. See Rosales-Lopez v. United States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1636 (1981). Nor has this Court ever established such a presumption. We agree with the United States Supreme Court that in the heterogeneous society of this country, policy and constitutional considerations militate against a per se rule that justice “in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion.” Ristaino, 424 U.S. at 596 n. 8, 96 S. Ct. at 1021 n. 8.
¶19 In the federal court system, unlike Montana, judges rather than attorneys generally conduct voir dire examination. Fed. R. Civ. P. 47(a); Fed. R. Crim. P. 24(a); § 46-16-114, MCA. Federal trial courts must accede to a criminal defendant’s request that prospective jurors be questioned about racial or ethnic bias only when (1) racial issues are inextricably bound up with the conduct of the trial and (2) there are substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in the particular case. Ristaino, 424 U.S. at 596-97, 96 S. Ct. at 1021-22 (citing Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848 (1973)). The “critical factor” is whether racial issues are inextricably bound up with the conduct of the trial. Rosales-Lopez, 451 U.S. at 189, 101 S. Ct. at 1635 (1981); See Ham, 409 U.S. at 526, 93 S. Ct. at 850. These considerations comport with Article II, Section 24, of the Montana Constitution, are understandable and we shall utilize them in making the determination whether Ibarra-Salas was denied a fair trial by an impartial jury.
¶20 In the present case, there is no indication that any ethnic or racial issues were intertwined with the charged drug offense, that the alleged offense was racially motivated, or that an ethnic issue was in any way connected with the trial.
¶21 Also, Ibarra-Salas’ defense did not introduce any ethnic or racial issue into the trial. Ibarra-Salas’ counsel argued that his client was merely present in White’s apartment during the methamphetamine sale, that he had no involvement with the sale and that the drug deal was between White and White’s sister. The defense did not relate to any ethnic or racial issue, and was thus not likely to intensify any bias or prejudice that individual members of the jury might harbor. See Ristaino, 424 U.S. at 596-97, 96 S. Ct. at 1021.
¶22 There is no indication in the record of ethnic or racial bias on the part of a witness, an attorney, the trial judge, a member of the Court staff or any member of the venire panel. Ibarra-Salas was not denied his right to an impartial jury.
¶23 As there is no record of any ethnic or racial issue in the case, we conclude that defense counsel’s performance did not fall below the range of competence required of attorneys in criminal cases simply because he did not question prospective jurors about possible ethnic bias or prejudice. Thus, Ibarra-Salas was not denied the effective assistance of counsel. See LaMere, ¶ 8; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
¶24 Affirmed.
JUSTICES NELSON, LEAPHART, MORRIS and RICE concur.
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JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 John P. Stokes, Skyline Broadcaster, Inc., and Z-600, Inc. (collectively Stokes) appeal from the order of the First Judicial District Court, Lewis and Clark County, granting the State of Montana’s (State) cross-motion for summary judgment on Stokes’s claim for tortious interference with his easement. We affirm.
¶2 We review whether the District Court correctly granted the State’s motion for summary judgment based on its determination that Stokes had failed to present a prima facie case of tortious interference with his easement?
FACTUAL AND PROCEDURAL HISTORY
¶3 Stokes owns and operates a small radio station just off U.S. Highway 93, south of Kalispell. Stokes holds an easement across a part of Douglas Anderson’s (Anderson) adjoining property. A portion of Stokes’s radio facility sits on Anderson’s land. Anderson’s predecessor in interest granted the easement for the radio facility to the Stokes’s predecessor in interest in 1949. Neither Stokes nor any of his predecessors in interest have expanded the radio facility beyond its original location on Anderson’s land. The present dispute relates to a separate dispute between Stokes and Anderson regarding the scope of Stokes’s easement. Its resolution in Anderson’s favor was the subject of our decision in Anderson v. Stokes, 2007 MT 166, 338 Mont. 118, 163 P.3d 1273.
¶4 The State determined that it needed to obtain a right-of-way over a portion of Anderson’s property near U.S. Highway 93 as part of a highway improvement project. Susan J. Rebeck (Rebeck), acting on behalf of the State, contacted Anderson to inform him that some ambiguity existed regarding whether Stokes’s easement encumbered the property sought by the State. This ambiguity gave rise to two separate appraisals of the State’s proposed right-of-way over Anderson’s property. Rebeck explained that the State would pay Anderson $2,056.00 for the right-of-way if Stokes’s easement encumbered it based on its value for agricultural purposes. On the other hand, Rebeck explained that the State would pay Anderson $78,800.00 if Stokes’s easement did not encumber it based on its value for potential commercial development. Rebeck advised Anderson to consult a lawyer in order to determine whether Stokes’s easement encumbered the State’s proposed right-of-way.
¶5 Anderson retained a lawyer and filed an action on January 12, 2001, in the Eleventh Judicial District Court, Flathead County, asking the court either to extinguish Stokes’s easement or, alternatively, to declare that the scope of the easement always had been limited to its historic location. Anderson and the State entered an agreement on January 23, 2001, where the State stipulated that it would pay Anderson $2,056.00 for the right-of-way, but would pay Anderson an additional sum of $76,744.00 if he could show that Stokes’s easement did not encumber the right-of-way. The court in the Flathead County action entered an order on October 29, 2002, declaring that the scope of Stokes’s easement always had been limited to its historic location. We affirmed. Anderson, ¶ 60.
¶6 Stokes filed a complaint in the First Judicial District Court, Lewis and Clark County, on April, 22 2004, claiming that Rebeck tortiously had interfered with his easement rights. Stokes alleged that Rebeck unlawfully had induced Anderson to file a complaint that had resulted in a court order limiting the scope of Stokes’s easement and causing him damages. The parties filed cross-motions for summary judgment. The District Court denied Stokes’s motion for summary judgment and granted the State’s motion for cross-summary judgment as to Stokes’s claim for tortious interference with his easement rights. Stokes appeals.
STANDARD OF REVIEW
¶7 We review a district court’s decision to grant summary judgment de novo, using the same criteria applied by the district court under M. R. Civ. P. 56. GRB Farm v. Christman Ranch, Inc., 2005 MT 59, ¶ 7, 326 Mont. 236, ¶ 7, 108 P.3d 507, ¶ 7. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M. R. Civ. P. 56(c). We draw all reasonable inferences in favor of the party opposing summary judgment. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16, 92 P.3d 620, ¶ 16.
DISCUSSION
¶8 Did the District Court correctly grant the State’s motion for summary judgment based on its determination that Stokes had failed to present a prima facie case of tortious interference with his easement?
¶9 Stokes alleges that Rebeck interfered with his easement when Rebeck induced Anderson to file a lawsuit seeking either to extinguish Stokes’s easement or, alternatively, to limit Stokes’s easement to its historic location. Stokes claims first that the court’s order limiting his easement to its historic location destroyed his “plans for future expansion.” Stokes admits that Rebeck has not interfered with Stokes’s historic use of his easement. He argues, however, that his easement would have permitted him to expand his radio facility beyond its historic location to anywhere on Anderson’s property.
¶10 Stokes must establish that Rebeck’s alleged acts actually caused some interference with his existing easement rights. Grenfell v. Anderson, 2002 MT 225, ¶ 75, 311 Mont. 385, ¶ 75, 56 P.3d 326, ¶ 75; Lachenmaier v. First Bank Systems, Inc., 246 Mont. 26, 34-35, 803 P.2d 619 (1990); Restatement (Second) of Torts § 766 (1979). In Grenfell, for example, we rejected the plaintiffs claim that Grenfell tortiously had interfered with the plaintiffs sublease in light of the fact that the plaintiffs sublease had been terminated by the time that Grenfell allegedly interfered with the sublease. Grenfell, ¶ 66. Grenfell could not tortiously have interfered with a property right that did not exist. Grenfell, ¶ 75; see also Germann v. Stephens, 2006 MT 130, ¶ 26, 332 Mont. 303, ¶ 26, 137 P.3d 545, ¶ 26 (holding that a party must establish that it possesses a protected liberty or property interest to establish a viable § 1983 claim).
¶11 Stokes similarly alleges that Rebeck tortiously interfered with a property right that did not exist. This Court determined that Stokes had no easement rights-and never had any easement rights-beyond the historic location of his radio facility. Anderson, ¶ 60. Stokes offers no evidence to the contrary. Stokes thus presents an illusory claim of tortious interference with his right to expand his radio facility as Stokes’s easement never permitted such an expansion in the first place.
¶12 Stokes claims alternatively that Rebeck induced Anderson’s failed attempt to extinguish Stokes’s easement. He claims damages from emotional distress and attorneys fees in defending the extinguishment suit. The State responds that Stokes has failed to offer any facts suggesting that Rebeck’s acts were “improper” as required by our decision in Bolz v. Myers, 200 Mont. 286, 651 P.2d 606 (1982).
¶13 We held in Bolz that a plaintiff must show that the defendant’s acts were “improper” in order to establish a claim for tortious interference with contractual relations. Bolz, 200 Mont. at 294-95, 651 P.2d at 610. We consider the following factors when determining whether a party’s acts were improper: (a) the nature of the actors conduct; (b) the actor’s motive; (c) the interests of the other with which the actor’s conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference; and (g) the relations between the parties. Bolz, 200 Mont. at 294-95, 651 P.2d at 610.
¶14 The record shows that the State, acting through Rebeck, agreed to pay Anderson more money for the right of way if he could show that Stokes’s easement did not encumber the State’s proposed right-of-way. Stokes points to nothing that the State had to gain from paying more to Anderson for the right-of-way. Rebeck advised Anderson to consult an attorney regarding whether Stokes’s easement encumbered the State’s proposed right-of-way. Rebeck’s suggestion to Anderson that he should consult a lawyer, however, relates only remotely to Anderson’s ultimate decision to file an action to extinguish the easement. The record does not indicate that Rebeck encouraged Anderson to file a lawsuit.
¶15 We agree with the District Court that it “certainly would not be improper, let alone unlawful, for an attorney in Rebeck’s position to tell a landowner whose property is subject to being acquired by condemnation that he should consult with an attorney ....” Rebeck’s actions comported with a lawyer’s ethical duty to advise a third party to “secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” Montana Rule of Professional Conduct 4.3. Likewise, Rebeck did not act improperly when she offered, on behalf of the State, to pay Anderson more money for a right-of-way that he could show was free and clear of any easements. Stokes has failed to allege any facts establishing that Rebeck acted improperly, thus, we need not address the remaining elements of his claim for tortious interference with his easement. Bolz, 200 Mont. at 294-95, 651 P.2d at 610.
¶16 We conclude that the State is entitled to summary judgment as no genuine issue of material fact exists with regard to whether the State tortiously interfered with Stokes’s easement. GRB Farm, ¶ 7. The District Court correctly determined as a matter of law that Stokes has failed to establish a prima facie case of tortious interference with his easement.
¶17 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, RICE and NELSON concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Lee Thompson, Darin Sharp, and Scott Bailey (collectively, “the Workers”) each filed claims in the Workers’ Compensation Court (‘WCC”) for workers’ compensation benefits. In a separate action, the Workers jointly filed a Petition for Declaratory Judgment in the WCC, naming the State of Montana (“State”) as the sole respondent. They sought a declaration stating that the claimant disclosure procedures, specifically the claimant disclosure waiver provisions set forth in §§ 39- 71-604(3) and 50-16-527(5), MCA (2003) violated their state constitutional right to privacy and deprived them of property without due process of law. The WCC allowed Liberty Northwest Insurance Corporation (“Liberty’) and Montana State Fund (“MSF”; collectively, “Intervenors”) to intervene in the action. The WCC then granted summary judgment in favor of the Workers and held that §§ 39-71-604(3) and 50-16-527(5), MCA, were unconstitutional. The WCC also awarded attorney’s fees and costs against the State. Subsequently, the WCC denied Libertys Motion for Reconsideration. The State and Intervenors (collectively, “Appellants”) appeal. We reverse.
¶2 Appellants raise multiple and overlapping issues on appeal, which we restate as follows:
1. Did the WCC err by concluding that it had jurisdiction to enter a declaratory judgment in the particular context of this case?
2. Did the WCC err when it awarded attorneys fees and costs against the State?
3. Did the WCC err by ruling that the claimant disclosure procedures of §§ 39-71-604(3) and 50-16-527(5), MCA, violate a workers’ compensation claimant’s constitutional right to privacy under Article II, Section 10 of the Montana Constitution?
4. Did the WCC err by ruling that the claimant disclosure procedures of §§ 39-71-604(3) and 50-16-527(5), MCA, deprive a workers’ compensation claimant of property without due process of law under Article II, Section 17 of the Montana Constitution?
¶3 Because the first two issues are dispositive of this appeal, we do not address Issue 3 or Issue 4. On appeal, MSF confines its arguments solely to Issues 3 and 4. Thus, we will not address MSF’s arguments. Instead, we will address the arguments presented by the State and Liberty pertaining to Issues 1 and 2.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On June 30, 2004, the Workers filed a Petition for Declaratory Judgment (“Petition”) in the WCC. The State was the only respondent named in the Petition. The Workers sought a declaratory judgment stating that §§ 39-71-604(3) and 50-16-527(5), MCA, are unconstitutional under Article II, Section 10 of the Montana Constitution. Article II, Section 10 of the Montana Constitution provides that “[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
¶5 Section 39-71-604(3), MCA, a provision of the Workers’ Compensation Act, states that “[a] signed claim for workers’ compensation or occupational disease benefits or a signed release authorizes a workers’ compensation insurer... to communicate with a physician or other health care provider about relevant health care information” and to receive such relevant information “without prior notice to the injured employee.” The Uniform Health Care Information Act, codified as §§ 50-16-501 to -553, MCA, provides that a patient may authorize a health care provider to disclose the patient’s health care information if the authorization identifies the nature of the information to be disclosed and identifies the person to whom the information is to be disclosed. Section 50-16-526, MCA. Section 50-16-527, MCA, in turn, explicitly provides an exception to the general rules set forth in § 50-16-526, MCA. Under § 50-16-527(5), MCA, a signed claim for workers’ compensation benefits or a signed release authorizes a workers’ compensation insurer to communicate with a physician or other health care provider about relevant health care information and receive such information without prior notice to the injured employee. The language of § 50-16-527(5), MCA, is, for all intents and purposes, identical to the language of § 39-71-604(3), MCA.
¶6 Essentially, the Workers argued that the claimant disclosure procedures set forth in §§ 39-71-604(3) and 50-16-527(5), MCA, violated their state constitutional right to privacy because there was no compelling state interest which supported the right of private insurers to engage in private communications with health care providers for an injured employee without prior notice to the employee. The Workers also asked the WCC to award reasonable attorney’s fees and costs against the State.
¶7 On July 21, 2004, pursuant to Admin. R. M. 24.5.309 and M. R. Civ. P. 24(a), Liberty moved to intervene in this action. According to Liberty, it is the “largest private workers’ compensation carrier in the State of Montana.” The WCC granted Liberty’s motion to intervene on July 26, 2004. MSF subsequently filed a motion to intervene, also pursuant to Admin. R. M. 24.5.309 and M. R. Civ. P. 24(a), on August 23,2004. MSF argued that a ruling on the constitutionality of § 39-71-604, MCA, would affect all workers’ compensation insurance carriers in Montana, including MSF. On August 26, 2004, the WCC granted MSF’s motion to intervene.
¶8 The Workers moved for summary judgment on October 15, 2004, asserting that no genuine issues of material fact existed and that §§ 39-71-604(3) and 50-16-527(5), MCA, were unconstitutional as a matter of law under Article II, Section 10 of the Montana Constitution.
¶9 On January 25, 2005, before the WCC ruled on the motion for summary judgment, the Workers filed a motion to amend their Petition. In addition to their original request that §§ 39-71-604(3) and 50-16-527(5), MCA, be declared unconstitutional under Article II, Section 10 of the Montana Constitution, the Workers also sought a declaration stating that §§ 39-71-604(3) and 50-16-527(5), MCA, are unconstitutional under the Due Process Clauses of Article II, Section 17 of the Montana Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. In other words, the Workers sought a declaratory judgment stating that §§ 39-71-604(3) and 50-16-527(5), MCA, are unconstitutional because they violated the Workers’ state constitutional right to privacy and deprived the Workers of property without due process of law under the Montana and United States Constitutions. The WCC granted the Workers leave to amend their Petition on February 11, 2005.
¶10 On May 6, 2005, the Workers filed a second motion for summary judgment, again asserting that no genuine issues of material fact existed. The Workers renewed their request for summary judgment on the right to privacy issue and also moved for summary judgment on the ground that §§ 39-71-604(3) and 50-16-527(5), MCA, violated their “rights to due process of law under Article II, § 17 of the Montana Constitution and under the 5th and 14th Amendments to the United States Constitution.”
¶11 On October 18, 2005, the WCC granted summary judgment in favor of the Workers. The WCC declared that §§ 39-71-604(3) and 50-16-527(5), MCA, violated Article II, Sections 10 and 17 of the Montana Constitution. Further, the WCC noted that it need not address the constitutional challenges raised by the Workers pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. Lastly, the WCC stated that the Workers’ request for attorney is fees and costs was “well taken” and ordered the Workers to submit an itemization of attorney's fees and an application for taxation of costs. On October 19, 2005, the WCC issued an order amending its Order Granting Motions for Summary Judgment to correct a typographical error.
¶12 On November 4, 2005, Liberty filed a lengthy Motion to Reconsider. Three days later, MSF filed a Request for Clarification, inquiring as to the constitutionality of §§ 39-71-604(2) and 50-16-527(4), MCA, which also set forth claimant disclosure procedures. In a response dated November 16, 2005, the State noted that it did not oppose Liberty’s Motion to Reconsider. Additionally, the State objected to the WCC’s award of attorney’s fees and costs and also questioned the WCC’s jurisdiction to make such an award.
¶13 On April 28,2006, the WCC denied Liberty’s Motion to Reconsider and rejected the State’s challenge to the WCC’s jurisdiction to award attorney’s fees and costs. In the course of its analysis, the WCC also addressed its jurisdiction to issue a declaratory judgment in this case. The WCC did not respond to MSF’s Request for Clarification. Appellants appeal from the October 18,2005 Order Granting Motions for Summary Judgment, the October 19,2005 Order Amending Order Granting Motions for Summary Judgment, and the April 28, 2006 Order Denying Intervenors’ Motion for Reconsideration.
STANDARD OF REVIEW
¶14 Interpretation and construction of a statute is a matter of law. Madrid v. Zenchiku Land and Livestock, 2002 MT 172, ¶ 5, 310 Mont. 491, ¶ 5, 51 P.3d 1137, ¶ 5. Likewise, a court’s determination as to its jurisdiction is a conclusion of law. Stanley v. Lemire, 2006 MT 304, ¶ 52, 334 Mont. 489, ¶ 52, 148 P.3d 643, ¶ 52. We review a workers’ compensation court’s conclusions of law to determine whether the court’s conclusions are correct. Gamble v. Sears, 2007 MT 131, ¶ 20, 337 Mont. 354, ¶ 20, 160 P.3d 537, ¶ 20 (citing Flynn v. Uninsured Employers’ Fund, 2005 MT 269, ¶ 11, 329 Mont. 122, ¶ 11, 122 P.3d 1216, ¶ 11); In re Workers’ Comp. Benefits of Noonkester, 2006 MT 169, ¶ 13, 332 Mont. 528, ¶ 13, 140 P.3d 466, ¶ 13 (citing Ruhd v. Liberty Northwest Ins. Corp., 2004 MT 236, ¶ 13, 322 Mont. 478, ¶ 13, 97 P.3d 561, ¶ 13); Rausch v. State Compensation Ins. Fund, 2005 MT 140, ¶ 9, 327 Mont. 272, ¶ 9, 114 P.3d 192, ¶ 9.
DISCUSSION
¶15 1. Did the WCC err by concluding that it had jurisdiction to enter a declaratory judgment in the particular context of this case?
¶16 The State contends that the WCC erred by concluding that it had jurisdiction to enter a declaratory judgment concerning the constitutionality of §§ 39-71-604(3) and 50-16-527(5), MCA, in the context of this case. This question first arose after the WCC had entered its order granting summary judgment in favor of the Workers. In its order denying Liberty’s Motion to Reconsider, the WCC determined that it had jurisdiction to enter a declaratory judgment in this case for the following reasons.
¶17 The WCC noted that the Uniform Declaratory Judgments Act (“UDJA”), codified at §§ 27-8-101 to -313, MCA, provides that “[c]ourts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Section 27-8-201, MCA. The WCC then determined that the failure of the Legislature to include the WCC in the list of the courts of record enumerated in § 3-1-102, MCA, does not mean that the WCC is not a court of record. According to the WCC, reasoning by analogy, the failure of the Legislature to include it in the list of the courts of justice of this state, set forth in § 3-1-101, MCA, would also mean that the WCC is not a court of justice. It maintained that this reasoning produced “an undoubtedly absurd result.”
¶18 The WCC further reasoned that Appellants had asked it to insert language into § 3-1-102, MCA, so that it would effectively state that “the municipal courts and no others are courts of record.” The WCC noted that “[ajlthough § 3-1-102, MCA, enumerates several courts as courts of record, it contains no limiting language to indicate that only those courts mentioned qualify as courts of record in this State.” The WCC maintained, therefore, that it was not free to construe § 3-1-102, MCA, in such a manner so as to exclude the WCC from the list of the courts of record.
¶19 Lastly, the WCC observed that it had the same contempt powers as the district courts and that appeals from the WCC proceed directly to the Montana Supreme Court. On these grounds, the WCC concluded that it must be a court of record as contemplated by the UDJA.
¶20 As an alternative theory, the WCC reasoned that if it did not have jurisdiction to issue declaratory judgments concerning the constitutionality of workers’ compensation statutes, “it begs the question not only as to which court would have jurisdiction to do so, but what would be the practical effect for a petitioner whose prayer for declaratory judgment is an argument in the alternative to other workers’ compensation issues which belong in this Court.” The WCC speculated that, more importantly, it was in the best position to make determinations as to the constitutionality of workers’ compensation statutes. Therefore, for all of these reasons, the WCC concluded that it had jurisdiction to issue a declaratory judgment in this case.
¶21 The State argues on appeal that the WCC’s conclusion is erroneous. First, the State contends that the WCC is a court of limited jurisdiction and that it may only hear a petition brought by a claimant or an insurer concerning workers’ compensation benefits. In the State’s view, the WCC’s jurisdiction may extend to other benefit-related issues, but only so long as the underlying dispute is related to benefits payable to a claimant. The State cites Alaska Pac. Assur. Co. v. L.H.C., Inc., 191 Mont. 120, 124, 622 P.2d 224, 226 (1981), for the proposition that the WCC does not have jurisdiction when a petition filed by a claimant does not in any way indicate that the claimant was then being deprived of compensation benefits. The State asserts that the Workers’ Petition demanded neither benefits nor a declaratory judgment concerning their entitlement to benefits. Therefore, the State argues that the Workers’ Petition was not properly before the WCC and, accordingly, that the WCC lacked jurisdiction.
¶22 Second, the State asserts that the only source of authority within the Montana Administrative Procedure Act (“MAPA”; §§ 2-4-101 to - 711, MCA) by which the WCC could issue declaratory judgments is § 2-4-501, MCA, which provides that “[e]ach agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency” (emphasis added). In addition, the State notes that the WCC can issue declaratory rulings pursuant to Admin. R. M. 24.5.351(1) “[w]here the court has jurisdiction” to do so. Therefore, according to the State, the WCC’s authority to issue declaratory judgments or rulings is limited to the applicability of statutes and rules concerning disputes over workers’ compensation benefits.
¶23 Lastly, the State argues that the UDJA does not confer jurisdiction on the WCC to issue declaratory judgments. The State maintains that courts of record are limited by statute to those listed in § 3-1-102, MCA. Section 3-1-102, MCA, provides that “[t]he courts of impeachment, the supreme court, the district courts, the municipal courts, and the justices’ courts of record are courts of record.” The State argues that because the WCC is not included in this list, the WCC is not a court of record. Therefore, the State maintains that the UDJA does not confer jurisdiction upon the WCC to issue declaratory judgments outside the realm of a dispute concerning workers’ compensation benefits.
¶24 We agree with the State that the WCC did not have jurisdiction to issue a declaratory judgment holding §§ 39-71-604(3) and 50-16-527(5), MCA, unconstitutional in the particular context of this case. Unlike the general jurisdiction granted to district courts over “all cases in law and in equity,” § 3-5-302(1), MCA, the WCC is a court of limited jurisdiction, Oberson v. Federated Mut. Ins. Co., 2005 MT 329, ¶ 11, 330 Mont. 1, ¶ 11, 126 P.3d 459, ¶ 11. In particular, the WCC is an administrative tribunal governed by MAPA and allocated to the Department of Labor and Industry for administrative purposes. See Kloepfer v. Lumbermens Mut. Cas. Co., 272 Mont. 78, 81, 899 P.2d 1081, 1083 (1995) (“The statutes governing workers’ compensation claims direct the Workers’ Compensation Court to be bound by ‘the Montana Administrative Procedure Act.’ ” (quoting § 39-71-2903, MCA)); Wheeler v. Carlson Transport, 217 Mont. 254, 263, 704 P.2d 49, 55 (1985) (stating that the WCC is an administrative tribunal); Hert v. J. J. Newberry Co., 179 Mont. 160, 161, 587 P.2d 11, 12 (1978) (“[H]earings before the Workers’ Compensation Court are considered to be administrative proceedings.”); § 2-15-1707(1), MCA (“The office [of workers’ compensation judge] is allocated to the department of labor and industry for administrative purposes only as prescribed in 2-15-121.”). Courts of limited jurisdiction have only such power as is expressly conferred by statute. See Jenkins v. Carroll, 42 Mont. 302, 312, 112 P. 1064, 1069 (1910).
¶25 The pertinent statutes here are §§ 2-4-501 and 39-71-2905(1), MCA. The latter provides that the WCC has jurisdiction over “dispute[s] concerning any benefits under [the Workers’ Compensation Act, Title 39, Chapter 71, MCA].” Section 39-71-2905(1), MCA; see also Noonkester, ¶¶ 20, 23; Liberty v. State Fund, 1998 MT 169, ¶ 11, 289 Mont. 475, ¶ 11, 962 P.2d 1167, ¶ 11. Section 2-4-501, MCA, in turn, authorizes declaratory rulings “as to the applicability of any statutory provision or of any rule or order of the agency.” Taken together, these statutes authorize the WCC to issue declaratory rulings only in the context of a dispute concerning benefits under the Workers’ Compensation Act and only as to the applicability of any statutory provision, rule, or order of the agency to that dispute.
¶26 Here, the Workers’ Petition did not demand benefits or a declaratory judgment concerning the applicability of workers’ compensation statutes to a particular dispute over benefits. Indeed, the Workers concede in their brief that “[h]ere, no benefits are at issue.” Therefore, we hold that the WCC did not have jurisdiction to issue a declaratory judgment holding §§ 39-71-604(3) and 50-16-527(5), MCA, unconstitutional in the context of this case.
¶27 The Workers seek to avoid this holding based on the following four theories. First, the Workers argue that the WCC had jurisdiction to issue a declaratory judgment concerning the constitutionality of §§ 39-71-604(3) and 50-16-527(5), MCA, because Appellants admitted in their responses to the Petition that the issues raised therein were “appropriate for a declaratory judgment by [the WCC].” The Workers cite Audit Services v. Frontier-West, Inc., 252 Mont. 142, 148-49, 827 P.2d 1242, 1247 (1992), in which this Court stated that “[i]t is well settled that the parties are bound by and estopped from controverting admissions in their pleadings.” Relying on Audit Services, the Workers contend that Appellants are estopped from challenging the jurisdiction of the WCC to issue a declaratory judgment concerning the constitutionality of §§ 39-71-604(3) and 50-16-527(5), MCA.
¶28 We reject this argument outright. “Jurisdiction involves the fundamental power and authority of a court to determine and hear an issue.” Stanley, ¶ 30 (citing State v. Diesen, 1998 MT 163, ¶ 5, 290 Mont. 55, ¶ 5, 964 P.2d 712, ¶ 5). Accordingly, subject-matter jurisdiction can never be forfeited or waived. Stanley, ¶ 32 (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 1244). Additionally, subject-matter jurisdiction cannot be conferred by the consent of a party. In re Marriage of Miller, 259 Mont. 424, 427, 856 P.2d 1378, 1380 (1993). Therefore, “ ‘[t]he issue of subject matter jurisdiction may be raised by a party, or by the court itself, at any stage of a judicial proceeding.’ ” Noonkester, ¶ 29 (citing State v. Tweedy, 277 Mont. 313, 315, 922 P.2d 1134, 1135 (1996)). Consequently, Appellants’ admissions in their responses to the Workers’ Petition cannot confer jurisdiction that otherwise does not exist.
¶29 Second, the Workers contend that the WCC’s jurisdiction is not confined to disputes concerning benefits. As support for this proposition, the Workers cite Wunderlich v. Lumbermens Mut. Cas. Co., 270 Mont. 404, 409, 892 P.2d 563, 567 (1995), Miller v. Frasure, 264 Mont. 354, 361-62, 871 P.2d 1302, 1307 (1994), and State, Etc. v. Hunt, 191 Mont. 514, 518, 625 P.2d 539, 542 (1981). The Workers also rely on Gould v. County Market Super Valu Stores, 233 Mont. 494, 497, 766 P.2d 213, 215 (1988), in which this Court stated that the WCC’s jurisdiction is “limited to workers’ compensation matters, and its procedures are less formal,” but that its decisions are “something more than administrative agency decisions.” Along these same lines, the Workers assert that the authority of the WCC is broader than that exercised by an agency because decisions of the WCC are appealed directly to the Montana Supreme Court. Finally, the Workers claim that under § 39-71-203, MCA, the WCC is vested with the “power, authority, and jurisdiction necessary to the exercise of its power to conduct proceedings and hearings and make determinations concerning disputes” under Title 39, Chapter 71, MCA. Therefore, according to the Workers, the jurisdiction of the WCC extends beyond disputes concerning benefits and is not restricted by the fact that its proceedings are conducted under MAPA.
¶30 It is true that the history of the WCC and the statute providing for exclusive jurisdiction in that court “to make determinations concerning disputes under [the Workers Compensation Act],” § 39-71-2905(1), MCA, indicate that “the jurisdiction of the court goes beyond that minimum whenever the dispute is related to benefits payable to a claimant,” Hunt, 191 Mont. at 519, 625 P.2d at 542. This does not mean, however, that the WCC may issue declaratory rulings outside the context of a dispute concerning benefits, and none of the cases cited by the Workers support their contention that the WCC’s jurisdiction is not confined to disputes concerning benefits. See Wunderlich, 270 Mont. at 409, 892 P.2d at 567 (analyzing the WCC’s ruling made in the context of a dispute over benefits); Miller, 264 Mont. at 361-62, 871 P.2d 1302 at 1307 (same), Gould, 233 Mont. at 500-01, 766 P.2d at 217 (same), and Hunt, 191 Mont. at 518, 625 P.2d at 542 (same).
¶31 Third, the Workers argue that nothing in the UDJA expressly limits the power to enter declaratory judgments under § 27-8-201, MCA, to only those courts of record enumerated in § 3-1-102, MCA. (Again, § 27-8-201, MCA, provides that “[cjourts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed” (emphasis added).) MAPA provides that the WCC shall maintain a “stenographic record of oral proceedings when demanded by a party,” § 2-4-614, MCA; accordingly, the Workers suggest that the WCC is “technically” a court of record as contemplated by the UDJA. Therefore, according to the Workers, the WCC had jurisdiction in this case to issue a declaratory judgment stating that §§ 39-71-604(3) and 50-16-527(5), MCA, are unconstitutional.
¶32 The State characterizes the Workers’ attempt to categorize the WCC as a court of record as “bizarre.” Irrespective of this characterization, we agree with the State that the Workers’ position is without merit. For one thing, § 3-1-102, MCA, sets forth the courts of record in this state. They are as follows: “[t]he court of impeachment, the supreme court, the district courts, the municipal courts, and the justices’ courts of record are courts of record.” Section 3-1-102, MCA. The WCC does not appear in this list, and neither we nor the WCC may read the WCC into the list at the request of the Workers. See § 1-2-101, MCA (“In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted.”).
¶33 Further, the fact that MAPA requires stenographic records in some instances is not sufficient to transform the WCC into a court of record for purposes of § 27-8-201, MCA. The WCC and other administrative tribunals may produce records which this Court or a district court may review on appeal. However, courts that produce records are not the same as courts of record. The State correctly points out that if every administrative tribunal could transform itself into a court of record simply by producing records, the statutory limitations on the jurisdiction of courts of limited jurisdiction would be meaningless. Thus, lest there be any doubt, the WCC is not presently authorized to issue declaratory judgments under the UDJA and, more specifically, § 27-8-201, MCA.
¶34 Fourth, and lastly, the Workers maintain that if, as the State suggests, the Workers must challenge the constitutionality of workers’ compensation laws in district court, the “practical effect of this solution” is to force them into “two separate courts; foster confusion between two courts; increase the likelihood of conflicting rulings; and compound time and expense for all litigants.” This argument also is without merit. If the Workers have “a dispute concerning any benefits” under the Workers’ Compensation Act, and if they wish, within the context of that dispute, to challenge “the applicability of any statutory provision or of any rule or order of the agency” on constitutional grounds, they may do so. Sections 2-4-501, 39-71-2905(1), MCA. Therefore, as a factual matter, the Workers’ fear of being forced into two separate courts is simply unfounded. On the other hand, if the Workers wish to challenge the constitutionality of a statutory provision, rule, or order outside the context of a dispute concerning benefits, they must do so in district court. While the Workers contend that the “practical effect” of this scheme is to foster confusion between two courts, increase the likelihood of conflicting rulings, and compound time and expense for all litigants-a contention which is not supported by any evidence in the record-the statutory scheme is what the Legislature created, and conjectured savings in judicial economy cannot be a source of subject-matter jurisdiction.
¶35 For the foregoing reasons, we conclude that the WCC erred by concluding that it had jurisdiction to issue a declaratory judgment holding §§ 39-71-604(3) and 50-16-527(5), MCA, unconstitutional in the context of this case.
¶36 2. Did the WCC err when it awarded attorney’s fees and costs against the State?
¶37 The State argues that the Workers were not entitled to the attorney’s fees and costs awarded by the WCC for either of two reasons: (1) because the decision of the WCC to enter a declaratory judgment holding §§ 39-71-604(3) and 50-16-527(5), MCA, unconstitutional must be reversed, or (2) because the WCC’s authority to award attorneys fees and costs did not apply in this case.
¶38 The general rule in Montana is that absent a statutory or contractual provision, attorneys fees are not recoverable. Stanley, ¶ 72; accord Hoven v. Amrine, 224 Mont. 15, 17, 727 P.2d 533, 534 (1986) (“Attorney fees are allowed when they are provided for by statute or contractual provision.”). The WCC has authority to award attorney’s fees and costs in cases when it “determines that the insurer’s actions in denying liability or terminating benefits were -unreasonable.” Section 39-71-611(l)(c), MCA. As the State points out, this is not such a case-not only because the State (as distinguished from MSF) is not an insurer, but also because this was not an action concerning benefits.
¶39 Apparently recognizing that § 39-71-611(1), MCA, did not authorize an award of attorneys fees and costs in this case, the WCC relied on § 27-8-311, MCA, which provides that “[i]n any proceeding under this chapter the court may make such award of costs as may seem equitable and just.” For the reasons set forth above, however, the WCC did not have jurisdiction to enter a declaratory ruling under the UDJA; thus, this case was not a proceeding under Title 27, Chapter 8, MCA. Accordingly, § 27-8-311, MCA, also was not authority for the WCC to award attorneys fees and costs in this case.
¶40 We conclude that the WCC erred when it awarded attorney’s fees and costs against the State, and we therefore reverse the WCC’s award of attorneys fees and costs.
CONCLUSION
¶41 In summary, we hold that the WCC erred in concluding that it had jurisdiction to issue a declaratory judgment holding §§ 39-71-604(3) and 50-16-527(5), MCA, unconstitutional in the context of this case. If the Workers wish to challenge the constitutionality of §§ 39-71-604(3) and 50-16-527(5), MCA, that challenge must be brought in district court. Likewise, we also reverse the WCC’s award of attorneys fees and costs against the State.
¶42 Reversed.
CHIEF JUSTICE GRAY, JUSTICES COTTER, RICE and DISTRICT JUDGE SALVAGNI, sitting for JUSTICE MORRIS, concur.
We note that in 2003, the Legislature amended §§ 39-71-604(3) and 50-16-527(5), MCA. The 2003 amendments made two significant changes to both §§ 39-71-604(3) and 50-16-527(5), MCA. First, the Legislature provided explicitly for the disclosure and communication of health care information. Second, the Legislature provided for such disclosure without prior notice to the injured employee. Neither §§ 39-71-604(3) nor 50-16-527(5), MCA, have been amended since.
The WCC appears to have been quoting the pre-2005 version of § 3-1-102, MCA. In 2005, the Legislature added “justices’ courts of record” to the list of courts of record. Thus, § 3-1-102, MCA, now provides: “The court of impeachment, the supreme court, the district courts, the municipal courts, and the justices’ courts of record are courts of record.”
We note that Liberty also challenges the WCC’s conclusion concerning its jurisdiction to issue a declaratory judgment in this case. However, Liberty’s arguments are encompassed by the State’s arguments on this issue, and the State makes a number of arguments not made by Liberty. We therefore set forth the arguments as they are framed by the State.
The WCC apparently proceeded on the premise that it had jurisdiction to issue a declaratory ruling in this case unless that jurisdiction was withdrawn by a provision of law. This premise was incorrect. Because courts of limited jurisdiction have only such power as is expressly conferred by statute, the correct starting premise is that the WCC-or any other court of limited jurisdiction, for that matter-does not have the jurisdiction in question unless that jurisdiction is conferred by a specific provision of law.
Counsel for the Workers conceded this point during oral argument.
In this regard, we note that the WCC reasoned that Appellants were asking it to insert language into § 3-1-102, MCA, so that the statute would effectively read: “The court of impeachment, the supreme court, the district courts, the municipal courts, and the justices’ courts of record, and no others, are courts of record” (underscore for new language). Yet it was the WCC that inserted language into § 3-1-102, MCA, by effectively adding “the workers’ compensation court” to the list contained therein. When the Legislature has provided an exclusive listing in a statute, there is no need to insert limiting but extraneous language (i.e., “and no others”).
Furthermore, the Legislature clearly is capable of expanding the list of the courts of record as it did in 2005 when it added the justices’ courts of record (see ¶ 18 n. 2). Indeed, during the 2007 Session, the Legislature passed, and the Governor signed, Senate BillNo. 523, which amends § 3-1-102, MCA, to read: “The court of impeachment, the supreme court, the district courts, the workers’ compensation court, the municipal courts, and the justices’ courts of record are courts of record” (underscore for new language). The fact that the WCC was not heretofore included in the list of courts of record contained in § 3-1-102, MCA, but will be included in that list beginning October 1,2007 (the effective date of the amendment), only bolsters our conclusion that during the time period at issue here, the WCC was not a court of record.
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] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 This case arises from the dissolution of the marriage of Drew Wendt (Drew) and Jennifer Wendt (Jennifer). Drew appeals the District Court’s Order Adopting Petitioner’s Motion to Amend Parenting Plan, which limits his custody over their child, K.B.W. The following issue is presented for review:
¶2 Did the District Court err by entering a final parenting plan without holding a hearing?
¶3 We reverse.
BACKGROUND
¶4 Drew and Jennifer were married on March 24,2001. They had one child from their marriage, KB.W. Another child from Jennifer’s previous marriage, E.L.M., also resided with Drew and Jennifer. Jennifer petitioned for the dissolution of the marriage on May 31, 2011. On October 28, 2011, the District Court held a hearing in the matter and outlined an interim schedule for the parenting and custody of the children while Drew procured a permanent residence in the area. After Drew obtained permanent housing in the area, the parties continued to operate under the same schedule.
¶5 On January 18,2013, Jennifer filed a Motion to Modify Parenting Plan, requesting that Drew’s parenting time be dramatically reduced, allegedly to reflect the amount of time that Drew was spending with the children. Drew’s response argued for a parenting plan wherein the children resided primarily with him. On March 20, 2013, the District Court ordered the parties to attend mediation on the matter.
¶6 Drew was mailed a letter notifying him of the date of the mediation. However, Drew was purportedly incapacitated by medication that he was receiving for a shoulder injury and did not pick up his mail. Drew did not attend the mediation and when his lawyer called he did not answer his phone. The District Court then entered an order amending the parenting plan on May 22,2013. The only reason the court provided for issuing the order was Drew’s failure to appear at the mediation. Drew then filed a motion pursuant to M. R. Civ. P. 60(b)(4) seeking relief from that order. The District Court failed to rule on the motion within the 60-day period prescribed by M. R. Civ. P. 60(c)(1), and it was consequently denied.
STANDARD OF REVIEW
¶7 Where a movant seeks relief under subsection (4) of Rule 60(b), the standard of review is de novo, since the determination that a judgment is or is not void is a conclusion of law. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451 (citing Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir. 1995)).
DISCUSSION
¶8 In deciding the parenting of the child, a district court must “determine the parenting plan in accordance with the best interest of the child.” Section 40-4-212(1), MCA. The court must consider all relevant parenting factors in determining whether parenting time is in the child’s best interest. Section 40-4-212(1), MCA. We require that the district court make findings of fact sufficient for this Court to determine whether the court considered the statutory factors and made its ruling on the basis of the child’s best interest. Woerner v. Woerner, 2014 MT 134, ¶ 15, 375 Mont. 153, 325 P.3d 1244 (citing Jacobsen v. Thomas, 2006 MT 212, ¶ 16, 333 Mont. 323, 142 P.3d 859). This requirement finds its roots in § 40-4-219(1), MCA, which provides that a District Court “may in its discretion amend a prior parenting plan if it finds, upon the basis of facts ... that the amendment is necessary to serve the best interest of the child.” (Emphasis added.)
¶9 The District Court here gave but one reason for its amendment of the parenting plan: “Petitioner and her counsel were present [for the mediation]. Respondent’s counsel was present but the Respondent did not appear. Attempts by Respondent’s counsel to contact the Respondent were unsuccessful.” The court issued no corresponding findings of fact or conclusions of law, and critically, the court made no mention of the best interest of the child. Accordingly, we cannot determine whether the court considered the child’s best interest in making its ruling. The only conclusion we can draw from the court’s order is that Drew’s absence at the mediation was the determinative factor in amending the parenting plan. There is no support in the law for reliance on this factor alone in amending a parenting plan. The District Court’s order ran awry of the requirements of §§ 40-4-212(1), 219(1), MCA, and is therefore contrary to law.
¶10 Jennifer argues that Drew’s absence at mediation should be treated as a default judgment. Jennifer relies on our holding in Caplis v. Caplis, 2004 MT 145, ¶¶ 16, 24, 321 Mont. 450, 91 P.3d 1282 that “default judgments are proper upon facts establishing careless conduct or willful ignorance” toward the legal proceeding. Default judgments are appropriate when a party against whom judgment is sought has failed to plead or otherwise defend. M. R. Civ. P. 55(a). Jennifer cites no legal authority treating parenting-time mediation as part of a party’s pleading or defense, and we can find no precedent supporting such an application. This is because default judgments in parenting dissolutions are particularly repugnant to the idea that the court should protect the best interest of the child and that both parents should be involved with the child. Further, Caplis is easily distinguishable as it concerned a civil suit between officers and shareholders in a corporation, rather than a parenting plan tailored to serve the best interest of the child. We therefore decline to allow for default judgments in a parenting plan proceeding solely on the basis of a party’s absence at mediation.
¶11 A party is entitled to relief from a judgment under M. R. Civ. P. 60(b)(4) when the judgment is void. “A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process of law.” Greater Missoula Area Fedn. Of Early Childhood Educators v. Child Start, Inc., 2009 MT 362, ¶ 21, 353 Mont. 201, 219 P.3d 881 (quoting O’Rourke Bros., Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 951 (7th Cir. 2000)). A natural parent’s right to the care and custody of his or her child is a fundamental liberty interest that must be protected by fundamentally fair procedures. Steab v. Luna, 2010 MT 125, ¶ 22, 356 Mont. 372, 233 P.3d 351 (citations and quotations omitted). “[I]f a permanent change in custody appears to the court to be necessary then due process requires that an application be made for that purpose and proper notice of such application be given.” State ex rel. Shelhamer, 159 Mont. 11, 15, 494 P.2d 928, 930 (1972). The procedure for amending parenting plans is clearly established by statute:
The court shall deny the [motion to amend a parenting plan] unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interests of the child, in which case it shall set a date for a hearing on an order to show cause why the requested plan or amendment should not be granted.
Section 40-4-220(1), MCA (emphasis added). In this case, the court did not issue findings concerning the best interests of the child, nor did it hold a hearing for Drew to show cause why the amendment should not be granted. We find no evidence in the court’s order or the record showing that Drew was afforded any process of law, much less due process. Accordingly, the judgment is void as a matter of law and Drew is entitled to relief from that judgment under M. R. Civ. P. 60(b)(4).
¶12 As a final matter, Jennifer argues that the original parentingplan was only an interim parenting plan, and that § 40-4-220, MCA, “only applies when a party is seeking an interim parenting plan or an amendment of a final parenting plan, neither of which occurred in this matter.” Whether the District Court was making a new interim plan, creating a final parenting plan, amending an interim plan, or amending a final plan, one thing is clear; the court made no findings concerning the best interest of the child in coming to its conclusion. That consideration is required no matter the permanent status of the parenting plan or motion for amendment. See §§ 40-4-212,-213(1), -220(1), -234(l)-(2), MCA. The failure to hold a hearing in consideration of the best interest of the child is a violation of due process requiring reversal.
CONCLUSION
¶13 The District Court’s Order Adopting Petitioner’s Motion to Amend Parenting Plan and denying Drew’s 60(b)(4) motion is reversed.
CHIEF JUSTICE McGRATH, JUSTICES SHEA, McKINNON and RICE concur.
|
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JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 The following issues are presented on appeal:
¶2 Did the District Court abuse its discretion when it determined that the Allen surname was in the best interest of the children ?
¶3 Did Judge Knisely’s consolidation of the complaint deprive Justin of his right to substitute judges under statute and substantive due process?
BACKGROUND
¶4 Kelisa Ann Allen (hereafter Kelisa), and Justin Keith Tucker (hereafter Justin) have two children, J.T. and B.T., and were divorced in Maricopa County, Arizona in 2004. Kelisa relocated to Billings, Montana, with the children and sought an order of protection against Justin. Hon. Gregory R. Todd granted that petition but expressly reserved Justin’s right of access to his children pursuant to the Arizona divorce decree.
¶5 Kelisa remarried in 2007, taking the surname “Allen.” In 2010, Kelisa filed a motion before Hon. Russell Fagg to suspend Justin’s contact with the children. Judge Fagg granted that motion, suspending Justin’s parenting time pending reevaluation of the custody agreement. In September 2011, Kelisa filed a pro se petition to change the surnames of J.T. and B.T. to “Allen.” That petition was granted in October 2011.
¶6 Justin filed a complaint in July of 2012 seeking to set aside the name-changes pursuant to M. R. Civ. P. 60 on the grounds that he was not served notice of the hearing. The new action was first assigned to Judge Fagg, but counsel for Justin filed a motion for substitution and the complaint was assigned to the Hon. Mary Jane Knisely (Judge Knisely). Upon review of the case, Judge Knisely issued an order sua sponte consolidating Justin’s new complaint with the name-change petition and parenting plan issues. The order held that the interest of judicial economy justified consolidation of these cases in front of Judge Fagg. The order also held:
It is clear to this Comí; upon review of the case and the timeline that Petitioner’s counsel filed the Complaint to Set Aside Default Alternation of Children’s Surname, rather than a motion, in order to open a brand new case and thus circumvent Montana Code Annotated § 3-1-804, which states that “a motion for substitution by the party served must be filed within 30 calendar days after service has been completed in compliance with M. R. Civ. P. 4.”
¶7 Judge Fagg considered the merits of Justin’s Rule 60 motion and determined that rehearing on the name-changes was necessary because Kelisa failed to properly serve Justin. Both parties and several witnesses presented testimony at the hearing. Judge Fagg concluded that the name-changes were in the best interest of the children because they had not seen Justin for approximately nine years, they resided in a household with their younger siblings who had the Allen surname, their mother had taken the Allen surname, the children themselves had been going by the Allen surname for several years, and finally, the children wanted to take the Allen surname.
¶8 On appeal, Justin argues that the District Court erred by granting the name-change because Justin sought to rekindle the parent-child relationship, often sent gifts to them, and was prevented from visiting them by the order of protection and Kelisa’s alleged obstruction of his attempts to contact the children. Justin also contends that the consolidation of cases issued by Judge Knisely had the effect of negating his motion forjudge substitution, depriving him of his right to substitute judges under statute and substantive due process.
STANDARDS OF REVIEW
¶9 Appropriate standards of review will be identified as they arise in this opinion.
DISCUSSION
¶10 Did the District Court abuse its discretion when it determined that the Allen surname was in the best interest of the children ?
¶11 In contested cases when one parent seeks to change his or her child’s name, the district court shall determine whether the best interest of the child will be served. In re Petition for Change of Name of Iverson, 241 Mont. 140, 141, 786 P.2d 1, 1 (1990). In a name change petition, we review a lower court’s evaluation of the best interests of the child for a clear abuse of discretion. In re Iverson, 241 Mont. at 141, 786 P.2d at 2 (citing Allen v. Allen, 175 Mont. 527, 575 P.2d 74 (1978)); In re the Custody of J.C.O., 1999 MT 325, ¶ 10, 297 Mont. 327, 993 P.2d 667. We review 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. Overton v. Overton, 207 Mont. 292, 294, 674 P.2d 1089, 1090 (1983).
¶12 We have previously upheld a district court’s finding that a name-change is in the best interest of the child when the child had carried the surname for an extended time, when the custodial parent and primary caretaker had the same surname, and when half-siblings living with the child had the same surname. In re J.C.O., ¶ 12. As in J.C.O, the court in this case found that the children had gone by the Allen surname for a period of time, that their half-siblings bore the Allen surname, and that their mother, the custodial parent and primary caretaker, had taken the surname. The court further recognized that Justin had not been in contact with the children for nine years, and thus, the children did not identify him as their father. Justin claims that this final consideration was improper because he was prohibited from contact by a restraining order. Whether a surname is in the best interest of the children, however, is not determined by whether a given parent is at fault for his estrangement from the children. The District Court acted within its discretion when it granted the name-change based on the children’s familial, psychological, and emotional needs.
¶13 Justin also relies on Firman v. Firman, 187 Mont. 465, 470, 610 P.2d 178, 181 (1980), to argue that the desire for a common surname between the children, mother, stepfather, and half-siblings “should not permit an unnatural barrier to come between” Justin and his children. But in J.C.O., we cautioned against the assumption that a biological father’s surname is the natural way of things and that its absence would create an “unnatural barrier” between father and child. In re J.C.O., ¶¶ 11-12 (citing In re Iverson, 241 Mont. at 144, 786 P.2d at 4 (Barz, J., dissenting)). A parent’s personal preferences or traditional values are not determinative when deciding whether a certain name is in the best interest of the children. In re J.C.O., ¶ 13. The District Court did not abuse its discretion when it found that the children had ftilly integrated into a new family, that they did not consider Justin their father, and that their best interest was promoted by sharing a surname with their mother, half-siblings, and stepfather.
¶14 Finally, a petition for a change of name must be signed by the person whose name is to be changed and, if the person is under 18 years of age, by one of the person’s parents. Section 27-31-101, MCA. Justin argues that the petition did not comply with the formal requirements of § 27-31-101, MCA, because neither B.T. nor J.T. had signed the petition. Although the statute requires the signatures of the person whose name will be changed, the purpose of this requirement is to ensure that the named person actually consents to changing their name. The signatures of B.T. and J.T. were missing from this petition, however, both children were present in court for the original name-change hearing and Judge Fagg addressed the older child concerning their wishes. The children expressed their wish to take the Allen surname based on their relationship with their stepfather and their younger half-siblings. This exchange with the Judge in open court was a reliable indicator of consent. Although the formal requirements of § 27-31-101, MCA, require the children to sign the name change petition, that requirement is not so rigid that it precludes an equally reliable expression of consent, like the one in this case. In addition, M. R. Civ. P. 61 provides that, at every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. Justin fails to demonstrate how his substantial rights were affected by the court’s reliance on the children’s consent in open court, rather than their signatures on the petition. The District Court correctly determined that the children consented to the name-change in compliance with the purpose of § 27-31-101, MCA.
¶15 Did Judge Knisely’s consolidation of the complaint deprive Justin of his right to substitute judges under statute and substantive due process?
¶16 We review a district court’s interpretation and application of a procedural rule de novo. Yellowstone Co. v. Drew, 2007 MT 130, ¶ 11, 337 Mont. 346, 160 P.3d 557 (citing State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458). Montana Rule of Civil Procedure 42(a) provides that a district court may consolidate actions involving a common question of law or fact. Montana Rule of Civil Procedure 60(d) grants a court the discretionary power to entertain an independent action to relieve a party from a judgment, or to grant relief to a defendant who was not personally notified of the action.
¶17 Justin’s complaint, originally before Judge Fagg, relied on Rule 60(d) to set aside the final judgment in the name-change proceeding. Justin moved for substitution under § 3-1-804, MCA, and the complaint was assigned to Judge Knisely. Judge Knisely found that, because the complaint constituted a Rule 60 motion to set aside a final judgment issued by Judge Fagg, it was not a separate and distinct action from the name-change, custody, and divorce cases in front of Judge Fagg.
¶18 Justin relies on the language of Rule 60(d)(1) to argue that his motion constituted an “independent action” for relief from judgment, and therefore, should not have been consolidated under Rule 42(a). The term “independent action” in Rule 60(d), however, does not guarantee any right to bring a separate and distinct complaint, but rather, refers to an independent cause of action “in equity to obtain relief from judgment.” Barrett v. Secretary of Health & Human Servs., 840 F.2d 1259, 1262-63 (6th Cir. 1987) (citing Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure vol. 11, § 2868, 237-38 (1973). Such an action is a narrow avenue for relief, reserved for those unusual circumstances where a case of injustice is deemed sufficiently gross to demand disturbing a final judgment. See Brodie v. Dept. of Health and Human Servs., 951 F. Supp. 2d 108, 114-15 (D.D.C. 2013). “An independent action in equity may not be used to obtain further review of issues already decided in the previous action.” In re Smith, 989 P.2d 165, 170 (Colo. 1999) (citing Barrett, 840 F.2d at 1266). Justin’s remedy under Rule 60(d) is to allege sufficiently unusual or inequitable circumstances to justify disturbing a final judgment; the Rule does not grant him the right to relitigate the judgment in a separate and distinct action.
¶19 The District Court correctly concluded that Justin’s motion for substitution was untimely. The statutory right to substitution does not allow a party to avoid consolidation of common issues under Rule 42. Justin was properly served in a number of other proceedings before Judge Fagg involving his marriage to Kelisa and his parental rights after the divorce, and the surnames of the children are undisputedly connected to those actions. Justin could have demanded substitution of Judge Fagg in those initial proceedings, but did not. Justin cannot now demand a new judge on a matter that is clearly connected to those initial proceedings by common issues. To do so would effectively allow relitigation of settled issues of law or fact, which is expressly prohibited under the doctrine of res judicata. Kullick v. Skyline Homeowners Ass’n, 2003 MT 137, ¶ 17, 316 Mont. 146, 69 P.3d 225. Judge Knisely properly consolidated the name-change action with other cases before Judge Fagg because the cases concerned the same issues of law or fact.
CONCLUSION
¶20 The District Court acted within its discretion in granting the name change and did not err by consolidating the case. We affirm.
CHIEF JUSTICE McGRATH, JUSTICES RICE, BAKER and McKINNON concur.
|
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JUSTICE REGNIER
delivered the opinion of the Court.
¶1 James Lane appeals from the entry of a nunc pro tunc order entered by the Thirteenth Judicial District Court, Yellowstone County, correcting the written judgment and commitment to conform to the sentence as orally pronounced. For the reasons stated below, we affirm.
¶2 The dispositive issues on appeal are:
¶3 1. Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane’s sentencing hearing?
¶4 2. Did entry of the nunc pro tunc order to correct Lane’s sentence violate Lane’s rights to due process?
¶5 3. Did entry of the nunc pro tunc order to correct Lane’s sentence constitute double jeopardy?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 James Lane was charged by information in the Thirteenth Judicial District Court, Yellowstone County, with the felony offense of sexual intercourse without consent on March 4, 1994. Lane appeared with counsel and pled guilty to the offense on November 3, 1994.
¶7 On February 15, 1995, Lane appeared with counsel in District Court for his sentencing hearing. After sentencing recommendations from both parties, the District Court stated:
It is the Order and Judgment of this Court that you serve ten years in the Montana State Prison. It will be a Special Order of this Court that you will not be paroled until Sexual Offender Program Phases I and II are completed.
The Court believes in this case [], based on the testing results and the evaluation that has been done, that there appears to be a high risk of reoffending, which you have verified to the Court by your lack of recognition of the seriousness of this offense this morning.
The Court bases this sentence on the psychological evaluation, the pre-sentence report and the special circumstances and nature of this offense.
(Emphasis added.)
¶8 A minute entry filed on February 15, 1995, by the clerk of the District Court regarding Lane’s sentence, provides as follows:
The Court’s sentence is that the defendant be imprisoned for a term of 10 years in the Montana State Prison. It is a further order of the Court, that the defendant not be eligible for parole until after he completes Phases I and II of the Sexual Offender Treatment Program.
¶9 Although the transcript and minute entry from the sentencing unquestionably indicate that the District Court required that Lane complete sexual offender treatment before parole, the written judgment filed on February 21, 1995, provided:
IT IS THE RECOMMENDATION OF THIS COURT that the defendant not be eligible for Parole, pursuant to Section 46-18-202, Montana Code Annotated, until said defendant has completed both Phases I & II of the Sex Offender Treatment Program.
(Emphasis added.)
¶10 A year later, on March 6, 1996, the court entered a nunc pro tunc order regarding Lane’s sentence. The nunc pro tunc order provides, in its entirety:
It appearing to the Court that the Judgment heretofore entered by the Clerk in [Lane’s case] is not a correct memorial of the Judgment as rendered and announced by this Court in the particulars hereinafter set forth, in that through inadvertence and clerical error the Judgment is not a correct memorial as rendered and announced by the Court is hereby corrected to conform to the actual Judgment intended, announced and rendered by the Court:
IT IS ORDERED that JAMES LANE not be eligible for parole until the defendant has successfully enrolled in and completed the Montana Sex Offender Treatment Program, Phases I and II.
In all other respects the Judgment and Order Suspending Sentence entered on the 15th day of February, 1995, shall remain unchanged.
¶11 In April 1996, Lane was scheduled to have parole considered in his case. However, the parole board informed him that he would not be considered for parole. Upon Lane’s request for a reason why he would not be considered for parole, an officer from the parole board told Lane by letter of the District Court’s nunc pro tunc order. Before this, Lane had not received any notice of the nunc pro tunc order.
¶12 On July 18, 1996, the clerk of the District Court filed a notice received from Lane indicating that he was appealing the decision in “State v. Lane, decided Feb. 15th, 1995.” On August 5,1996, the State filed a response to Lane’s notice of appeal, arguing that his appeal was untimely made.
¶13 On September 16, 1996, this Court received Lane’s request for court-appointed counsel to represent him in his appeal. Lane also moved for bond pending appeal. On September 27, 1996, we remanded to the District Court for a ruling on Lane’s motions for appointment of new counsel and for bail pending appeal. We also granted Lane’s request for a continuance for purposes of transmission of the transcript and filing an appeal brief until the State had an opportunity to respond to Lane’s motions and the District Court ruled on said motions.
¶14 Upon receipt of our order, the District Court notified the State and Lane’s trial counsel, the Yellowstone County Public Defender’s office, and asked both to file responses. Both parties filed responses that suggested they were unaware of what Lane was actually appealing. The Public Defender’s office asked the District Court to appoint the State Appellate Defender to represent Lane with his appeal in order to avoid any conflict of interest claim because the office had represented Lane during trial. On November 26, 1996, the District Court appointed the State Appellate Defender to represent Lane and set bail at $50,000 pending appeal.
¶15 On April 3,1997, Lane filed a motion with this Court pursuant to Rule 3, M.R.App.P., to suspend the application of the Rules of Appellate Procedure relative to the time for filing an appeal. Under Rule 5, M.R.App.P., an appeal in a criminal case must be taken in sixty days. Lane sought to appeal the entry of the nunc pro tunc order filed by the District Court more than a year after the court had imposed sentence. However, Lane’s pro se notice of appeal was not filed within sixty days of entry of the nunc pro tunc order. On April 16, 1997, the State filed a response objecting to the appeal on the grounds that this Court lacks jurisdiction where a notice of appeal has not been timely filed.
¶16 On May 1, 1997, we granted Lane’s motion to suspend the sixty-day filing requirement of Rule 5(b), M.R.App.P., and permitted Lane to file a notice of appeal of the District Court’s nunc pro tunc order.
¶17 Lane now appeals, arguing that the District Court, by way of its nunc pro tunc order, erroneously modified his sentence and violated a number of his rights.
ISSUE 1
¶18 Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane’s sentencing hearing?
¶19 At the sentencing hearing, the District Court clearly imposed a condition of ineligibility for parole until Lane had completed both phases of sexual offender treatment at prison. However, the written judgment made this condition a recommendation. Over a year later, this conflict between the oral pronouncement of sentence and the written judgment was called to the District Court’s attention. By entry of a nunc pro tunc order, the District Court stated that its written judgment was in error and corrected it to conform to the oral pronouncement.
¶20 Lane, relying on precedent established by this Court in State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170, argues that the written version is the final, valid judgment that can not be amended by means of a nunc pro time order. Moreover, Lane contends that the District Court’s amendment of the sentence in the written judgment and commitment constituted double jeopardy and violated his constitutional and statutory rights to be present at any sentencing proceeding and be represented by counsel. Furthermore, Lane argues, the entry of the nunc pro tunc order violated his right to due process.
¶21 The State counters that it is within the District Court’s inherent power to correct an error in the record at any time by entry of a nunc pro tunc order. The State also asserts that the District Court has authority under § 46-18-117, MCA, to correct an erroneous sentence at any time. However, the State, ignoring the precedent established by Enfinger, states that the oral sentence, not the written judgment, controls. The State cites other jurisdictions for this proposition, but fails to offer any reason why this Court should overrule Enfinger and its progeny and hold that the oral pronouncement of sentence should constitute the final, valid judgment.
Oral Pronouncement v. Written Judgment
¶22 We begin by focusing on the conflict that existed between the District Court’s oral pronouncement at the sentencing hearing on February 15, 1995, and the written judgment filed on February 21, 1995. Lane and the State disagree as to what constitutes a final valid, judgment — the terms and conditions as orally announced by the sentencing court, or the final, written judgment filed with the clerk of court.
¶23 In Enfinger, the defendant was convicted of mitigated deliberate homicide at trial. The defendant was sentenced and remanded to the sheriff for delivery to Montana State Prison. Later that same day, the court brought Enfinger back into court for further proceedings because the judge had earlier failed to state his reasons for imposing sentence and it was necessary for him to do so. In the second hearing, the judge designated the defendant a dangerous offender. After the second hearing, a judgment was reduced to writing and filed with the court.
¶24 On appeal, Enfinger argued that the District Court, in designating him a dangerous offender, unconstitutionally subjected him to double jeopardy by enhancing his punishment after the court had sentenced him in a previous proceeding. We noted that the first sentence pronounced by the court, was not reduced to writing, signed by the judge, or filed with the clerk of the court. In rejecting the defendant’s argument, we held that the oral sentence first pronounced by the court was not a valid, final judgment. We relied on and quoted from a New Mexico case that held “[i]t is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment.” Enfinger, 222 Mont. at 444, 722 P.2d at 1174 (quoting State v. Diaz (1983), 100 N.M. 524, 673 P.2d 501, 502, cert. denied (1984), 469 U.S. 1016, 105 S. Ct. 429, 83 L. Ed. 2d 356).
¶25 In State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177, we relied on Enfinger and held that “[t]he oral sentence first pronounced by the District Court did not constitute a final judgment. Atrial court remains free to modify such a ruling until such time as it is reduced to writing, signed by the district judge and filed with the court.” Wirtala, 231 Mont. at 270, 752 P.2d at 181 (citation omitted). See also State v. Mason (1992), 253 Mont. 419, 833 P.2d 1058 (holding that defendant was not placed in double jeopardy when he was later returned to the courtroom on the same day for the trial court to amend its oral pronouncement and designate him as a dangerous offender because the oral judgment was not a final, valid judgment).
¶26 Subsequently, in State v. Graveley (1996), 275 Mont. 519, 915 P.2d 184, we were faced with resolving a conflict between the oral pronouncement at sentencing and the written judgment and commitment. At the hearing, the court sentenced Graveley “to a period of 40 years with the Department of Corrections, the first ten years of that sentence will be placed in a prison environment similar to that of the Montana State Prison.” However, when the court issued its written judgment and commitment, it stated that Graveley was
committed to the Montana Department of Corrections and Human Services for a period of forty years (40) years for placement that may include Montana State Prison ....
It is the recommendation of this Court that defendant Graveley serve a portion of this sentence in a prison environment. The Montana Department of Corrections and Human Services may allow additional good time if it deems appropriate for parole eligibility.
¶27 On appeal, Graveley argued that the written judgment must conform to the oral pronouncement of sentence. He argued that the written judgment had the effect of resentencing him after he had already started serving his sentence and, thus, violated his due process rights and double jeopardy protections. The oral sentence, he argued, was in essence a ten-year sentence with an additional thirty-year sentence 'suspended. The written judgment, however, was for forty years, possibly less at the discretion of the Department of Corrections. The State responded to Graveley’s argument by relying on Enfinger and contending that it was “well established in Montana that an oral pronouncement of judgment is not a final judgment and may be changed at any time prior to entry of a written judgment.”
¶28 In evaluating Graveley’s claim, we noted that the District. Court did not state in its written judgment that the sentence pro nounced in open court was either illegal or erroneous and, therefore, could not be corrected pursuant to § 46-18-117, MCA. Rather than basing our decision on Enfinger and holding that the written judgment was final, we held that Graveley was not prejudiced by the court’s written judgment varying from the orally pronounced sentence. Although the court should not have altered the written judgment from its oral pronouncement of sentence, we concluded that the error was harmless.
¶29 The Court’s opinion in Graveley provoked a strongly worded dissent which focused on the conflict between this Court’s approach to the finality of a sentence and the federal position. “To the extent that Enfinger, Wirtala, and Mason hold that a written sentence can alter the terms of an oral sentence which the defendant has already begun to serve, they fundamentally contradict Montana statutory law and federal law regarding the finality of sentences.” Graveley, 275 Mont. at 527, 915 P.2d at 189 (Leaphart, J., dissenting).
¶30 Lane’s case, like Graveley’s, raises an important question regarding the sentencing of criminal defendants. Under Montana law, which sentence — the oral pronouncement or the written judgment and commitment — is the legally effective sentence, controlling for the purpose of finality? A review of both Montana statutory law and federal precedent, leads this Court to conclude that holding the oral pronouncement of sentence to be the legally effective sentence is more consistent with our constitutional and statutory provisions.
¶31 The right of the criminal defendant to be present in the courtroom has its source in the confrontation clause of the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution, which states, in relevant part, “[i]n all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.” The purpose of the right of presence is to: (1) assure defendants the opportunity to observe, in most cases, all stages of the trial “in order to prevent the loss of confidence in courts as instruments of justice which secret trials would engender,” and (2) protect the integrity and reliability of courtroom procedures by guaranteeing the defendant the opportunity to aid in his defense. United States v. Gregorio (4th Cir. 1974), 497 F.2d 1253, 1258-59, cert. denied, (1974), 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298.
¶32 The following Montana statutes require the defendant’s presence when his sentence is pronounced:
46-16-121. Felony offenses. (1)... the defendant in all cases in which a felony is charged must be present at... sentencing ....
46-16-123. Absence of defendant on receiving verdict or at sentencing....
(2) In all felony cases, the defendant shall appear in person when ... the sentence is imposed unless ....
46-18-115. Sentencing hearing — use of two-way electronic audio-video communication. Before imposing sentence ... the court shall conduct a sentencing hearing, without unreasonable delay, as follows:
(1) The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition, including the applicability of sentencing enhancement provisions, mandatory minimum sentences, persistent felony offender status, or an exception to these matters.
(3) ... the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced. If the defendant wishes to make a statement, the court shall afford the defendant a reasonable opportunity to do so. ...
(4) ... (c)... if the victim’s statement includes new material facts upon which the court intends to rely, the court shall allow the defendant adequate opportunity to respond and may continue the sentencing hearing if necessary.
(6) In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment.
¶33 These statutes implement the Sixth Amendment and Article II, Section 24, of the Montana Constitution, allowing the defendant to be present and giving him an opportunity to respond before the trial court imposes its sentence. A defendant’s only opportunity to respond is at the sentencing hearing before the sentence is orally pronounced. There is no need for a defendant to be present when the written judgment and commitment is handed down and filed with the clerk of court because, in most cases, the written judgment and commitment mirrors what was orally pronounced as the sentence at the sentencing hearing. However, if the written judgment and commitment conflicts with the oral pronouncement of sentence and is the legally effective sentence, the defendant has then been sentenced in absentia, violating his statutory right to be present pursuant to §§ 46-16-121(1), -123(2), and 46-18-115, MCA. “Our cases holding that an oral sentence can be altered or amended by a subsequent written sentence imposed out of the presence of the defendant, contradict our statutory scheme, are, arguably, unconstitutional and directly oppose the federal authority they purport to invoke.” Graveley, 275 Mont. at 528, 915 P.2d at 190. (Leaphart, J., dissenting),
¶34 In stating that the oral pronouncement is not the final, valid judgment in Enfinger, we relied on United States v. DiFrancesco (1980), 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328, and stated that “[t]he practice in the federal courts seems to support our decision.” Enfinger, 222 Mont. at 445, 722 P.2d at 1175. In DiFrancesco, the United States Supreme Court did state “the established practice in the federal courts [is] that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence.” DiFrancesco, 449 U.S. at 134, 101 S. Ct. at 436, 66 L. Ed. 2d at 344. DiFrancesco held that under certain conditions set forth by statute, the government could appeal the sentence of a convicted defendant without violating the Double Jeopardy Clause of the United States Constitution. In other words, the defendant had no expectation of finality until the time allowed for the government to appeal had expired. However, DiFrancesco did not address whether the oral pronouncement of sentence or the written judgment was the legally effective sentence or which was controlling with regard to the finality of a sentence.
¶35 In fact, the established practice of the federal courts is that the oral pronouncement of sentence is controlling for the purposes of finality. Regarding the finality of sentences, the Ninth Circuit held:
“The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant.” United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). See United States v. Villano, 816 F.2d 1448, 1451-52 & n. 5 (10th Cir. 1987) (en banc). It is the words pronounced by the judge at sentencing, not the words reduced to writing in the judge’s Judgment/Commitment Order, that constitute the legal sentence.
United States v. Bergmann (9th Cir. 1988), 836 F.2d 1220, 1221.
¶36 The Ninth Circuit recognized the importance of protecting the rights of a criminal defendant during sentencing against double jeopardy. In Munoz-Dela Rosa, the Ninth Circuit emphasized that the oral pronouncement of a sentence must control, even if contrary to the trial judge’s intent:
All acknowledge that judges are human and may misstate their intention at the time of sentencing. The instant case presents very strong evidentiary support for a holding that the district judge did in fact ‘misspeak’ himself at the time Appellant was sentenced. Yet ... the interests of justice, in the light of constitutional double jeopardy protections and the defendant’s right to be present at the time of sentencing ... and to speak on his own behalf ... require strict adherence to the axiom that an unambiguous oral pronouncement of a legal sentence must control.
United States v. Munoz-Dela Rosa (9th Cir. 1974), 495 F.2d 253, 256.
¶37 In United States v. Villano (10th Cir. 1987), 816 F.2d 1448, a judgment and commitment order, signed the same day as the sentencing proceeding, was different from the oral pronouncement of sentence. Three years later, the defendant moved to correct the clerical mistake, arguing that the oral sentence pronounced by the judge should control over the commitment order. The Tenth Circuit held that the legally effective sentence is the oral pronouncement and that the written judgment and commitment is mere evidence of the oral sentence. Villano, 816 F.2d at 1452. The true function of the written judgment is to help clarify an ambiguous oral sentence by providing evidence of what was stated at sentencing. Villano, 816 F.2d at 1452. Villano clearly sets forth the practice followed by the federal courts.
¶38 Under the federal rules, the Tenth Circuit stated that a change to make the written judgment rather than the oral sentence final
would endanger the right to be present at sentencing. Fed.R.Crim.P. 43(a) mandates that “[t]he defendant shall be pre sent... at the imposition of sentence. ...” Rule 43 has its source in the confrontation clause of the sixth amendment and the due process clause of the fifth and fourteenth amendments. Although it is not an absolute right... it is fundamental to the entire law of criminal procedure. A defendant is present only when being sentenced from the bench. Thus, a defendant is sentenced in absentia when the judgment and commitment order is allowed to control when there is a conflict.
The imposition of punishment in a criminal case affects the most fundamental human rights: life and liberty. Sentencing should be conducted with the judge and defendant facing one another and not in secret. It is incumbent upon a sentencing judge to choose his words carefully so that the defendant is aware of his sentence when he leaves the courtroom.
Villano, 816 F.2d 1452-53 (citations omitted).
¶39 Furthermore, a substantial number of the federal circuit courts and state supreme courts subscribe to the principle that when a conflict exists between a court’s unambiguous oral pronouncement of sentence and a written judgment, the oral pronouncement, as correctly reported, must control. For example, the Ninth Circuit has repeatedly held that the oral pronouncement, as correctly reported, controls over the written judgment if the two conflict. See United States v. Garcia (9th Cir. 1994), 37 F.3d 1359, 1368, cert. denied (1995), 514 U.S. 1067, 115 S. Ct. 1699, 131 L. Ed. 2d 562; United States v. Hicks (9th Cir. 1993), 997 F.2d 594, 597; Munoz-Dela Rosa, 495 F.2d at 256.
¶40 After review of our statutory sentencing framework and mindful of the constitutional protections afforded criminal defendants, we now hold that the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and valid, final judgment. Accordingly, the written judgment and commitment will serve as evidence of the sentence orally pronounced. Adopting this interpretation is more consistent with Montana’s constitutional and statutory provisions that allow for a defendant to be present at sentencing and be afforded an opportunity to respond at sentencing.
¶41 Consequently, State v. Enfinger, 222 Mont. 438, 722 P.2d 1170, State v. Mason, 253 Mont. 419, 833 P.2d 1058, State v. Wirtala, 231 Mont. 264, 752 P.2d 177, State v. Graveley, 275 Mont. 519, 915 P.2d 184, and any other Montana case that has held that the written judgment and commitment is the valid, final judgment or legally effective sentence, rather than the oral pronouncement of sentence in the presence of the defendant, are hereby overruled to that extent.
Nunc Pro Tunc Order
¶42 We now turn to the case at bar. Lane argues that the District Court erred in entering the nunc pro tunc order correcting the written judgment and commitment to conform to the oral pronouncement of sentence.
¶43 At the sentencing hearing on February 15, 1995, Lane appeared and was represented by counsel. Both Lane’s counsel and an attorney representing the State made sentencing recommendations to the District Court. Lane addressed the District Court before his counsel made a sentencing recommendation. After hearing both sides present their sentencing recommendations but before pronouncing sentence, the District Court addressed Lane:
THE COURT: James Lane, do you have any further cause to show why judgment should not be pronounced at this time?
[LANE’S COUNSEL]: We do not, Judge.
THE COURT: It is the Order and Judgment of this court that you serve ten years in the Montana State Prison. It will be a Special Order of this court that you will not be paroled until Sexual Offender Program Phases I and II are completed.
¶44 However, when the written judgment and commitment was filed, the requirement that Lane complete Phases I and II of the Sexual Offender Treatment Program before he would become eligible for parole was recorded only as a recommendation by the District Court. When the District Court was informed of this discrepancy, it corrected the written judgment and commitment to conform to its oral pronouncement at the sentencing hearing by means of a nunc pro tunc order. The District Court stated that the mistake was made “through inadvertence and clerical error.” The entry of the nunc pro tunc order was to conform the written judgment and commitment “to the actual Judgment intended, announced and rendered by the [District] Court” at Lane’s sentencing hearing.
¶45 A nunc pro tunc order is a district court order made now of something which was actually done previously to have effect as of the former date. Black’s Law Dictionary 1069 (6th ed. 1990). Judgments or records of district courts may be modified or amended by the entry of nunc pro tunc orders or amended judgments to remedy certain clerical errors. State ex rel. Kruletz v. District Court (1940), 110 Mont. 36, 39-40, 98 P.2d 883, 885. “Every court has the inherent right to correct clerical errors.” Dahlman v. District Court, Seventeenth Judicial Dist. (1985), 215 Mont. 470, 474, 698 P.2d 423, 425. While a District Court may correct clerical errors to make the record speak the truth as to what was actually decided, “[t]he error must be apparent on the face of the record to insure that the correction does not in effect set aside a judgment actually rendered nor change what was originally intended.” State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474.
¶46 Furthermore, outside of a court’s inherent authority to correct clerical errors, a district court may modify or correct a sentence pursuant to § 46-18-117, MCA. When a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to modify or change it, except as provided by statute. State v. Fertterer (1993), 260 Mont. 397, 860 P.2d 151. The only statutory provision that allows a court to modify a sentence is provided at § 46-18-117, MCA, which states:
Correction of sentence. The court may correct an erroneous sentence or disposition at any time and may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after remand from an appellate court.
¶47 Section 46-18-117, MCA, is based upon Rule 35 of the Federal Rules of Criminal Procedure. The federal rule has been recognized as providing “the appropriate remedy to make the judgment and commitment papers conform to the sentence pronounced orally.” 3 Wright, Federal Practice and Procedure § 611, at p. 527 (1982).
¶48 The District Court’s written judgment and commitment clearly conflicted with the oral pronouncement because it only recommended rather than required that Lane complete both Phases I and II of the Sexual Offender Treatment Program before he would be eligible for parole. As discussed above, this Court now concludes that the oral pronouncement of sentence is the legally effective sentence and that the written judgment and commitment serves as evidence of the sentence orally pronounced. Also, we conclude that in the event of a conflict between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement controls. In the event of a conflict, we conclude that a district court may correct an error in a written judgment and commitment by a nunc pro tunc order to accurately reflect what had been orally pronounced at the sentencing hearing pursuant to § 46-18-117, MCA.
¶49 In the present case, the record affirmatively demonstrates that Lane was to remain ineligible for parole until he had completed both Phases I and II of Sexual Offender Treatment Program at the prison. The written judgment and commitment contained a clerical error causing it to conflict with the sentence the District Court orally pronounced at the hearing. Although the District Court did not cite § 46-18-117, MCA, in its nunc pro tunc order, the statute provides authority for the correction. Therefore, the correction of the clerical error was an appropriate nunc pro tunc entry and we find no error.
ISSUE 2
¶50 Did entry of the nunc pro tunc order to correct Lane’s sentence violate Lane’s rights to due process?
¶51 Lane argues that the correction of his sentence by the nunc pro tunc order violates the Due Process Clause of the United States Constitution, and Article II, Section 17, of the Montana Constitution. Both provide that no person shall be denied liberty without due process of the law. Lane contends that his eligibility for parole was delayed by the entry of the nunc pro tunc order. He contends that it is fundamentally unfair for the written judgment and commitment to be enhanced more than thirteen months after he had began serving his sentence.
¶52 Lane’s argument is based upon dicta in Breest v. Helgemoe (1st Cir. 1978), 579 F.2d 95, cert. denied (1978), 439 U.S. 933, 99 S. Ct. 327, 58 L. Ed. 2d 329, which provided:
[T]he power of a sentencing court to correct even a statutorily invalid sentence must be subject to some temporal limit. When a prisoner first commences to serve his sentence, especially if it involves a long prison term as here, the prospect of release on parole or otherwise may seem but a dimly perceived, largely unreal hope. As the months and years pass, however, the date of that prospect must assume a real and psychologically critical importance. ... After a substantial period of time, therefore, it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner’s expectations by postponing his parole eligibility or release date far beyond that originally set.
Breest, 579 F.2d at 101.
¶53 However, the First Circuit has clarified Breest by limiting due process violations to cases where the prisoner’s expectations of being released have been realized and the correction of the sentence results in a tangible detriment or concrete injury. Lerner v. Gill (1st Cir. 1985), 751 F.2d 450, 459, cert. denied (1985), 472 U.S. 1010, 105 S. Ct. 2709, 86 L. Ed .2d 724; Littlefield v. Caton (1st Cir. 1988), 856 F.2d 344, 348. In Littlefield, the First Circuit held that the revocation of illegally awarded “good time credits” which had accrued over a period of nine years did not violate the due process rights of a prisoner who had not yet been released, noting: Littlefield, 856 F.2d. at 348 (quoting Lerner, 751 F.2d at 459). In both Littlefield and Lerner, the First Circuit was influenced by the fact that, although the correction of the sentences left the prisoners with dashed hopes, they were essentially “no worse off than... had the error not been made.” Littlefield, 856 F.2d at 349; Lerner, 751 F.2d at 459.
[W]e have made clear that misdirection of this sort must ‘involve [ ] prejudice and harm beyond frustrated expectations’ to be constitutionally redressable. The mere passage of time — even, as here, the passage of many years — does not per se import the existence of such prejudice and harm. Something more — something specific, some concrete injury — must be shown.
¶54 Although we have concluded that Lane’s written judgment and commitment was in error because it did not conform to the oral pronouncement of sentence, we next evaluate Lane’s due process claim to determine if Lane had acquired a vested interest in an erroneous sentence. We recognize that there must be some time limit after which the State cannot reopen a matter after a final decision and substantial lapse in time. In the present case, however, we conclude that the entry of the nunc pro tunc order correcting Lane’s sentence was neither fundamentally unfair nor unfair because Lane had gained an indefeasible expectation of finality. Furthermore, Lane is unable to establish a concrete injury or prejudice as a result of the nunc pro time order. The parole board may very well have followed the judge’s recommendation provided in the written order and required Lane to complete the sexual offender programs before considering his parole eligibility. The District Court inadvertently erred in stating in the written judgment and commitment that it was a recommendation rather than a requirement that Lane complete Phases I and II of the Sexual Offender Treatment Program before he would be eligible for parole. The record contains no hint of any improper motive on the part of the District Court in issuing the nunc pro tunc order. We also note that Lane was still in prison when he learned of the nunc pro tunc order. Therefore, we find no due process violation here.
ISSUE 3
¶55 Did entry of the nunc pro tunc order to correct Lane’s sentence constitute double jeopardy?
¶56 When a district court corrects a written judgment and commitment to conform to the one it originally intended, double jeopardy does not apply to bar the correction. Owens, 230 Mont. at 137, 748 P.2d at 474. As discussed above, we now conclude that the oral pronouncement of sentence is the legally effective sentence. In Lane’s case, the entry of the nunc pro tunc order served to correct the written judgment and commitment to conform to the oral pronouncement of sentence. Therefore, we find no double jeopardy here.
¶57 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART and HUNT concur.
. See also United States v. Roberts (7th Cir. 1991), 933 F.2d 517, 519 n.1 (“[g]enerally the transcript of the sentencing proceeding takes precedence over the judgment order.”); United States v. Weir (8th Cir.1984), 724 F.2d 94, 95 (per curiam), (“the oral sentence and not the written order constitutes the actual judgment of the court ....”); United States v. Lewis (D.C.Cir.1980), 626 F.2d 940, 953 (“[the] oral sentence constitutes the judgment of the court and is the authority for the execution of the court’s sentence. The written judgment is mere evidence of such authority.”); United States v. Marquez (2d Cir.1974) 506 F.2d 620, 622 (“the written judgment and commitment being nothing more than mere evidence of the sentence imposed orally by the judge.”)
. United States v. Chasmer (3rd Cir. 1991) 952 F.2d 50, 52, cert. denied (1992), 503 U.S. 997, 112 S. Ct. 1703, 118 L. Ed. 2d 412 ("we will follow the firmly established and settled principle of federal criminal law that an orally pronounced sentence controls over a judgment and commitment order when the two conflict"); United States v. Khoury (11th Cir. 1990), 901 F.2d 975, 977 (”[w]here there is a discrepancy between the orally imposed sentence and the written order of judgment and committal, the oral sentence controls"); United States v. Makres (7th Cir. 1988), 851 F.2d 1016, 1017 ("[t]he oral sentence prevails over a conflicting written sentencing order...."); Johnson v. Mabry (8th Cir. 1979) 602 F.2d 167, 170 ("oral sentence pronounced by the sentencing judge constitutes the judgment, and anything inconsistent with the judgment which is included in a commitment order is a nullity."); United States v. Kindrick (5th Cir. 1978), 576 F.2d 675, 677 ("any variance between the oral and written versions of the same sentence will be resolved in favor of the oral sentence."); United States v. Marquez (2d Cir. 1974), 506 F.2d 620.
. Whittlesey v. State (Alaska 1981), 626 P.2d 1066, 1068 ("the written judgment should conform to the oral sentence. The latter ordinarily controls."); State v. Hutchinson (Me. 1991), 593 A.2d 666, 667 ("[wjhere a discrepancy exists between the oral pronouncement of sentence and the written judgment and commitment, it has long been the law that the oral pronouncement of sentence controls ...."); Sampson v. State (N.D. 1993), 506 N.W. 722, 726-27 ("[i]f there is a direct conflict between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement controls ...."); State v. O’Rourke (R.I. 1983), 463 A.2d 1328, 1332 ("[g]enerally when a discrepancy exists between an unambiguous oral pronouncement and a written judgment, the oral pronouncement will control."); State v. Ford, (S.D. 1982), 328 N.W.2d 263; State v. Perry (Wis. 1987), 401 N.W.2d 748, 758 ("where a conflict exists between a court’s oral pronouncement of sentence and a written judgment, the oral pronouncement controls."); Christensen v. State (Wyo. 1993), 854 P.2d 675. But see Temple v. State (Miss. 1996), 671 So. 2d 58, 59 ("in order for a sentence to be valid, a judgment must be entered as of record.”); State v. Dailey (Wash. 1980) 610 P.2d 357, 360 ('[t]he written decision of a trial court is considered the court’s ‘ultimate understanding’ of the issue presented.")
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 M.S. Consulting, et al. (M.S. Consulting) appeal from the summary judgment and decree entered by the Fifth Judicial District Court, Madison County, quieting title to certain water rights in favor of Thomas D. Axtell and Carmen D. Axtell (the Axtells). We reverse and remand.
¶2 The following issue is dispositive of this case:
¶3 Did the District Court err in holding that no genuine issues of material fact existed and that summary judgment was proper?
BACKGROUND
¶4 M.S. Consulting is the owner of a 110-acre parcel of land located east of Sheridan, Montana in Madison County (hereinafter the “large parcel”). Within this large parcel lies a 2-acre parcel owned by the Axtells (hereinafter the “small parcel”). The Axtells own a house and operate a machine shop on the small parcel. Eclipse Creek runs through both the large and small parcels. Located on the large parcel, but beyond the perimeter of the small parcel are several springs. Over the years, the Axtells and their predecessors in interest have used one of these springs for their domestic water needs. It is the water rights to this spring which is the subject of the parties’ dispute.
¶5 Prior to 1951, the large and small parcels were a single parcel owned by Nellie Cierno Duncan. Ms. Duncan lived in a small house located east of Eclipse Creek on what is now the small parcel. Ms. Duncan’s granddaughter, Janet Kentfield (Kentfield), who lived with Ms. Duncan from 1936 until 1943, testified that her grandmother’s house had no electricity or indoor plumbing, and that their water needs were met by going either to the spring on the large parcel, or to nearby Mill Creek, and packing home buckets of water every day. It appears from the facts that the water from Eclipse Creek was not suitable for drinking. Kentfield testified that located west of Eclipse Creek, still on what is now the small parcel, was another small cabin that her grandmother used for storage. When Ms. Duncan’s house burned down sometime after 1943, she fixed up the small storage cabin and moved there. Kentfield testified that this second home likewise had no electricity or indoor plumbing. Although Kentfield moved away in 1943, she visited her grandmother periodically. It was Kentfield’s belief that from 1943 until her grandmother’s death in 1950, her grandmother continued to have water packed from the spring or from Mill Creek to her home. Kentfield testified that during the years she lived with and visited her grandmother, she never saw nor was made aware of any pipes, spigots, or other devices carrying water from the spring to Ms. Duncan’s home.
¶6 Florence W. Baker was a close friend and neighbor who took care of Ms. Duncan. Ms. Baker’s daughter, Shirley McLaren (McLaren), testified that she assisted her mother in taking care of Ms. Duncan by packing the water from either the spring or Mill Creek to the house. McLaren testified that before she left the area in 1953, Ms. Duncan’s water needs were met by spring water which traveled from the spring via galvanized pipe to a spigot located just outside the home.
¶7 On May 9, 1950, the elderly Ms. Duncan conveyed her property to Ms. Baker. Ms. Duncan continued to live on the property until her death on August 10, 1950. Thereafter, the house was vacant.
¶8 On June 15, 1951, Ms. Baker divided the property by conveying the large parcel to H. H. Halse (Halse) and reserving the small parcel. The deed from Ms. Baker to Halse conveyed the stated portion of land “[tjogether with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining.” The deed made no mention of water rights. Ms. Baker owned the small parcel for the next ten years and the house continued to remain vacant.
¶9 On September 6,1961, Ms. Baker sold the small parcel to Milton and Marilyn Hunt (the Hunts). The deed from Ms. Baker to the Hunts expressly conveyed “full right to all water or water rights on said property.” In 1962, the Hunts constructed a home on the small parcel west of Eclipse Creek. Ms. Hunt testified that there were no sources other than Eclipse Creek from which to supply their new home with water. Despite the conveyance of water rights in their deed, the Hunts asked Halse for permission to use water from the spring on the large parcel. Halse agreed and permitted the Hunts to construct a water collection box at the spring and bury plastic water pipes from the spring to their home site. Ms. Hunt testified that during construction of the spring water conveyance system, she and her husband discovered no other buried pipes or evidence of a pre-existing water conveyance system which would have carried water from the spring to the small parcel. Ms. Hunt also stated that she used the former Nellie Cierno Duncan cabin for storage and that it had no indoor plumbing. She stated she never saw nor was she aware of any pipe or spigot conveying water to the cabin.
¶ 10 Ms. Hunt testified that after building the spring water conveyance system, she, her husband, and Halse entered into a signed, written 99-year lease of the spring water. However, neither party has been able to locate this lease. On December 17, 1963, Halse filed a Declaration of Vested Groundwater Rights for the “total flow of all springs” located on the large parcel.
¶11 In October, 1975, the Hunts sold the small parcel to Thomas Walter (Walter). Walter testified that he purchased the small parcel with a loan from the Veterans Administration who, before approving the loan, warned Walter that his spring water rights were not secure and that he may some day have to find another water source or drill a well. At the time, the large parcel, formerly owned by Halse, was now owned by Floyd Fossceco (Fossceco). Walter testified that he continued to use the spring water conveyance system that the Hunts had installed, and that Fossceco never made an issue of water rights.
¶12 Walter also testified that during his ownership of the small parcel, he buried a half- inch metal pipe across the small parcel, past the Duncan cabin, and up to the top of an adjacent mountain where a television antennae was located. Walter testified that within the pipe he inserted television cables and that he undertook this project to obtain better television reception at his house.
¶13 In June, 1984, Walter agreed to sell the small parcel to Ralph Hamler (Hamler). To purchase the parcel, Hamler applied for a loan with the Farmer’s Home Administration (FHA). The FHA would not approve the loan because the water supply to the house did not meet FHA specifications. For the loan to be approved, the FHA required Walter to drill a well and plumb the house accordingly. Walter complied with this request, and in so doing, installed a valve in the basement of the house so that one could easily alternate between using well water and spring water. Walter then sold the small parcel to Hamler.
¶14 On May 15,1990, the Axtells purchased the small parcel. Soon thereafter, the Axtells demolished the former Nellie Cierno Duncan cabin, burned it, and discovered remnants of old half-inch galvanized pipe that had not burned. In 1991, the Axtells hired Joe Tezak (Tezak) to excavate a portion of their land for a machine shop they were planning to build for their business of manufacturing rifle sights and target rifles. During this excavation, Tezak discovered an old galvanized pipe approximately one and a half feet below the level at which the plastic water pipes had been buried. In 1992, the Axtells completed construction of the machine shop and plumbed it so that they could alternate between both well water and spring water. The Axtells mostly used spring water for their needs in the machine shop.
¶15 On December 10, 1993, the Axtells filed with the Montana Department of Natural Resources and Conservation a Notice of Water Right to “developed springs” with a diversion rate of sixteen gallons per minute. On the form, the Axtells indicated that they used the spring water for both domestic and livestock purposes.
¶16 On December 15, 1993, Fossceco sold the large parcel to M.S. Consulting. Fossceco represented to M.S. Consulting that the Axtells’ use of spring water was by permission only. Immediately after closing on their purchase, M.S. Consulting filed a Notice of Water Right on all the springs located on the large parcel, unaware that the Axtells had filed their Notice of Water Right to the spring a few weeks earlier.
¶17 In August, 1995, M.S. Consulting excavated a pond and constructed a dam on the large parcel. During the excavation process, the Axtells’ plastic spring water pipe was accidentally severed. The water pipe was temporarily fixed but left on top of the ground pending completion of the dam. The Axtells requested M.S. Consulting to re-bury the pipes but M.S. Consulting refused. After several failed negotiations in trying to resolve the matter, M.S. Consulting gave the Axtells written notice that their water arrangement was terminated and that the Axtells’ spring water supply would be cut off in forty-five days. On October 15,1995, M.S. Consulting cut off the Axtells’ spring water supply.
¶18 The Axtells responded by filing a complaint and obtaining an ex parte temporary restraining order (TRO) allowing them to re-connect the water line. A week later, a hearing was held on the matter of the TRO after which the District Court issued a temporary injunction enjoining M.S. Consulting from further interference with the Axtells’ spring water supply.
¶19 On June 5, 1996, the Axtells moved for summary judgment. On October 30, 1996, after hearing oral argument on the matter, the District Court issued its Findings of Fact and Conclusions of Law. The court found that summary judgment was proper because no material issues of fact were in dispute. The court found that Ms. Duncan had obtained water from the spring on what is now the large parcel, via galvanized pipe, to a spigot outside her home on what is now the small parcel. The court concluded as a matter of law that when Ms. Baker divided her land, conveying the large parcel to Halse and reserving the small parcel, she necessarily reserved with the small parcel the appurtenant water right, even though she did not expressly reserve such water right in the deed. The court concluded that this water right was thereafter transferred to the Hunts, and through several mesne conveyances, to the Axtells. The court further concluded that the water right claimed by M.S. Consulting was later in time and subordinate to that of the Axtells. The court held that the Axtells were entitled to the use of all waters of the spring.
¶20 After receiving notice of judgment, M.S. Consulting filed a motion to quantify the Axtells’water right, but the motion was denied. M.S. Consulting then appealed to this Court.
STANDARD OF REVIEW
¶21 Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation, based on Rule 56, M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
DISCUSSION
¶22 Did the District Court err in holding that no genuine issues of material fact existed and that summary judgment was proper?
¶23 In determining whether genuine issues of material fact exist in this case, it is necessary to first set out the legal framework in which water law issues are decided. The following information was taken from Professor Emeritus Albert W. Stone’s 1994 treatise Montana Water Law. In Montana, prior to 1973, water rights were adjudicated according to the doctrine of prior appropriation. Under this doctrine, a person could acquire an exclusive right to use a specific amount of water by applying it to the land for a beneficial use, or, in other words, “appropriating” the water. Prior appropriations had priority over later appropriations. Over time, as the number of appropriators claiming water rights in Montana increased, the adjudication of these rights became cumbersome and complex. Finally, in 1973, the Montana Legislature passed the Water Use Act (the Act), abolishing the doctrine of prior appropriation and creating a new system of adjudicating water rights. See Montana Water Use Act, 1973 Mont. Laws 452; Sections 85-2-212 to -907, MCA. The Act mandated that all holders of existing claims to water rights in a particular water basin file with the Montana Department of Natural Resources and Conservation (DNRC). Once existing claims were filed, the DNRC was to give each claim a priority date. If any conflicts arose concerning the priority of claims, then such claims were to be inspected by the DNRC and adjudicated in a water court. The Act provided that once existing water rights were adjudicated and filed according to a priority date, any new claims could arise only by the statutory method of filing, and, later filings would be subordinate to earlier ones.
¶24 Some water rights, including livestock and domestic uses of groundwater, are exempt from the filing requirements of the Act. Section 85-2-222, MCA. However, regardless of whether a water right is exempt from filing or not, the Act provides that once a water right is filed, then the filing constitutes prima facie evidence of its content until the issuance of a final decree. Section 85-2-227, MCA. At the present time, the process of water rights adjudication under the Act is ongoing in Montana.
¶25 Although water rights adjudication today occurs in the framework of the Act, the Act is not the only law that applies. Because the Act recognizes existing water rights, pre-1973 law is still applicable in determining the existence and validity of water rights acquired before 1973. Much of the pre-1973 case law has been codified in the Montana Code Annotated. Because the water right at issue in this case spans a significant number of years prior to 1973, we must apply pre-1973 law in determining the rights of the parties and in deter mining whether there exist genuine issues of material fact making summary judgment improper.
¶26 We turn then to the legal framework of the pre-1973 law. As previously stated, under the common law doctrine of prior appropriation, a person could acquire an exclusive right to use a specific amount of water by applying it to the land for a beneficial use. “Appropriate” means to “divert, impound, or withdraw ... a quantity of water.” Section 85-2-102(1)(a), MCA. “Beneficial use” means “a use of water for the benefit of the appropriator ... including but not limited to agricultural (including stock water), domestic, ... industrial, irrigation, ... and recreational uses.” Section 85-2-102(2)(a), MCA. Appropriations, or “use rights,” have been recognized since the early pioneer days. After numerous use rights had accumulated on the waters in Montana, the Montana Legislature passed a law in 1885 providing that an appropriative water right could also be established by posting a Notice of Water Right at the point of diversion and filing the notice with the county clerk. See Dept. of State Lands v. Pettibone (1985), 216 Mont. 361, 367, 702 P.2d 948, 951. Regardless of which method a person used to acquire a water right, common law or statutory, the underlying rule was that earlier appropriations had priority over later ones.
¶27 Once a water right was acquired, it could be transferred. This is so even today under post-1973 law. Generally, a water right is appurtenant to the land where it is used, “and, as such, passes with the conveyance of the land ... even though the grant does not specifically mention the water right.” Maclay v. Missoula Irrigation Dist. (1931), 90 Mont. 344, 353, 3 P.2d 286, 290 see also Schwend v. Jones (1973), 163 Mont. 41, 44, 515 P.2d 89, 91. However, a water right may be severed from the land to which it is appurtenant by either of the following: (1) the grantor’s conveyance of the land and express reservation of the water right, or (2) the grantor’s conveyances of the land and water right separately. Maclay, 3 P.2d at 290. These rules are restated in § 70-1-520, MCA, which provides that “[t]he transfer of a thing transfers also all its incidents unless expressly excepted, but the transfer of an incident to a thing does not transfer the thing itself.” Once a water right is transferred, the new owner of the water right is prohibited from enlarging the water right beyond the original owner’s use. Maclay, 3 P.2d at 290.
¶28 The division of a tract of land raises the additional question of how to quantify the water right appurtenant to each subdivision. In Bullerdick v. Hermsmeyer (1905), 32 Mont. 541, 553, 81 P. 334, 337 (overruled on other grounds), we held that two grantees who had acquired subdivided parcels of the grantor’s land “each became vested with an interest in the water, measured in amount by the requirements in each case ....” Similarly, in Spaeth v. Emmett (1963), 142 Mont. 231, 237, 383 P.2d 812, 815 we held:
[W]hen an owner of a tract of land with an appurtenant water right grants a portion of the tract without any express division or reservation, the appurtenant water right is divided in respective amounts to each tract measured in proportion as the number of acres irrigated with the water right on the land conveyed bears to the total number of acres irrigated by the water.
¶29 Once a person acquires a water right, either through appropriation or transfer, he must continue to use the water right for a beneficial purpose or risk losing the water right through abandonment. In Matter of Clark Fork River Drainage Area (1995), 254 Mont. 11, 15, 833 P.2d 1120, 1123, we recently stated the law of abandonment as it applies to water rights:
Two elements are necessary for the abandonment of a water right: nonuse of the water associated with the water right and intent to abandon the water right. [E]vidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon that right and shifts the burden of proof to the nonuser to explain the reasons for nonuse. To rebut the presumption of abandonment, there must be established some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire ... regarding future use of the water.
(citations omitted) (the court held that 23 years of nonuse of water rights was sufficient to raise a rebuttable presumption of abandonment). See also 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 431, 666 P.2d 215, 217 (40 years); Holmstrom Land Co. v. Meagher County Newlan Creek Water District (1980), 185 Mont. 409, 424, 605 P.2d 1060, 1069 (75 years); Smith v. Hope Mining Co. (1896), 18 Mont. 432, 438-39, 45 P. 632, 634 (9 years).
¶30 Having set forth the applicable lav/ regarding the acquisition, transfer, and possible loss of water rights, we are prepared to apply the law to the facts of this case and determine whether there exist any genuine issues of material fact. We begin by tracing the water right back to Nellie Clemo Duncan.
¶31 The record shows that Ms. Duncan held a valid water right to the spring in question until May 9,1950, the date she conveyed her property to Ms. Baker. Ms. Duncan’s appropriation and beneficial use is evidenced by the testimony of Kentfield and McLaren that they helped Ms. Duncan pack water from the spring to her home for her domestic needs. Although the facts are in dispute as to whether Ms. Duncan later appropriated spring water via galvanized pipe to a spigot outside her home, these facts are not material to the initial question of whether Ms. Duncan possessed a valid water right. In answering this question, we look only to facts establishing Ms. Duncan’s appropriation, not her method of appropriation.
¶32 On May 9, 1950, when Ms. Duncan conveyed the land to Ms. Baker, Ms. Baker owned the water right because it passed with the land as an appurtenance. Maclay, 3 P.2d at 290. The record shows that for the next three months, until Ms. Duncan’s death on August 10, 1950, Ms. Baker continued to help Ms. Duncan meet her domestic water needs. Thus, it follows that Ms. Baker had a valid water right during this time because she continued to apply the water to the land for a beneficial use. Clark Fork, 833 P.2d at 1123.
¶33 After Ms. Duncan’s death, Ms. Baker owned the entire tract of land for ten months during which the Duncan cabin was vacant. Without citing to authority, M.S. Consulting argues that due to this period of vacancy, and apparent nonuse of the water right, there exists a factual dispute as to whether Ms. Baker possessed a valid water right at the time she divided her land. It appears M.S. Consulting is making an argument of abandonment. As previously stated, two elements must be shown to prove abandonment: nonuse of the water and intent to abandon the water right. Clark Fork, 833 P.2d at 1123. First, with regard to nonuse, we note that a mere vacancy of one’s home does not necessarily mean that water is not being used. Second, with regard to intent, evidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon. Clark Fork, 833 P.2d at 1123. The cases previously cited discussing the law of abandonment illustrate that ten months does not meet this Court’s definition of a “long period of continuous nonuse.” In Montana, the shortest period of continuous nonuse raising a rebuttable presumption of abandonment is nine years. Smith v. Hope Mining Co. of St. Louis, 18 Mont. 435, 45 P. 632, 634. Because M.S. Consulting cannot prove the elements of abandonment for this ten-month period, we conclude that Ms. Baker possessed a valid water right at the time she divided her land.
¶34 When Ms. Baker divided her land on June 15, 1951, conveying the large parcel to Halse and reserving the small parcel, an appurtenant water right passed with the conveyance to Halse, and an appurtenant water right remained with Ms. Baker, each in proportion to the extent of use beneficially applied to the land before the division. Spaeth, 383 P.2d at 815. This is true even though Ms. Baker did not specifically reserve the water right with her reservation of the small parcel. Maclay, 3 P.2d at 290.
¶35 Although Ms. Baker possessed a valid water right appurtenant to the small parcel she reserved, a question exists as to whether Ms. Baker thereafter lost this water right through abandonment. M.S. Consulting asserts that because the Duncan cabin remained vacant during Ms. Baker’s ownership of the small parcel, a period of eleven years, and because no water conveyance system existed on the small parcel during this period, Ms. Baker never used her water right. M.S. Consulting argues that such nonuse resulted in Ms. Baker’s loss of the water right. Again, although M.S. Consulting did not explicitly mention abandonment in its brief, it appears that abandonment is the argument M.S. Consulting intended to make. In support of its position that no water conveyance system existed on the small parcel during Ms. Baker’s period of ownership, M.S. Consulting relies on the testimony of Kentfield, Ms. Hunt, and Walter, that they had never seen and were never made aware of any metal pipes, spigots, or other devices designed to carry water from the spring on the large parcel to the cabin on the small parcel.
¶36 The Axtells do not dispute the vacancy of the Duncan cabin during Ms. Baker’s ownership of the small parcel. However, the Axtells argue that Ms. Baker did not abandon her water right because evidence in the record shows that a water conveyance system existed during the period of Ms. Baker’s ownership of the small parcel. The Axtells point to McLaren’s testimony that in the last years of Ms. Duncan’s life, her water needs were met by a galvanized pipe carrying water from the spring to a spigot located outside her home. Similarly, Joe Tezak testified that while excavating the small parcel for the Axtells, he discovered galvanized pipe located one and one half feet below the plastic water pipes the Hunts had buried. Further, Mr. Axtell testified that galvanized pipe was discovered in the rubble of the burned Duncan cabin. M.S. Consulting purports to explain the existence of this galvanized pipe by arguing that it is the same metal pipe buried by Thomas Walter to protect his underground television cables. However, M.S. Consulting has submitted no evidence explaining why no television cables were found in the rubble with the galvanized pipe.
¶37 Having reviewed the record, we conclude that several issues of material fact exist with respect to whether Ms. Baker abandoned her water right: whether a water conveyance system existed during Ms. Baker’s ownership of the small parcel; whether Ms. Baker failed to use the water right; and whether Ms. Baker intended to abandon her water right. These factual disputes are material to the outcome of this case because if Ms. Baker did not abandon her appurtenant water right to the small parcel, then the Hunts, and through mesne conveyances the Axtells, would have acquired the appurtenant water right. Maclay, 3 P.2d at 290; Section 70-1-520, MCA. However, if Ms. Baker abandoned her water right, then no water right was ever available to pass with the conveyance of the small parcel to the Hunts and later to the Axtells.
¶38 M.S. Consulting argues that the priority of water right filings, Halse’s declaration of water right filed in 1963 and the Axtells’ notice of water right filed in 1993, is another factual dispute material to this case. We hold that this factual dispute is only material if Ms. Baker in fact abandoned her appurtenant water right. If Ms. Baker abandoned her water right, then Halse’s filing would be relevant and material in showing that Halse thereafter appropriated her former right, and owned all rights to the spring. Otherwise, the filings are immaterial in deciding this case because the water rights at issue, livestock and domestic uses of groundwater, are exempt from the filing requirements of the Water Use Act. Section 85-2-222, MCA.
¶39 Lastly, M.S. Consulting argues that the quantity of water used in connection with the water right is a genuine issue of material fact. We agree, but only upon an initial finding that Ms. Baker did not abandon her water right. If this is the case, and an appurtenant water right remained with Ms. Baker’s reservation of the small parcel, then the Spaeth rule applies and the court must apportion the appurtenant water rights according to the extent of use beneficially applied to the land before the division. Spaeth, 383 P.2d at 815. The court must also apply the rule that successors in interest cannot enlarge a water right beyond that which was conveyed. Maclay, 3 P.2d at 290.
¶40 Having discussed both the legal framework under which this case should be decided, and the factual disputes that are material to the outcome of this case, we hold that genuine issues of material fact exist and that summary judgment was improper. The judgment of the District Court is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.
JUSTICES NELSON, GRAY, LEAPHART and TRIEWEILER concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Robert G. Steele (Steele) appeals from the order and judgment of the First Judicial District Court, Lewis and Clark County, dismissing his complaint brought under 42 U.S.C. § 1983 (§ 1983) for failure to state a claim upon which relief can be granted. We affirm.
¶2 The dispositive issue on appeal is whether Joseph Maronick and Daniel McGregor are entitled to judicial or quasi-judicial immunity.
BACKGROUND
¶3 Steele’s complaint alleges the following facts, which we accept as true for purposes of this opinion. Steele is a certified public accountant (CPA) who has been licensed to practice that profession in Montana since 1970. After Steele was denied admission to the State Bar of Montana (State Bar) in 1992, he co-founded an organization called “Montanans for Due Process” through which he is attempting to expose the purportedly corrupt practices of the State Bar. Montanans for Due Process sponsored an initiative entitled “Access to Justice” which proposed to amend the Montana Constitution to eliminate attorney licensing requirements and allow any person to represent another person in civil and criminal court proceedings.
¶4 Steele further alleges that, in 1995, he represented Neville Log Homes (Log Homes) at a prehearing conference in a case involving unemployment insurance taxes before Montana Department of Labor and Industry (DOL) hearing examiner Bernadine E. Warren. Shortly thereafter, Daniel McGregor (McGregor), a DOL attorney, sent a letter to the Montana Supreme Court’s Commission on Unauthorized Practice of Law — with copies to Steele, the State Bar, and the Montana Supreme Court — advising of his concern that Steele was practicing law without a license. McGregor also advised Steele that, as a licensed attorney, he was precluded from assisting Steele in activities which constituted the unauthorized practice of law.
¶5 Steele had represented numerous clients in administrative hearings during his career as a CPA and had been involved in hearings where other nonattorneys had represented clients. After McGregor raised the issue, Steele discussed his representation of Log Homes at the upcoming substantive hearing with three DOL hearing examiners, including Joseph Maronick (Maronick). All three advised that the DOL routinely permits CPAs to represent clients at DOL hearings.
¶6 In the meantime, Log Homes’ unemployment insurance tax case was transferred to hearing examiner Maronick. McGregor moved to preclude Steele from representing any party to the contested case proceeding because Steele was not an attorney and Maronick granted the motion. Nancy Neville, who is not an attorney, subsequently represented Log Homes at the hearing.
¶7 Steele filed his civil rights action for damages under § 1983 in the Fourth Judicial District Court, Missoula County, in May of 1996. He contended therein that the actions of Maronick and McGregor (collectively, the Named Defendants) violated his rights to due process, equal protection and free speech. Steele also asserted that the N amed Defendants, together with six unnamed members of the State Bar (Unnamed Members), conspired to deprive him of his constitutional rights for unspecified personal gain and to retaliate against him for his political views. The Unnamed Members were never named or served.
¶8 The Named Defendants moved to dismiss Steele’s complaint for failure to state a claim upon which relief could be granted and for a change of venue. Venue was changed to the First Judicial District Court, Lewis and Clark County. The District Court granted the Named Defendants’ motion to dismiss for failure to state a claim, concluding that Steele did not allege the violation of a federally protected right which could provide the basis for a § 1983 action, and dismissed Steele’s complaint accordingly. Steele appeals.
STANDARD OF REVIEW
¶9 “Rule 12(b)(6), M.R.Civ.P., motions to dismiss are viewed with disfavor and a complaint should be dismissed only if the allegations in the complaint clearly demonstrate that the plaintiff does not have a claim.” Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 161, 920 P.2d 108, 110 (citations omitted). In considering a motion to dismiss, “the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.” Hollister v. Forsythe (1996), 277 Mont. 23, 26, 918 P.2d 665, 667 (citations omitted).
¶10 The District Court’s determination that Steele’s complaint failed to state a claim upon which relief can be granted is a conclusion of law. See Hollister, 918 P.2d at 667. We review a district court’s conclusion of law to determine whether the interpretation of the law is correct. Hollister, 918 P.2d at 667 (citation omitted).
DISCUSSION
¶11 Are Maronick and McGregor entitled to judicial or quasi-judicial immunity?
¶12 Steele contends on appeal that the District Court erred in dismissing his complaint because the complaint alleged the violation by Maronick and McGregor of three federally protected rights — due process, equal protection and free speech — and, therefore, properly stated claims under § 1983. The Named Defendants contend, on the other hand, that the District Court’s dismissal should be affirmed without regard to whether Steele’s complaint sufficiently alleges the violation of a federally protected right because they are entitled to absolute judicial or quasi-judicial immunity. They advanced these immunities in the District Court but that court dismissed on the grounds set forth above and did not reach the immunity issues.
¶13 For the reasons discussed below, we conclude that Maronick and McGregor are entitled to absolute judicial and quasi-judicial immunity, respectively, from Steele’s § 1983 action for damages. Since absolute immunity is a complete bar to Steele’s action, this issue is dispositive without regard to the technical sufficiency of Steele’s allegations to state a § 1983 claim. As a result, because the issue was timely raised in the District Court and provides a proper basis for affirming the result reached by the District Court (see State v. Parker, 1998 MT 6, ¶ 20, [287 Mont. 151], 953 P.2d 692, 696 (citation omitted)), we need not address Steele’s assertions of error.
¶14 We begin by observing that federal immunity principles apply in § 1983 actions. In analyzing immunity in the context of a violation of federal constitutional rights, the Supreme Court has stated that “[t]o create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head.” Butz v. Economou (1978), 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895, 914. Therefore, no distinction should be made for immunity purposes between a suit brought against a state official under § 1983 and a suit against a federal official brought directly under the Constitution. Butz, 438 U.S. at 504, 98 S.Ct. at 2909.
¶15 In addressing immunity questions, the Supreme Court applies a functional approach. Forrester v. White (1988), 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555, 563. This approach examines the nature of the functions with which a particular official or class of officials has been lawfully entrusted, seeking to evaluate the “effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Forrester, 484 U.S. at 224, 108 S.Ct. at 542.
a. Judicial Immunity
¶16 Judicial immunity provides judges with absolute immunity from suit for civil damages for acts performed in their judicial capacities. Dellenbach v. Letsinger (7th Cir. 1989), 889 F.2d 755, 758. Judges are immune due to the nature of their responsibilities rather than their location in the government. Butz, 438 U.S. at 511, 98 S.Ct. at 2913. This immunity results from the independence judges need to make decisions in matters involving such things as monetary and liberty interests without fear of reprisal from dissatisfied litigants. See Butz, 438 U.S. at 509, 98 S.Ct. at 2912. Moreover, “[t]he essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Mitchell v. Forsyth (1985), 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 424 (citations omitted). Simply stated, absolute immunity is immunity from suit rather than a mere defense to liability. Dellenbach, 889 F.2d at 758 (citation omitted).
¶17 In Butz, the United States Department of Agriculture (the Department) issued an administrative complaint against a corporation which was a registered commodity futures commission merchant. The complaint alleged that the corporation had failed to satisfy the minimum financial requirements established by the Department and sought to revoke or suspend the corporation’s registration. Butz, 438 U.S. at 481, 98 S.Ct. at 2897. After additional investigation, an amended complaint was issued and a hearing was held before the Department’s chief hearing officer, who recommended sustaining the complaint. Butz, 438 U.S. at 481, 98 S.Ct. at 2898. The corporation subsequently filed a § 1983 suit in federal district court naming the chief hearing officer and others involved in the investigation, issuance, and review of the complaint as defendants. Butz, 438 U.S. at 481-82, 98 S.Ct. at 2898.
¶18 The Supreme Court observed that the “conflicts which federal hearing examiners seek to resolve are every bit as fractious as those which come to court[,]” often resulting in post-adjudication disappointment and associated venting by the losing party similar to those which follow adverse judicial determinations. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citation omitted). It also observed that federal administrative law provides many of the same safeguards as are available in the judicial process, such as the adversarial nature of the proceedings, the insulation of the trier of fact from political influence, and the requirement that each party have the opportunity to present oral and documentary evidence. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citations omitted). Moreover, the Supreme Court noted that both the role and the powers of a modern federal hearing examiner-to rule on motions, issue subpoenas, regulate the course of the proceeding and make decisions via findings of fact and conclusions of law-are functionally comparable to those of a judge. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citation omitted). For those reasons, the Supreme Court ultimately held that federal hearing examiners performing agency adjudicatory functions are entitled to absolute immunity from liability for damages for their judicial acts. Butz, 438 U.S. at 514, 98 S.Ct. at 2915.
¶19 The Supreme Court’s reasoning in Butz is equally appropriate in the present case involving DOL hearing examiner Maronick. The proceedings before state hearing examiners are adversarial in nature. See § 2-4-102(4), MCA. In addition, state hearing examiners generally have the power to issue subpoenas, regulate the course of hearings, and provide for the taking of depositions. Section 2-4-611(3), MCA. They also have the authority to render or recommend decisions and must issue findings of fact and conclusions of law in support of their decisions. See §§ 2-4-611, 2-4-614(1)(f), and 2-4-623, MCA; see also § 39-51-2402 and 39-51-2403, MCA. Furthermore, the DOL’s hearing examiners or appeals referees must be impartial, salaried employees. Section 39-51-305, MCA. We conclude, therefore, that the DOL’s hearing examiners perform adjudicatory functions comparable to those performed by judges under similar safeguards. As a result, we further conclude that those hearing examiners are entitled to absolute judicial immunity when acting in their adjudicatory capacities. The question remains whether Maronick was acting in an adjudicatory capacity when he ruled on McGregor’s motion to preclude Steele from representing Log Homes in the contested administrative hearing.
¶20 It cannot be disputed that ruling on a motion in a proceeding to adjudicate legal rights and liabilities is a judicial function whether it is performed by a judge in court or a hearing examiner in a contested administrative proceeding. Nor can it be disputed that Maronick’s act of ruling on a pending motion was within the authority granted him under § 2-4-611(3), MCA, to regulate the course of the proceedings before him. That Maronick enforced § 37-61-201, MCA, against Steele, but not against other CPAs, does not change the fundamental judicial nature of Maronick’s action in ruling on McGregor’s motion. Judicial immunity “is dependent on the challenged conduct being an official judicial act within [the judge’s] statutory jurisdiction, broadly construed.” Dennis v. Sparks (1980), 449 U.S. 24, 29, 101 S.Ct. 183, 187, 66 L.Ed.2d 185, 190 (citations omitted). It is not dependent on acting correctly. Indeed, a person acting in a judicial capacity will not be deprived of immunity because he or she acted maliciously, mistakenly, or in excess of authority. See Stump v. Sparkman (1978), 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339 (citation omitted).
¶21 Steele argues, however, that Maronick’s action of precluding him from representing clients was a legislative, rather than a judicial, action and, as a result, that Maronick is not entitled to judicial immunity. He relies on Supreme Court of Va. v. Consumers Union (1980), 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641, but his reliance is misplaced.
¶22 In Consumers Union, the Supreme Court addressed whether the Virginia Supreme Court (Virginia Court) and its chief justice were immune from suit in a § 1983 action “challenging the Virginia Court’s disciplinary rules governing the conduct of attorneys....” Consumers Union, 446 U.S. at 721, 100 S.Ct. at 1969. The Supreme Court concluded, inter alia, that judicial immunity was not available because the attorney disciplinary rules were propounded in the Virginia Court’s legislative — rather than adjudicative — capacity. Consumers Union, 446 U.S. at 731, 100 S.Ct. at 1974.
¶23 Here, Maronick was not promulgating, or attempting to promulgate, attorney disciplinary rules when he ruled on McGregor’s motion to preclude. Those rules have been promulgated by this Court. Maronick was simply ruling on the merits of a pending motion as a matter of law and, as discussed above, ruling on a motion is a judicial function. Thus, the Consumers Union conclusion on which Steele relies has no application in the present case.
¶24 We hold that Maronick is entitled to absolute judicial immunity from suit for civil damages for the act of ruling on McGregor’s motion to preclude Steele from representing Log Homes.
b. Quasi-judicial Immunity
¶25 The doctrine of immunity evolved to protect not only judges, but also certain participants in the judicial process whose functions are closely associated with those of judicial officers. See Butz, 438 U.S. at 509-10, 98 S.Ct. at 2912-13. Indeed, grand jurors and prosecutors have been extended absolute immunity as “quasi-judicial officers” because their judgments are functionally comparable to those made by judges. The immunity they receive is termed quasi-judicial immunity. Butz, 438 U.S. at 512, 98 S.Ct. at 2913 (citation omitted).
¶26 Quasi-judicial immunity is the same absolute immunity from suit as judicial immunity; it is not a mere defense to liability. Dellenbach, 889 F.2d at 758 (citation omitted). Like judicial immunity, quasi-judicial immunity benefits the public — not the person being sued — by ensuring that quasi-judicial officers exercise their functions unfettered by fear of legal consequences; also like judicial immunity, quasi-judicial immunity extends only to acts within the scope of the actor’s jurisdiction and with the authorization of law. See Turner v. American Bar Ass’n (N.D. Tex. 1975), 407 F.Supp. 451, 482 (citation omitted). To be protected by quasi-judicial immunity, the person asserting the immunity must have acted in a quasi-judicial capacity. See Anderson v. Boyd (9th Cir. 1983), 714 F.2d 906, 909.
¶27 The Named Defendants assert that DOL attorney McGregor is an officer of the court who merely discharged his duty under the Montana Rules of Professional Conduct in notifying the hearing examiner that Steele was practicing law without a license. As a result, they argue that McGregor is entitled to absolute quasi-judicial immunity. We agree.
¶28 Article VII, Section 2(3) of the Montana Constitution expressly authorizes this Court to make rules governing the conduct of attorneys in this state. Indeed, we have interpreted that provision as vesting this Court with the exclusive authority to make such rules regulating attorneys, who are officers of the court. Harlen v. City of Helena (1984), 208 Mont. 45, 49-50, 676 P.2d 191, 193 (citations omitted). We exercised that constitutional authority by issuing our Order Adopting Rules of Professional Conduct in Cause No. 84-303 on June 6, 1985. Our order specifically made the Montana Rules of Professional Conduct (M.R.Prof’l Conduct) applicable to all members of the State Bar, which includes all persons admitted to the practice of law in Montana. See In re Unified Bar of Montana (1975), 165 Mont. 1, 2-3, 530 P.2d 765, 765.
¶29 Rule 5.5(b), M.R.Prof’l Conduct, prohibits an attorney from assisting “a person who is not a member the bar in the performance of activity that constitutes the unauthorized practice of law.” McGregor is an attorney subject to the Rules of Professional Conduct. It was McGregor’s opinion that Steele’s representation of Log Homes at the DOL hearing would constitute the practice of law by Steele, who is not an attorney. Thus, as McGregor saw it, such representation by Steele would constitute the “unauthorized practice of law” as that phrase is used in Rule 5.5(b), M.R.Prof’l Conduct.
¶30 Under these circumstances, attorney McGregor was required by Rule 5.5(b) to refrain from assisting Steele in what McGregor perceived to be the unauthorized practice of law. He met that court-ordered obligation by moving to preclude Steele’s representation of Log Homes. His motion was within his jurisdiction as a lawyer and authorized by our order promulgating the conduct rules and, specifically, by Rule 5.5(b), M.R.Prof’l Conduct. We conclude that McGregor was acting as an officer of the court when he moved to preclude Steele from representing Log Homes and, therefore, that his motion was a quasi-judicial act carrying out this Court’s order and directives in an area within our exclusive purview. To conclude otherwise would produce the anomalous and untenable result of subjecting an attorney acting in direct response to an order of this Court to legal consequences. We hold, therefore, that McGregor is entitled to absolute quasi-judicial immunity from suit for civil damages for his action in moving to preclude Steele from representing clients in DOL proceedings.
¶31 Because Maronick and McGregor are entitled to judicial and quasi-judicial immunity, respectively, we hold that the District Court did not err in dismissing Steele’s complaint for failure to state a claim upon which relief could be granted.
¶32 Affirmed.
JUSTICES NELSON, HUNT and REGNIER concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Phillip Earnest Keating appeals his conviction, by jury trial in the First Judicial District Court, Lewis and Clark County, of two counts of possession of dangerous drugs (one felony and one misdemeanor), and two counts of misdemeanor possession of drug paraphernalia. We affirm.
¶2 The issue is whether the District Court erred in denying Keating’s motion to suppress evidence.
¶3 At 3:30 a.m. on June 10, 1995, a Helena, Montana, city police officer on routine patrol noticed a small pickup truck with its dome light on and passenger door open parked next to Uncle Pete’s Pawn Shop. The officer pulled over to investigate. While he was doing so, a man walked out of the pawn shop holding several fishing items. Recognizing the man as Fabian Gong, who was then under the supervision of a local probation officer, the police officer asked him what he was doing. Gong replied that he was doing his laundry.
¶4 A second Helena police officer arrived. Gong, who appeared worried and near tears, then told the officers that he worked at the pawn shop and had a key. He said that he and the owner, Phillip Keating, were doing inventory. Under the circumstances, the second officer decided to verify Gong’s statement. He went to the open front door of the pawn shop and identified himself loudly as a police officer. He then entered the store, in which an overhead light was turned on, with his gun drawn and a flashlight in his other hand. As he entered, he noticed a male whom he recognized as Keating standing behind the counter with his back toward the door.
¶5 Keating turned around with a semiautomatic pistol in his hand, aiming it at the police officer. He loudly ordered the officer to leave the store because he had no right to be there. Keating continued to shout at the officer for several minutes while the officer repeatedly ordered Keating to put the gun down. Finally, Keating walked out from behind the counter and knelt down in compliance with the officer’s orders. Once Keating was on the floor, a third officer who had arrived on the scene handcuffed him. Meanwhile, outside, Gong had again changed his story about what he was doing at the pawn shop at 3:30 a.m., now explaining that he and Keating were gathering items for a flea market sale they were having the next morning.
¶6 One of the officers conducted a protective sweep of the premises, looking for other persons and for weapons. He found Keating’s pistol on a counter. Also on the counter were two razor blades and a scale with a white powder residue and what appeared to be marijuana debris in the tray. The officers found a four-inch long plastic straw in the left front breast pocket of Keating’s jacket. Keating, with whom all of the officers were acquainted, was behaving out of character, “very hyper” and “very agitated.”
¶7 Keating was transported to the local hospital where, pursuant to a warrant, his blood was tested for drugs. He was charged with felony assault and four drug offenses: misdemeanor possession of dangerous drugs (marijuana), felony possession of dangerous drugs (methamphetamine), and two counts of misdemeanor possession of drug paraphernalia (the scale and the straw). The jury was unable to reach a verdict on the felony assault charge but found Keating guilty on all four drug charges.
DISCUSSION
¶8 Did the District Court err in denying Keating’s motion to suppress evidence?
¶9 Before trial, Keating moved the District Court to suppress all evidence found within Uncle Pete’s Pawn Shop and to dismiss the charges against him. His motion was based upon his argument that his arrest was made without probable cause and in violation of his statutory and constitutional rights; that a search was illegally conducted and that it was conducted without probable cause, without a search warrant and in violation of his statutory and constitutional rights; and that exigent circumstances did not justify the police officers’ entry into his place of business.
¶10 Keating’s trial counsel acquiesced in the court’s decision to consider the suppression issue based on the documents filed with the District Court, which consisted of police reports and the parties’ briefs. Based upon its review of those documents, the court found that there was probable cause for the officers to believe that a burglary was going on at Uncle Pete’s Pawn Shop and that it was reasonable for them to enter the building in order to protect the owner’s property. The court held that the police reasonably believed that a burglary was in progress at the pawn shop and that their subsequent actions were reasonable and appropriate under all the facts and circumstances. After the decision was rendered, Keating moved for reconsideration and for an evidentiary hearing. The court’s refusal to grant that motion is the basis for this appeal.
¶11 This Court’s standard of review of the denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether the findings were correctly applied as a matter of law. State v. New (1996), 276 Mont. 529, 533, 917 P.2d 919, 921.
¶12 In general, a criminal defendant is entitled to a hearing on a suppression motion. See City of Helena v. Lamping (1986), 221 Mont. 370, 719 P.2d 1245. However, no evidentiary hearing is required on a motion to suppress when the parties have stipulated to the facts. State v. Chatriand (1990), 243 Mont. 375, 378, 792 P.2d 1107, 1109. In his motion for reconsideration, Keating did not identify any facts which might affect the validity of the court’s ruling.
¶13 Keating now asserts that he pointed out, in both his motion to suppress and his motion for reconsideration, contested issues of fact which made it necessary to hold an evidentiary hearing. For one, he states that the police “knew” that Gong was assisting him with inventory prior to entry into the pawn shop and that the pickup truck outside the pawn shop belonged to him. But there is nothing to indicate that Gong told the officers, or that they were otherwise aware before they entered the pawn shop, that the pickup belonged to Keating, who had recently purchased it used. Also, as described above, Gong’s statements about what he was doing at the pawn shop at 3:30 a.m. were inconsistent.
¶ 14 Keating further asserts that before the police entered the pawn shop, he yelled out, “whoever is out there stay out, I’ve got a gun.” While he so testified at trial, this information was not before the court when it decided the motion to suppress. Moreover, as with his claim that he was blinded by the officer’s flashlight when the officer entered his store, Keating does not explain what effect a shouted threat from an unidentified person would have on a determination of whether the officer was justified in entering the pawn shop.
¶15 The propriety of the denial of the motion to suppress must be based upon the factual evidence before the District Court when it decided the motion. In State ex rel. Zander v. District Court (1979), 180 Mont. 548, 553, 591 P.2d 656, 659, this Court held that a warrantless entry is appropriate under the exigent circumstances doctrine when prudent officers are warranted in their belief that a felony has been attempted or committed and in concluding that a prompt entry was necessary to protect property and to detect any suspect inside. Further, any items incidentally discovered in plain view can be seized without a search warrant.
¶16 In Zander, a neighbor reported that someone was tampering with the kitchen window in the Zanders’ trailer home. A police officer dispatched to the residence confirmed with the neighbors that the Zanders were not home and that the door was always locked if they were away. The officer noticed a light on in the trailer, but could see no one inside and no signs of forced entry. He tested the door and found it unlocked. When no one answered his knock, the officer entered and began searching for a possible burglar. In his search of the trailer, he discovered marijuana plants growing in a room where a light was on. This Court held that the officer’s entry into the trailer was proper and justified, and concluded that the discovery of the marijuana plants was lawful under the plain view doctrine. Zander, 180 Mont. at 553, 591 P.2d at 659.
¶17 This Court has recently reaffirmed that when officers acting on probable cause and good faith reasonably believe from the totality of the circumstances that the nature of the crime or characteristics of the suspect pose a risk of danger to the arresting officer or third persons, exigent circumstances justify a warrantless entry, search, or seizure of the premises. State v. Wakeford, 1998 MT 16, [287 Mont. 220], 953 P.2d 1065. In Wakeford, we upheld a warrantless entry into a motel room. Police investigating a report that an occupant of the room was possibly suicidal had heard two people arguing inside, a male and a female. Wakeford answered their knock, holding the door only slightly ajar. He was sweating and breathing heavily, his eyes were dilated, and his hands were hidden. While he admitted that he had been fighting with a woman inside the room, he refused to allow the officers to check on her safety. The officers’ subsequent entry was justified under the exigent circumstances doctrine because it was necessary to check on the female’s safety and to see if Wakeford had a gun in his hand. Drug paraphernalia which the officers thereafter discovered in plain view within the room was admissible into evidence under the plain view doctrine despite the absence of a search warrant. Wakeford, ¶ 27.
¶ 18 In this case, the evidence before the court in relation to the motion to suppress consisted of an affidavit in support of a subsequent application for a search warrant and police reports, including three written reports of the incident written by the three police officers involved. One officer documented the following reasons justifying the initial entry: “the involved suspicious vehicle with vehicle door nearest business in open position, time frame involved being 0330 Hrs., which is a normally ‘closed’ hour for this business, individual identified as Fabian Gong exiting business with merchandise in hand and entry door to business in open position.”
¶19 Other police reports filed with the court documented that Helena police officers had responded to burglar alarm calls at Uncle Pete’s in the past, and that Keating had filed complaints about crime in the neighborhood. When he was found outside the pawn shop, Gong appeared worried and near crying and gave several different stories as to what he was doing. The police officers’ reports document the following additional reasons justifying a “sweep” of the store: when he finally came out from behind the counter, Keating did not hand over (or have on his person) the gun with which he had threatened the uniformed officers; Keating’s behavior (he “appeared to be pacing rapidly in the counter area, yelling back towards officers irrational statements and unintelligible statements”); and, before he gave up, Keating “ran to the west side of the counter. It appeared that Keating was attempting to conceal something.” The scale was discovered in plain view on the counter.
¶20 In denying the motion to suppress, the District Court wrote:
The officers were faced with an individual with a known criminal record leaving a business at 3:30 a.m. He had a suspicious story and appeared near tears to the officers. The officers then noticed that the door of the business was open. The officers certainly had every right to enter the building to make sure that it was secure and that no burglary was going on. These officers would certainly be under a great deal of criticism if they had merely closed the door and walked away without any further investigation.
The facts stated above by the District Court are supported by substantial evidence and are not otherwise clearly erroneous.
¶21 In further applying the exigent circumstances doctrine, the District Court said:
Here, the officers could certainly prudently believe that a felony had been, or was being, committed at this place of business. This is near an area where the police have had many reports of criminal activity; it is 3:30 a.m.; they have an individual coming out of a store carrying items that certainly seem strange for one going on a laundry trip; and they have the door of the building left wide open. It was certainly reasonable for the officers to go inside.
Further, once the officers were confronted by Keating pointing a gun at them, they were certainly well within their rights to take protective measures and to ultimately secure Keating. They had a right to go pick up the gun that Keating was pointing at them and the evidence that was seized thereafter, the scales and the residue thereon, were in plain sight.
We agree with the District Court. We hold that the Helena police officers were justified by the exigent circumstances in making a warrantless entry into Uncle Pete’s Pawn Shop and in then conducting a plain view sweep of the shop after Keating yielded to them. The District Court did not err in denying the motion to suppress evidence seized from the pawn shop.
¶22 Affirmed.
JUSTICES REGNIER, NELSON, LEAPHART and HUNT concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal from a January 7,1997 order of the Thirteenth Judicial District Court, Yellowstone County, dismissing with prejudice the complaint of Dan Eddleman and James D. Slack (Plaintiffs) filed against Aetna Life Insurance Co. (Aetna) on the ground that Plaintiffs failed to file their return of service of summons within the three year period specified by Rule 41(e), M.R.Civ.P. We affirm.
Background
¶2 Plaintiffs commenced their action with the filing of their complaint on November 12, 1992, claiming that Aetna had violated statutory rights of first refusal allegedly granted to Plaintiffs under §§ 25-13-901 through -904, MCA. Summons was issued April 14, 1993. Thereafter, and despite Plaintiffs’ Response to Rule 7 [of the Rules of Practice of the Thirteenth Judicial District Court] Order on May 14, 1993, that “the summons and complaint in this case will be served on defendant within the next 30 to 60 days,” the case languished.
¶3 On November 9, 1995, the court, pointing out that no proceedings had been taken in the action for two and one-half years, served Plaintiffs’ counsel with notice that, absent a showing of good cause, the action would be dismissed within ten days. Plaintiffs caused their complaint and the summons to be served on the Montana Commissioner of Insurance, Aetna’s statutory agent for service of process, on November 13,1995, at 5:30 p.m. Plaintiffs filed their return of service of process with the Yellowstone County Clerk of the District Court on November 20, 1995. On November 28, 1995, the court entered its order dismissing Plaintiffs’ complaint on the merits. However, the court vacated this order on January 12,1996, on the Plaintiffs’motion representing that the summons and complaint had been served on November 13, 1995, and the return of service had been filed on November 20, 1995, eight days prior to the court’s order.
¶4 Aetna moved to dismiss on January 23, 1996, for untimely service of process under Rule 41(e), M.R.Civ.P. After briefing, the court denied Aetna’s motion on July 24,1996, ruling that process was served within three years of filing the complaint and that, under our decision in Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129, the filing of the return of service with the clerk of court was simply a ministerial act which did not affect the timeliness of service of process for Rule 41(e), M.R.Civ.P., purposes. Aetna filed its answer on September 3,1996. However, on December 18, 1996, Aetna moved the court to reconsider its July 24, 1996 order on the basis of our decision in Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, which overruled Livingston. Aetna’s motion was supported by a brief.
¶5 Plaintiffs filed a written objection to Aetna’s motion on January 9, 1997. It is worthy of note, however, that Plaintiffs’ objection, less than a page long, simply stated that they were entitled to rely on the law at the time process was served and that Aetna’s motion for reconsideration was not timely. They filed no supporting brief or memorandum of law; they cited no authority whatsoever to the court; they did not develop any argument in support of their position.
¶6 The court granted Aetna’s motion to reconsider and on January 7,1997, ordered Plaintiffs’complaint dismissed with prejudice. Plaintiffs timely appealed.
Issue
¶7 Did the District Court err in dismissing Plaintiffs’ complaint?
Discussion
¶8 A district court’s determination that a complaint must be dismissed for failure of the plaintiff to comply with Rule 41(e), M.R.Civ.P. is a conclusion of law. See Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 366, 865 P.2d 264, 266; First Call, Inc. v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 426, 898 P.2d 96; Haugen, 279 Mont. at 5, 926 P.2d at 1366. Our review of the District Court’s conclusions of law is plenary. We simply determine whether the court’s interpretation of the law is correct. First Call, 271 Mont. at 426, 898 P.2d at 96 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).
¶9 Rule 41(e), M.R.Civ.P, provides in pertinent part:
all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. [Emphasis added.]
In Haugen, we held that the filing of proof of service with the clerk of court is not simply a ministerial act and that the rule clearly and unequivocally requires the dismissal of lawsuits when the return of service is not filed with the clerk of court within three years after the commencement of the action. Haugen, 279 Mont. at 6, 926 P.2d at 1366-67.
¶10 In the case at bar it is undisputed that the return of service of process was not filed with the clerk of the district court within three years after the commencement of Plaintiffs’ cause of action on November 12, 1992, as required by Rule 41(e), M.R.Civ.P. To the contrary, the record clearly reflects that the return of service was filed with the clerk on November 20,1995, some three years and eight days after commencement of the action. Accordingly, under the plain language of Rule 41(e), M.R.Civ.P, as interpreted by our decision in Haugen, the trial court properly dismissed Plaintiffs’ complaint with prejudice.
¶ 11 Notwithstanding, Plaintiffs argue on appeal that the court’s dismissal of their complaint deprived them of procedural due process under Article II, Section 17 of the Montana Constitution because they relied on our decision in Livingston. Under Livingston, we determined that filing proof of service is “simply a ministerial act” and failure to file within three years of the commencement of the action did not require dismissal of the complaint. Livingston, 239 Mont. at 513, 781 P.2d at 1131 (overruled by Haugen, 279 Mont. at 6, 926 P.2d at 1364). We note, however, that this argument was not raised by the Plaintiffs in the District Court. Accordingly, we decline to address it on appeal. Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244 (a constitutional issue is waived if not presented at the earliest opportunity) (citing Johnson v. Doran (1975), 167 Mont. 501, 511, 540 P.2d 306, 311; Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; and Union Interchange, Inc. v. Allen (1962), 140 Mont. 227, 370 P.2d 492).
¶12 Plaintiffs also argue that our decision in Haugen, should not be applied retroactively. Aside from the fact that Plaintiffs also failed to make, much less develop, this argument in the District Court, this issue was discussed at length and decided against Plaintiffs’ position in Haugen. See Haugen, 279 Mont. at 7-9, 926 P.2d at 1367-69. Accordingly, we decline to discuss this argument further. See Matter of R.B.O. (1996), 277 Mont. 272, 283, 921 P.2d 268, 274.
¶13 We hold that the District Court did not err in dismissing Plaintiffs’ complaint with prejudice. Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY and REGNIER concur.
. We note that the Disposal of Foreclosed Agricultural Land Act terminated June 30. 1996. See Sec. 6, Ch. 472, L. 1987.
|
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MR. CHIEF JUSTICE’ BRANTLY
delivered the opinion of the court.
Application for writ of mandamus. From the affidavit for the writ we gather these facts: On June 17, 1916, in an action tried in the district court of Fergus county by Hon. Roy E. Ayers, wherein one H. I. Slack was plaintiff and D. E. Brown, the relator herein, was defendant, the plaintiff recovered judgment. On June 21 the formal judgment was signed by the judge, and on the following day was delivered to the clerk who, over his signature by one of his deputies, indorsed thereon the following: “Filed June 22, 1916.” Above this indorsement was written at the same time the word “Entered.” On June 23 the clerk made up and marked “filed” the judgment-roll as required by the statute. (Rev. Codes, sec. 6806.) On that day the judgment was recorded in the judgment-book and the appropriate memoranda made upon the judgment docket. On the same day defendant’s notice of intention to move for a new trial was served upon counsel for plaintiff, defendant’s counsel expressly waiving notice of entry of judgment and stating that the motion would be made upon the minutes of the court and a bill of exceptions thereafter to be prepared and served. Service was accepted by counsel for plaintiff without objection or reservation. Formal notice of the entry of judgment was given by counsel for plaintiff on June 24. Extensions of time in which to prepare and serve the bill were granted by the court. Within the time so extended the draft of the proposed bill was served. Counsel for plaintiff proposed amendments. The draft of the bill and the amendments were lodged in the office of the clerk for the judge for settlement. Accompanying the amendments was the following reservation: “Now comes the plaintiff above named and expressly reserving to himself all right to object to the settlement and allowance of defendant’s proposed bill of exceptions herein, and without waiver of any right to object to the said proposed bill of exceptions or the settlement thereof, now proposes to the defendant’s proposed bill of exceptions the following changes and' amendments, to-wit, ’ ’ etc. The settlement of the bill having been brought on for hearing on January 31, 1917, counsel for plaintiff appeared specially, and objected that the court was without jurisdiction because the notice of intention had been served and filed prior to the entry of judgment instead of afterward, as provided by the statute. (Rev. Codes, sec. 6796.) In support of the objection, counsel presented the affidavits of one of the clerk’s deputies and of a recording clerk employed in the office, from which it appeared that the notice of intention with proof of service was filed in the forenoon of June 23, and that the judgment was formally spread upon the judgment-book in the afternoon of that day. The court sustained the objection, and entered an order refusing to settle the bill. On March 29 counsel for defendant moved the court for a reconsideration of its order. On August 29 the court, having had the matter under advisement until that time, denied the motion. Counsel for defendant thereafter, on October 1, brought on for decision the motion for a new trial as based on tbe minutes of tbe court. This the court by an order made on January 19, 1918, refused to consider for tbe same reason as tbat stated in tbe order of January 31, 1917. On May 27 tbe court refused an application for a settlement of a statement of tbe case embodying tbe minutes of tbe court. At tbe same time it again refused to determine tbe motion for a new trial. Tbe purpose of this application is to compel Judge Ayers to settle relator’s- bill of exceptions and to bear and dispose of his motion for a new trial. In response to tbe alternative writ, tbe defendant court appeared by counsel, and moved to quash it and dismiss tbe proceeding on tbe grounds that the facts stated do not warrant tbe relief demanded, and tbat the relator was guilty of inexcusable delay in applying for tbe writ. In support of tbe motion counsel presented an elaborate brief, but, after careful consideration of it, we think tbe motion should be denied, and tbat tbe writ should be made peremptory.
The service'of tbe notice óf intention was timely. The relator was not required to wait for formal notice of the entry of judgment. Tbe provision of the statute (Rev. Codes, sec. 6796) tbat tbe party intending to move for a new trial must give notice of intention within ten days after notice of entry of judgment is clearly intended for tbe benefit of the moving party. Hence be may waive the requirement of formal notice and proceed without it (Rev. Codes, see. 6181; Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469). Nor do we think the notice abortive because it was served and filed before tbe judgment was actually spread at large upon tbe judgment-book. It is the duty of tbe clerk to enter a judgment as soon as it is lodged with him for that purpose, and the presumption tbat he has done so should be deemed conclusive for all purposes except when a question of priority of substantial right arises, rendering necessary an inquiry into tbe order of sequence of events occurring on tbe same day. (Kelly v. Independent Pub. Co., 45 Mont. 127, Ann. Cas. 1913D, 1063, 38 L. R. A. (n. s.) 1160, 122 Pac. 735.) Here no question of priority arises, but one as to the regularity of procedure only. In such a case the court ought not to take notice of fractions of a day to reject jurisdiction of a motion for a new trial, and thus defeat the moving party, but indulge the presumption that the entry of judgment and the service of notice had taken place in regular sequence. The court should have disregarded the affidavits presented in support of the objection, settled the bill, and determined the motion on its merits.
The contention that the relator was guilty of laches is without merit. Although his various applications to the trial court to have the bill of exceptions and statement settled and the motion for a new trial disposed of were futile, the fact that he made them and pressed them upon the attention of the court relieves him of the charge. It is therefore ordered that the alternative writ be máde peremptory.
Mr. Justice Sanner and Mr. Justice Holloway concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Certiorari to the district court of Silver Bow county. On October 22, 1912, Sarah A. Pryor, a resident of Silver Bow county, was adjudged by the district court of that county to be incompetent, and by the same court the relator was appointed guardian of her person and estate. Having qualified as provided by law, the' relator entered upon a discharge of his duties and continued therein under the direction of the court until the death of his ward, which occurred on December 7, 1917. She left a will executed on June 8, 1908, in which the relator was named executor. On January 12, 1918, the will was admitted to probate, and the relator was appointed executor and assumed the discharge of his duties as such. On May 18, 1918, the relator presented for settlement his final report and account in the guardianship proceeding. The court set it for hearing on June 1. The hearing having been continued from time to time, was finally had on July 12, and resulted in a final decree approving and settling the account and directing the relator to assume possession and control of the estate as executor. On September 10 the court made and entered an order setting aside the decree1 and directing the matter of settlement of the account to be reopened and placed on the calendar to be set for hearing at some future time. Thereupon the relator instituted this proceeding to have the order annulled as in excess of jurisdiction.
It does not appear, from the certified copy of the1 record returned in obedience to the writ, on what ground the district court set aside the decree of settlement. Nor does it appear that this action was had in response to a motion by anyone or that the relator had notice or was present. Apparently the court set aside the decree on its own motion.
In his general report of the condition of the estate accompanying the account, the guardian set forth a schedule of the property remaining in his hands, which consisted of a small sum in cash and undivided interests in six mining claims situate in Silver Bow county, which in the original appraisement of the ward’s estate were valued in the aggregate at $96,250; the report reciting that the guardian had executed a lease of these interests subject to the approval of the court, by the terms of which one Tinkler, a resident of Silver Bow county, had been given an option to purchase said interests for the sum of $75,000, the payments to be made in installments as therein provided, in case Tinkler concluded to exercise his option. He also set forth that he had incurred an indebtedness to the authorities of the St. James Hospital in Butte for the care and maintenance of his ward, for $4,276.35.
Counsel who appeared for the court state in their brief that the decree of settlement was set aside because the court, after further consideration of it, was of the opinion that in approving the account and accompanying report it had approved the option lease and adjudged the indebtedness incurred by the guardian as a just claim against the ward’s estate, and hence had to this extent exceeded its jurisdiction in making the decree of settlement. This court is not now concerned with the inquiry what consideration moved the court in setting aside the decree, because there is nothing in the record to which we may look to ascertain the theory upon which it proceeded. We' shall therefore consider and determine the single question before us, viz.: Did the court exceed its jurisdiction in setting aside the decree ?
It will be noted that the decree of settlement was in a matter over which the court had jurisdiction (Bev. Codes, sec. 7775) ; therefore, though it may be conceded to have been in some respects erroneous in that it determined matters foreign to what was then before the court, it was not void for that reason. It is true, upon proper application by a party vested with an interest in the estate, the decree of settlement may have been [1, 2] subject to amendment. Courts have the power to amend their judgments to the end that they will express what the court actually decided. This may be done at any time. When the clerk has failed to enter the judgment as pronounced, the court has the power to correct the misprision. (Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950.) But errors into which the court itself falls are judicial errors and cannot be corrected except by the method pointed out by the provision of the statute on the subject, that is, through a motion for a new trial, if such a motion is applicable in the particular proceeding, or on ap peal; in other words, the court cannot upon a change of mind, after having rendered a judgment determining the rights of the parties, set aside such a judgment or modify it so as to alter or change the rights fixed by it as originally made. (Whitbeck v. Railway Cos., 21 Mont. 102, 52 Pac. 1098 ; Ogle v. Potter, 24 Mont. 501, 62 Pac. 920; Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123.) On this subject, Mr. Freeman, in his work on Judgments, says: “The failure of the court to render judgment according to law must not be treated as a clerical misprision. Where there is nothing to show that the judgment entered is not the judgment ordered by the court, it cannot be amended. On the one hand, it is certain that proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature; ought never to be the means of modifying or enlarging the judgment or the judgment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embraces matter which ought clearly to have been so pronounced.” (1 Freeman on Judgments, sec. 70, p. 94.) When the judgment is once rendered, the court loses jurisdiction over the subject matter, other than to see that the proper entry is made by the clerk and that the rights determined and fixed by it are properly enforced.
Decrees in probate proceedings are not, technically speaking, judgments. (Estate of Tuohy, 23 Mont. 305, 58 Pac. 722.) But the mode of review applicable to judgments is by the statute made applicable to many of them (Rev. Codes, sees. 7096-7098), and a trial court has no greater power over these than it has over formal judgments.
We express no opinion at this time upon the question whether the order complained of is or is not in any respect subject to amendment. This question is not before us. We leave it to be determined by the trial court upon a proper application to it.
The court was without jurisdiction to set aside the decree, and its order in this behalf is therefore annulled.
Mr. Justice Holloway concurs.
Mr. Justice Pigott did not hear the argument and takes no part in the foregoing decision.
|
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] |
PER CURIAM.
— Upon motion of the appellant herein and for good cause shown, the appeal in the above-entitled cause is this day dismissed.
|
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PER CURIAM.
— Upon motion of the appellant herein the appeal in the above-entitled cause is hereby dismissed.
|
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] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
This is an appeal from an order of the district court for Granite county in probate cause No. 905, entitled: “In the Matter of the Liquidation of Courtney Bros., Inc., a dissolved corporation,” directing that letters of administration or of trust upon the estate of the said dissolved corporation issue to the appellants Maurice Courtney, H. J. Courtney and Leo H. McClellan, its directors at the time of its dissolution.
The record shows that on March 24,1938, pursuant to a resolution by the stockholders on September 20, 1937, a petition was filed by the appellants in civil cause No. 2131 in the same court, praying for the dissolution of the said corporation under the provisions of Chapter 101 of the Code of Civil Procedure (secs. 9922 to 9928, inclusive), and reciting, among other things, “that all claims and demands against said corporation have been fully satisfied and discharged,” as required by the statute. On the same day the appellants Maurice Courtney as president and Humphrey J. Courtney as secretary of the corporation executed on its behalf an instrument purporting to convey its property to the said Maurice Courtney and Humphrey J. Courtney, for one dollar ‘ ‘ and other valuable considerations, ’ ’ under the authority of a resolution of the board of directors, recited therein, stating that “it is for the best interests of the said corporation to sell and convey” all the company’s property to them. The Courtneys were equal owners of all the outstanding stock except for one share held by Leo H. McClellan, the other director. On May 3, 1938, the court made findings to the effect that the appellants were the present directors, that notice of the hearing had been duly published, that no objection had been filed, and that all the allegations of the petition were true, and thereupon entered a decree dissolving the corporation.
Subsequently the respondent, A. D. Stoddard, filed in the district court in the above-mentioned probate matter No. 905, a petition and affidavit for order to show cause, alleging that the decree of dissolution had been rendered in the above civil cause No. 2131, that he was a creditor of the corporation, and that the said directors had failed and neglected to institute and prosecute proceedings in probate to execute their trust as trustees for the creditors and stockholders of the corporation. The prayer of the petition was that an order issue, requiring the directors to show cause why they should not proceed forthwith to the liquidation of their trust. The directors interposed a motion to quash and set aside the order to show cause, and after argument thereon the district court on January 5, 1939, entered' an order dismissing respondent’s petition.
The respondent thereupon filed in this court an original proceeding for a writ of supervisory control to require the judge of the district court to revoke the last-mentioned order and to proceed to hear relator’s application. On March 7, 1939, this court rendered its decision denying the application for writ of supervisory control for the reason that “under the statute in question relator’s remedy is by a petition in probate for the appointment or confirmation of the directors as trustees, or, upon their refusal or inability to qualify and act as such, then for the appointment of some other trustee or trustees who will proceed in accordance with the statute.” (State ex rel. Stoddard v. District Court, 108 Mont. 51, 88 Pac. (2d) 34.) In other words, the basis of our decision was that under the statute (sec. 6011, as amended by Chap. 198 of the 1937 Session Laws) the directors could not be forced to act as trustees, as relator sought to do, since if they refused to act the remedy was to have other trustees appointed.
Subsequently the respondent filed in the said probate cause No. 905 in the district court a petition reciting the matters above mentioned, with the further allegation that he was a creditor of Courtney Bros., Inc., in the sum of $6,177.95 on a contract for personal services rendered, and praying for the appointment or confirmation of the appellants as trustees for the creditors and stockholders, or upon their refusal or inability to qualify and act, then for the appointment of other trustees who would act as such.
The appellants filed an answer, admitting most of the allegations of the petition with the exception of respondent’s claim against Courtney Bros., Inc., and alleging that they were ready and willing to act as trustees “if the law would so provide, or permit, and if there were creditors, ’ ’ but setting forth the proceedings in civil cause No. 2131, and alleging that by reason thereof respondent was estopped to assert his claim as a creditor of the corporation.
By an agreed statement of facts the question was reduced to one of law, and the trial court on April 15, 1939, entered the order now appealed from.
Appellants contend that since, in order to decree the dissolution of the corporation under Chapter 101 of the Code of Civil Procedure, it was necessary for the court to find' “that all claims and demands against the corporation have been satisfied and discharged, ’ ’ the decree was res judicata as to respondent’s claim. They contend further that as to corporations so dissolved, section 6011, Bevised Codes, was always inapplicable both before and after its amendment, since there could be no creditors for whom the directors could become trustees. In the latter contention appellants overlook the fact that under section 6011, the directors become trustees for stockholders as well as creditors.
Appellants’ contentions cannot be sustained. In Crossman v. Vivienda Water Co., 150 Cal. 575, 89 Pac. 335, 336, it was argued that voluntary dissolution statutes identical with the ones here in question were unconstitutional, “in that the only notice required is by publication, and the opportunity of creditors to recover is thereby restricted and the obligation of contracts is therefore impaired.” But the court said: “The universally accepted modern doctrine is that the debts of a corporation are not vacated by its dissolution. In the absence of statute, equity treats the surviving assets as a trust fund for the creditors and stockholders, and enables the beneficiaries to reach the same by appropriate procedure. * * * We have such a provision in this state.” (Quoting sec. 400, Cal. Civ. Code.)
Our Code section 6011, prior to its amendment in 1937, was practically identical with section 400 of the California Civil Code, and provided: “Unless other persons are appointed by the court, the directors of any corporation, at the time of its dissolution, are trustees of the creditors and stockholders or members of such corporation, and have full pow55f to settle and liquidate its affairs,” etc. By the amendment of 1937 the legislature provided: “Such trustees shall settle the affairs of such corporation, liquidate its assets and apply the proceeds of such liquidation to the payment of the expenses of such trustees, to the payment of its debts and other obligations, and distribute any surplus remaining to the stockholders of such corporation, in a proceeding in the district court,” etc. “The procedure provided by the code of civil procedure for the probate of estates of deceased persons shall be followed in such proceeding, except that notice to creditors shall be published in each county in the State of Montana in which any real estate owned by such corporation at the time of its dissolution shall be situated, and that the time for presentation of claims shall in all cases be four (4) months”' after the first publication of notice, etc.
It seems apparent that the chief purpose of the amendment was to prevent just such procedure as that by which the directors in this instance have attempted to cut off: the assertion of creditors’ claims by secret or summary proceedings and to dispose of the assets by an unauthorized conveyance. It was intended to safeguard the rights of all creditors against such action by stockholders and directors, and to safeguard the rights of stockholders against the latter. There is nothing in the statute to suggest that these rights could nevertheless be evaded by following the dissolution procedure of Chapter 101, providing the creditor did not oppose the dissolution. There was no reason why he should have opposed it, since under the statutes enacted at the same time and to be construed in pari materia, dissolution could in no way affect his claim.
While it is often held that a judgment is res judicata as to all matters necessarily determined, that principle would not on reason seem applicable as against those served by publication but having no possible objections to the remedy sought by the proceedings. But it is unnecessary to examine the matter further, since section 6013, Revised Codes, adopted at the same time as the original section 6011 and Chapter 101, effectively negatives any possibility that the dissolution proceedings could have made respondent’s claim res judicata. That section provides in part: “nor does the dissolution of any such corporation, take away or impair any remedy given against any such corporation, * * * for any liability which has been previously incurred. ’ ’
The attempted conveyance of the corporation’s property prior to the dissolution decree was of course invalid, since the directors have no authority to dispose of the property of a solvent corporation except in furtherance, and in the ordinary course, of its business. (Hanrahan v. Andersen, 108 Mont. 218, 90 Pac. (2d) 494.)
The order appealed from is affirmed.
Associate Justices Morris, Angstman, Erickson and Arnold concur.
|
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
These are appeals by plaintiffs from judgments in favor of defendant for costs in two separate actions after defendant’s demurrers to the complaints were sustained. The two cases were consolidated on appeal. The sole question presented is whether the complaints state facts sufficient to constitute causes of action against defendant Intermountain Transportation Company.
The complaints are based upon injuries to and death of Sam Pierre and are identical except as to damages. What we have to say of one complaint applies equally to the other. The important allegations are these: The Intermountain Transportation Company is engaged in operating bus lines for the transportation of passengers for hire. It has maintained a depot near the center of the business section of the town of Arlee for the convenience of intended passengers. It operates a bus line through the town of Arlee on United States Highway No. 93, a much used and traveled highway. The speed limit for automobiles in the town was 25 miles per hour, of which the public was advised by road signs plainly visible.
It is alleged that on the 12th day of July, 1937, Sam Pierre “accepted the invitation of the defendant Intermountain Transportation Company to become a passenger on one of its busses from the town of Arlee to the city of Missoula, during the forenoon of said day and in broad daylight; that in preparing to board said bus, the said Sam Pierre tendered a cash fare to the operator thereof, and said operator * * * directed the said Sam Pierre to cross the highway and obtain a ticket at the depot,” and that while so doing Pierre was struck by an automobile driven by Robert Scheffels, sustaining injuries from which he died that evening.
The complaints specify negligence on the part of the transportation company because it: “a. * * * Stopped the bus * ÍS * on the highway in front of the depot * * * on the main traveled portion of said highway number 93 in such manner that it obstructed traffic moving in a southeasterly direction on said highway, while discharging and taking on passengers. b. * * * Used said highway for the taking on and discharge of passengers, thereby obstructing the same, when there was ample space, at said time and place, by the side of the depot of said defendant, for such purpose, without obstructing said highway, c. * * * Parked and stopped the defendant corporation’s bus so close to the center of said highway and the principal traveled portion thereof, that it was impossible for Sam Pierre, at said time and place, to see traffic approaching from the northwest without placing himself in a position of danger, d. * * * Refused to accept the cash fare from Sam Pierre, but instead directed him across said highway to purchase a ticket, when from his position in said bus, said operator could observe and did observe, Robert Seheffels, operating his automobile southeasterly on said highway approaching said bus, and by negligently failing to warn Sam Pierre that Scheffels’ automobile was then approaching, when it was evident that the said defendant, Scheffels, was not going to stop his automobile but intended to pass around said bus on said highway. ’ ’ The complaints then proceed to allege wherein Scheffels was negligent in driving into and against Sam Pierre, causing his injuries and death.
The district court in sustaining the demurrer held that the relation of passenger and carrier had not been initiated at the time of the injuries, and that the negligence of the Intermountain Transportation Company alleged in the complaints was not and could not have been the proximate cause of the accident.
While, as above noted, the complaints allege that Pierre accepted the invitation of the defendant to become a passenger, yet it is clear from all the facts alleged in the complaints that the relationship had not in fact arisen at the time of the injuries to Pierre. The defendant expressly declined to accept him as a passenger until he had obtained a ticket. While, generally speaking, the question whether a person is a passenger or not is one of mixed law and fact, yet it is the rule that the question whether certain facts will create the contract relationship of carrier and passenger is one of law. (4 R. C. L. 1029; and see, also, Todd v. Louisville & N. R. Co., 274 Ill. 201, 113 N. E. 95, L. R. A. 1916F, 543.)
The authorities are clear that the relationship of passenger and carrier rests upon contract, express or implied. (See 13 C. J., sec. 1049, and 10 Am. Jur. 27.) While it is not necessary in all cases that a person should have a ticket before he becomes a passenger, yet if that be a requirement on the part of the carrier, the relationship does not exist until the ticket has been purchased. In any event, if a person becomes a passenger without the purchase of a ticket, it must be by reason of the circumstances implying acceptance by the carrier of the passenger after he has placed himself under the care and control of the carrier. (See, generally, 10 Am. Jur. 27, 28.) The trial court was correct in holding that, under the circumstances here involved, the relationship of passenger and carrier had not arisen at the time of the accident in question. It follows that the only duty owing by the carrier to Pierre was that which it owed to any other member of the public.
We then come to the question whether such negligence on the part of the transportation company as that of parking its bus on the traveled portion of the highway and other acts of negligence alleged could be held to have been the proximate cause of Pierre’s death. There are cases, though not identical with this on facts, which point the way to the correct conclusion. In Lewis v. Pacific Greyhound Lines, 147 Or. 588, 34 Pac. (2d) 616, 619, 96 A. L. R. 718, the bus company discharged its passengers by stopping on the paved portion of the highway. The plaintiff in that action was discharged as a passenger at a safe place. He then walked to the rear of the bus and started across the pavement when he was injured by an automobile. The court held that there was no liability on the part of the carrier and based its decision primarily upon the fact that the relationship of passenger and carrier had ceased. The court, however, went on to say: “Assuming, but not conceding, that the defendant bus company was negligent in failing to discharge the plaintiff as a passenger on the west side of the highway' in front of the restaurant or barbecue stand, it is believed that such negligence has no causal connection with the injury sustained. With all deference to those who are of a different opinion, we can reach but one conclusion, viz., that the proximate cause of the injuries of which plaintiff complains was either the negligence of the driver of the car which struck him or his own negligence in failing to exercise due care to avoid being injured while undertaking to cross the highway.” The case just cited was by a divided court. The dissenting Justices took the view that since the accident happened at night when it was dark, and since plaintiff had on the day previously taken one of defendant’s stages, and since on that occasion it stopped in front of its ticket office on the westerly side of the highway instead of the easterly side, the carrier was under obligation to warn the passenger of the fact that in order to get to the depot he would have to cross the highway. If we accept the opinion of the dissenting Justices as the better view as applied to the facts of that case, it would not aid plaintiffs here. Under the facts here presented plaintiffs do not even come within the rule stated by the minority view in that ease. Here the accident happened in broad daylight and the decedent knew, or should have known, that he was crossing a well-traveled highway at the time in question.
The conclusion reached in the above case was followed, under very similar facts, in the case of Corrigan v. Portland Traction Co., 157 Or. 496, 73 Pac. (2d) 378, 379. The court in that case quoted from the case of Waldron v. Southwestern Bus Co., 42 Ohio App. 549, 182 N. E. 596, as follows: “ ‘The defendant company, while she [plaintiff] was a passenger, owed her a high degree of care for her safety, but she alighted from the bus in a place of safety and the relation of carrier and passenger thereupon terminated. The proximate cause of her subsequent injury was either her own negligence in walking in front of an approaching automobile, or the negligence of the operator of such automobile, and the defendant was in no sense responsible for the injury resulting therefrom. Having discharged the passenger in a place of safety, there could be no causal connection between that act and the injury which she suffered. She was familiar with the surrounding conditions, and the operator of the bus owed no duty to warn her of approaching automobiles.’ ” To the same effect is Williams v. East Bay Motor Coach Co., 16 Cal. App. (2d) 169, 60 Pac. (2d) 320.
A somewhat analogous ease is that of Klovedale v. Ohio Pub. Service Co., 54 Ohio App. 244, 6 N. E. (2d) 995, 996. There, too, it was contended that the bus company was negligent in choosing its place to stop for receiving and discharging passengers, in that it was not done at a place of safety, and, like here, it was maintained that the bus driver saw the plaintiff in a perilous position and made no effort to warn her. The court pointed out that a bus company is different from a railroad company, since they operate their busses over highways over which they exercise no control. The court then said: “Keeping in mind what we have previously stated, it appeals to us with greater force that a street ear company or bus carrier is not bound to warn those seeking transportation of the presence of ordinary street hazards which are well known and apparent to all who will give heed.” In that ease the court pointed out that the plaintiff had not become a passenger at the time she was injured and cited eases sustaining that view. It quoted from the case of Duchemin v. Boston Elev. R. Co., 186 Mass. 353, 71 N. E. 780, 104 Am. St. Rep. 580, 1 Ann. Cas. 603, 66 L. R. A. 980, as follows:
“ ‘It is apparent that a person in such a situation is not in fact a passenger. He has not entered upon the premises of the carrier, as has a person who has gone upon the grounds of a steam railroad for the purpose of taking a train. He is upon a public highway, where he has a clear right to be independently of his intention to become a passenger. He has as yet done nothing which enables the carrier to demand of him a fare, or in any way to control his actions. He is at liberty to advance or recede. He may change his mind, and not become a passenger. Certainly the carrier owes him no other duty to keep the pavement smooth or the street clear of obstructions to his progress, than it owes to all other travelers on the highway. It is under no obligation to see that he is not assaulted, or run into by vehicles or travelers, or not insulted or otherwise mistreated by other persons present. Nor do we think that as to such a person, who has not yet reached the car, there is any other duty as to the car itself, than that which the carrier owes to all persons lawfully upon the street. There is no sound distinction as to the diligence due from the carrier between the ease of a person who has just dismounted from a street ear and that of one who is about to take the car, but has not yet reached it.’ ” (See, also, Louisa Villa v. United Elec. Rys. Co., 51 R. I. 384, 150 Atl. 366, 75 A. L. R. 282.)
Plaintiffs rely upon the case of Atlantic City R. Co. v. Clegg, (3 Cir.) 183 Fed. 216, but that ease involved a railroad company which had control of the premises where the injury occurred, and had control also of the train that caused the injury. It is plain, therefore, that that case is not applicable here.
While, as above stated, the cases relied upon by us are not exactly the same in facts as the ease at bar, yet in principle they sustain our conclusion that where, as here, the relationship of passenger and carrier had not arisen there was no duty on the part of the defendant to warn plaintiff of the ordinary hazard of crossing the busy and well-traveled street in broad daylight; that the negligence of the defendant in parking its bus on the main traveled portion of the highway to receive and discharge passengers and where it would obstruct the vision of one attempting to cross the street in close proximity of the bus, was not the proximate cause of the injuries to and death of Sam Pierre. His injuries and death were caused either by the negligence of Scheffels or by his own negligence.
It follows that the complaints do not state facts sufficient to constitute causes of action against the Intermountain Transportation Company. Accordingly, the judgments must be and are affirmed.
Mr. Chief Justice Johnson, Associate Justices Morris and Erickson and Honorable R. E. McHugh, District Judge, sitting. in place of Mr. Justice Arnold, disqualified, concur.
|
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HONORABLE T. E. DOWNEY, District Judge,
sitting in place of MR. JUSTICE ARNOLD, disqualified, delivered the opinion of the court.
The plaintiff, an owner of a tract of land consisting of 32.6 aeres in the Clinton Irrigation District, brought this action to restrain and enjoin defendants from interfering with any dam, box, gate or other device that he might use to divert and convey water from the district for use upon lands owned by him outside of the district.
The defendants filed an answer and eross-eomplaint. They set up the defense that plaintiff was furnished and was using all the water he could beneficially use upon his lands within the district; that he was wrongfully and without authority diverting and using water from the district upon lands owned by him outside the district; that such diversion by plaintiff so diminished the natural flow of water in the lateral and extension ditches within the district to the lands of defendants Boyd Colvin and Peter Fleming that it caused severe damages to their crops. They further allege that plaintiff was using water from the district upon four separate parcels of land outside the boundaries of the district. They asserted that he was not entitled to the use of any of the water from the irrigation district for use on the lands outside the district and that unless enjoined and restrained he would continue to divert water from the .Clinton lateral and extension ditches and that such diversion of the water would result in great and irreparable damages to the defendants. They asked that plaintiff be restrained and enjoined from using any water whatsoever from the Clinton lateral on any land other than the 32.6 acres owned by plaintiff, and that he be restrained from placing any pipe, dam, metal sheet, or other obstruction of any kind or character in the Clinton lateral for the purpose of diverting the waters therefrom to lands outside the district or from interfering in any manner with the flow of water from the Clinton lateral down to the lands of the defendants.
The cause was tried to the court without a jury, and at the close of the testimony findings of fact and conclusions of law favorable to defendants were made and filed, upon which a decree was entered. The decree by its terms enjoined and restrained plaintiff or anyone in his behalf from diverting or using any water whatsoever from the Clinton Irrigation District on lands owned by plaintiff in section 21 which were outside the district or for the irrigation of any lands other than the 32.6 acres in section 17 of the land owned by plaintiff within the irrigation district.
The essential facts as developed on the trial are as follows: The Clinton Irrigation District was duly created on September 17, 1919. At the time of the organization of this district W. E. Koch, the plaintiff, was the owner of 32.6 acres of land in section 17 which he voluntarily included within the district. It was agreed by all members of the district that the district would build the main canal from the point of diversion from the Missoula River to Smith Creek and to put in a culvert under the Northern Pacific tracks and so connect the main canal with the Clinton lateral. The Clinton lateral was built in 1921 by certain members of the district, including the plaintiff. The owners at their own expense had to provide the means of getting water to their individual lands. An extension ditch was built to the main canal and plaintiff obtained water to irrigate his lands within the district by a lateral from the extension ditch of the main canal. From this extension ditch plaintiff was the first user, defendant Fleming the second, and defendant Willey the third.
Plaintiff Koch is also the owner of land in section 21 which was not at any time included in the district. Koch has for a number of years been using water diverted from the irrigation district for use in irrigating his lands in section 21. He did this by tapping the Clinton lateral with an eight-inch pipe. Plaintiff at this point of diversion constructed a dam and installed a sort of conveyor thereon to carry and force the water through the pipe and unto his lands in section 21, which in evidence has been referred to as the ‘ ‘ Gaffney place. ’ ’ The defendants Boyd Colvin and Peter Fleming are land owners within the district and divert water from the Clinton lateral at a point below where plaintiff diverts water for the irrigation of his land in section 21. The diversion and conveyance of water from the Clinton lateral at this point decreased the natural flow of water in the extension ditch of Fleming and Willey to such an extent that in 1938, during the irrigating season, the crops on the Fleming and Willey lands lying within the district started to burn up because they were not receiving sufficient water for the irrigation thereof. Boyd Colvin and Peter Fleming removed the dam built by Koch at the point of diversion and he thereupon instituted this action.
The evidence further disclosed that plaintiff was diverting water of the Clinton Irrigation District on four different tracts of land outside the district and at the same time was using all the water he .could beneficially use upon his land within the district. The question for determination is, “May a land owner within an irrigation district use all of the water he can beneficially use upon his land within the district and in addition use water from said district upon lands owned by him outside the district?”
It is plaintiff’s contention that under the provisions of section 7202 of the Revised Codes of Montana 1935, he, as a water owner within an irrigation district, has the right to assign any of the water apportioned to him and not required for use upon the land to which said water is apportioned and use the same upon land lying beyond the boundaries of tbe irrigation district.
Section 7202 provides: “The Board of Commissioners shall apportion the water for irrigation among the lands in the district in a just and equitable manner and, the maximum amount apportioned to any land shall be the amount that can be beneficially used on said land, and such amount of water shall become and shall be appurtenant to the land and inseparable from the same, but subject to reduction as hereinafter provided; provided, however, that any water owner of the district shall have the right to sell or assign for one season any of the water apportioned to him, and not required for use upon the land to which such water belongs; ’ ’ etc.
This section clearly provides that an owner of land within a district is entitled to such an amount of water as will adequately irrigate the lands within the district which can be irrigated, and not upon all land therein without regard to irrigability. Therefore the fact that plaintiff may have irrigated but twelve or fifteen of the acres included within the 32.6 acres owned by him does not necessarily mean that he is entitled in addition to the amount which would be required to irrigate the balance of his 32.6 acres. The Board of Commissioners of said district under section 7202 are bound to apportion in a just and equitable manner to all land owners within the district the maximum amount which each can beneficially use upon his lands within the district. When they have so apportioned and allotted the water they have performed their full duties in this respect.
Plaintiff bases his right to divert the water from the district for use upon lands outside the district upon the proviso contained in section 7202. That plaintiff under the facts in this ease is not entitled to assign any of the water apportioned to him, is, we think, very apparent. Fleming and Willey, as land owners within the irrigation district, were legally entitled to a sufficient amount of water to beneficially irrigate their lands within the district. They were supplied by the board and apportioned sufficient water for this purpose and were using the water for the successful irrigation of their lands until the amount of water was materially reduced by the action of the plaintiff in constructing the dam and diverting the water by means thereof. Fleming and Willey as land owners within the irrigation district had vested interests therein and in particular had vested interests in and to the use of the water being supplied and apportioned to them, and an interference with its use certainly was depriving them of their vested rights in the water to which they were legally entitled. Plaintiff by his action in diverting this water usurped and assumed powers that were not vested even in the Board of Commissioners of the district.
In the case of Yaden et al. v. Gem Irr. Dist., 37 Idaho, 300, 216 Pac. 250, which was an action to obtain a writ of mandate to compel the district to deliver water to plaintiff’s land outside of the district and to recover damages for loss of crops as a result of the district’s failure and refusal so to do, the court denied the writ upon the following facts: Plaintiff owned land outside of the district. She had been supplied with water on the land for a number of years by reason of the fact that there was an abundance of water for all lands within the district and because the district lateral and syphon had been constructed over her lands to lands which had been, but were not then, within the district. At some time before the action other lands had been admitted into the district and all waters were needed to irrigate lands within the district. The evidence disclosed that if plaintiff were allowed to continue to irrigate her land from water within the district the lands within the district would be damaged thereby. The court said: ‘ ‘ The ultimate purpose of a district’s organization, under the provisions of the statutes of this state, is the improvement, by irrigation, of lands within the district. The purpose of this organization is not rental, sale or distribution of water. It is authorized to acquire the right to the use of water for the purpose of delivery to settlers within the district. To bond the lands of the settlers within the district to acquire the right to the use of water, and then to deprive them of such right in order that it may be furnished to lands without the district would clearly be taking property of the landowners within the district without due process of law.”
From the pleadings and evidence herein there is no testimony or claim that the plaintiff was not furnished sufficient water for the beneficial use of all the land owned by him susceptible to irrigation within the district. The evidence in this case further discloses that plaintiff never at any time, as he had a right to do, petitioned to decrease the amount of his irrigable acreage within the district, nor did he at any time petition to include within such district the lands owned by him in sections 21 and 16.
In Maclay v. Missoula Irr. Dist. et al., 90 Mont. 344, 3 Pac. (2d) 286, the court in the course of its opinion held, “Certainly, a district with the power only to manage the affairs of the irrigation system, charged with the duty of equitably distributing the waters thereof to the numerous owners of lands and water rights within its borders, can neither consent to the taking, nor be compelled to distribute waters of the system for use on lands outside the district and to which they are not appurtenant, when such use deprives those having vested rights in the waters, of water to which they are legally entitled, and when the use of the rights, used outside the district, would have no such effect if used upon the lands to which they are appurtenant.”
This holding follows that in the Idaho ease quoted herein, and the plaintiff in invoking the provisions of section 7202 of the Revised Codes of Montana, 1935, as his authority for the appropriation of water from the district for use upon lands outside of the district misinterprets the language therein used. From all of the evidence introduced in this case it clearly appears that plaintiff, during all of the time he was diverting and using water outside the district, was also furnished and was using all the water he could beneficially use upon lands owned by him within the district. It further appears that there is not one scintilla of evidence that the land owned by plaintiff within the district was left lying idle or not irrigated during any of the years or at any of the times pertinent to the facts in this case. We therefore hold that plaintiff, being supplied and using within the district all of the water which he could beneficially use upon his lands therein, had nothing to assign and therefore the question of the right of assignment as contained in section 7202 is not herein passed upon.
Rehearing denied September 18, 1940.
It is the opinion of this court that the plaintiff, Koch, in using and diverting the water from the Clinton Irrigation District on lands outside the district, was acting wrongfully and without any right or authority and, as the facts disclosed, was thereby irreparably injuring owners within said district and depriving them of water in which they had a vested right. We therefore hold that the district court in granting a permanent injunction against the plaintiff prohibiting and restraining him from using any of the water of the Clinton Irrigation District upon any lands other than that owned by him within the district ruled correctly, and the judgment of the trial court is hereby affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Ansstman concur.
|
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MR. JUSTICE ERICKSON
delivered the opinion of the court.
An action was brought by the relators in the district court of Lake county to enjoin the defendants G. A. Lensman, P. F. Hern and L. J. Marion, as the board of county commissioners of Lake county, and defendants George E. Sipes and Bessie Sipes, from closing a certain road crossing land belonging to the Sipes. Trial was had before the court sitting without a jury, and a temporary injunction, issued at the time the complaint was filed, was in the judgment of the court made permanent. The appeal is from the judgment.
The errors specified concern alleged error in the findings made by the court, conclusions of law adopted, and in its refusal to make findings submitted by the defendants, and to adopt the conclusions of law offered by defendants. Error is also based on insufficiency of the evidence.
The court in its findings found that the road in question existed as a public highway and granted the relief sought by the relators. It is only necessary to consider one question here, and that concerns the right of relators to maintain the action to enjoin the obstruction of the road in question.
In this action private individuals are seeking to enjoin the obstruction of a road which the complaint charges is a public highway. In order to maintain such a suit the relators must show that they have sustained special damage, different in kind from that suffered by the public at large. (29 C. J. 627.) The relators, to establish this special damage, seek to prove that the only reasonable means of egress from and ingress to their land is by the road obstructed.
Montana has adopted the rule announced by Corpus Juris, in the case of State ex rel. Dansie v. Nolan, 58 Mont. 167, 191 Pac. 150, 152, in the following language: “ It is urged that the wrong, if any, was to the general public, and that relator is not entitled to maintain this action. It would seem, however, that if relator’s land is so situated that he cannot gain ingress and egress without the use of the road, and that it is necessary for him to pass to and from his land in order to care for his sheep and cultivate his land, he would have a special and vital interest in maintaining the road, not shared by the general public. Such is the holding in Highbarger v. Milford, 71 Kan. 331, 80 Pac. 633. He would therefore, in our opinion, be in a position by reason of the special injury to him, to maintain the action.”
The testimony is that there was a road along the boundary lines of the Sipes land, but the court found that it was so far impassable that it did not provide ingress to and egress from relators’ lands. No testimony appears in the record to support the finding of the trial court that the section line road at the time of the trial “could not be considered usable by the public for all purposes of travel,” because “of loose earth, grades, cuts, fills and its unfinished condition. ’ ’ No witness for the relators purports to testify as to the condition of the new road at the time of trial. The witness Lotta Ford had never been over the new road. She said she “thinks” a new road is being constructed, but “I don’t think it is passable.” The witness L. C. Smith testified he had been over it some time in the spring “right after they [the county] worked on it. ’ ’ He said it was passable then only with a high-wheeled vehicle. Neither he, nor any other witness for relators, testified as to its condition at the time of the trial or immediately preceding the trial. These two witnesses for the relators are the only ones who mention the section line road.
Three witnesses for the defense testify concerning that road. Defendant Sipes.testifies that at the time of the trial “the road is passable and a good road at this time.” He says additional work was done on the road after the time Smith said he had been over it, and that when the county finished the road “it was a good graded road,” and that “it compares favorably with any section road in the county. I think it would be called an up-to-grade, a number 1 grade that there is in the county.”
The witness Frank Fancett, a civil engineer and the county surveyor, said: “I would say this road is surfaced in better shape than most of the road leading to it from Proctor,” and that the grades were much less than on many stretches of the road of which this portion is a part. Faucett was speaking of its condition at the time of the trial or just before the trial. Another civil engineer, O. P. Wells, corroborates the testimony of Sipes and Faucett. There is no testimony to contradict it, and there is no testimony to support the court’s finding as to the condition of the section line road.
The section line road, from the testimony, is somewhat hilly and is some 200 feet longer than the trail across the Sipes property, but the test to be applied is not which is better, but whether the section line road is a passable road which provides ready and convenient ingress and egress to the relators. The testimony is that the section line road does provide ready and convenient ingress and egress, and that is sufficient to show that relators have suffered no special damage sufficient to allow them to maintain this action. (State ex rel. Dansie v. Nolan, supra; Hitch v. Scholle, 180 Cal. 467, 181 Pac. 657; Borton v. Mangus, 93 Kan. 719, 145 Pac. 835, L. R. A. 1915D, 142.)
Relators urge that the proceedings establishing the section line road were not had pursuant to the requirements of the statutes and, therefore, it is not a public highway and so could be closed in the future so as to deprive them of means of ingress and egress. The trial court found otherwise. It appears from the plats, road petition, commissioners’ proceedings and oral testimony that the section line road is on the Sipes property. Various exhibits bear Sipes’ consent to the establishment of the road there, and his recognition of the right of the public to the establishment and use of a highway there.
No allegation is made, nor is any proof offered, that the section line road is not open to the public as of right, or that it will not remain open. The contrary appears from the testimony, and whether or not the proceedings establishing the section line road were defective, as argued, the section line road is maintained by tbe county and open to public travel as a matter of right, and apparently will remain so.
The relators have failed to establish the special damage alleged in their complaint. They may not maintain this action.
The judgment is reversed and the cause remanded with direction to dismiss the complaint.
Mr. Chief Justice Johnson and Associate Justices Morris, Arnold and Angstman concur.
|
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Relator asks a writ of supervisory control to annul an order of respondent court denying its motion to amend its elaim against the estate of William C. Schustrom, deceased, and to have entered an order granting the motion. William C. Schustrom died on April 10, 1938, and Norman Schustrom was appointed executor. Within the time allowed by law therefor relator presented to the executor its claim for a total sum of $1,545.29, in form as follows:
“Cancellation fee on contract as follows based upon close of the market January 27, 1939, when termination of contract took place:
“Contract #10480 booked 9/17/37 — Balance 484 barrels.
“Carrying eharge at 1/6$ per barrel per day — 497 days — .825.. $ 399.30
“Selling eost — 484 barrels at 20$ per barrel................ 96.80
“Difference in market — Market date of sale.......... 1.03$
Market date cancellation — ......................56§
Diff. per bushel................................47J
Times faetor per bbl.......................... 4.6
Diff. per bbl................................. 2.16775
Times bbls. canceled............................484
1,049.19
Total Cancellation Charges.......................... 1,545.29”
A copy of the contract did not accompany the claim as required by section 10177, Revised Codes. On March 4, 1939, and after the time for presenting claims had expired, the executor disallowed it. On June 3d, relator petitioned the court for leave to file an amended claim. The proposed amended claim was tendered with the petition. It is in the identical language of the original claim, except that there was attached to it and made a part thereof a copy of the written contract No. 10480 dated 9/17/37, and there was also attached to it as an exhibit an explanation of the items going to make up the account, and allegations as to the business engaged in by William Sehustrom during his lifetime. It is sufficient to say of the explanatory matter that it did not in any manner change the items set out in the claim, and evidence of the explanatory matter would clearly have been admissible in an action on the claim as originally presented, if the claim was sufficient to support an action thereon. The only material change proposed in the claim from that originally presented was that of attaching a copy of the written contract relied upon.
The petition to file the amended claim recites that the contract was executed by the deceased, whereby he agreed to purchase 700 barrels of flour from relator. During his lifetime he accepted a portion of the flour under the contract, and after his death the executor received and accepted a further portion, leaving 484 barrels undelivered which the executor refused to accept.
Relator’s treasurer, Mr. Trigg, was thereupon advised by the attorneys representing the executor to file a claim against the estate, and they forwarded to him by mail a claim blank for that purpose. Trigg prepared and presented the original claim. Relator did not consult an attorney until after the claim was rejected and the time for filing claims had expired. It is alleged that the executor and his attorneys were familiar with the contract, and that William C. Schustrom retained a copy thereof which, upon information and belief, the executor now has.
The court did not give its reason for denying leave to amend the claim. It is entirety probable the court was of the view that under the circumstances the amendment was unnecessary— that, since the original claim identified the contract by number and date, and since the executor was charged with already having a copy thereof, there was no necessity of a strict compliance with section 30177, or, in other words, that the purpose of the section had been met under the circumstances and that the contract itself would be admissible in evidence in an action on the claim as originally filed. We do not hold that such a view would have been erroneous. We need not pass upon the point. We prefer to rest our decision upon another ground.
In State ex rel. Steinfort v. District Court, 109 Mont. 410, 97 Pac. (2d) 341, we commended the practice of placing the exact facts before the executor or administrator in creditors’ claims, and held that the creditor had the right, after the time for presenting claims had expired, to- amend the claim in such manner as to forestall the contention that there was a variance between the proof and the claim so long as the substance of the claim was not altered. That case has application here. The purpose of section 10177, requiring a copy of the contract to accompany the claim, is to enable the executor or administrator more intelligently to pass upon the merits of the claim. It would seem that where the contract was identified, as here, and where a copy was already in the possession of the executor, the omission of a copy accompanying the claim should not invalidate it. To hold that its omission under such circumstances would be fatal would seem to amount to a holding that section 10177 was intended, not as a means of ascertaining the facts relative to claims, but more to serve as a foundation upon which to erect technical objections to their sufficiency and make out of probate proceedings a game of matching skill.
However, in view of the holding of this court in Burnett v. Neraal, 67 Mont. 189, 214 Pac. 955, counsel for relator rightfully entertained some doubt as to the necessity of having a copy of the contract accompany the claim under all circumstances. We again commend them for seeking to forestall the technical contention, which was bound to arise, that the claim was insufficient.
In fairness to the trial judge, it must be said that under the case of State ex rel. Paramount Publix Corp. v. District Court, 90 Mont. 281, 1 Pac. (2d) 335, 76 A. L. R. 1371, the propriety of allowing the amendment was at least doubtful. At the time the court ruled on the motion the ease of State ex rel. Steinfort v. District Court, supra, had not yet been decided. On the authority of the Steinfort Case we must hold that the court erred in denying the motion.
Contention is made that the supreme court of Idaho has ruled otherwise in Flynn v. Driscoll, 38 Idaho, 545, 223 Pac. 524, 34 A. L. R. 352. But there the original claim was unintelligible without the proposed amendment. That is not the case here. Moreover, we are not able to subscribe to the view of the Idaho court on the facts there involved.
One other point is raised and that goes to the sufficiency of the verification. In the original claim the claimant is designated as Montana Flour Mills Company, without a recitation that it is a corporation. It was verified by the company through P. R. Trigg, who was designated as “Treasurer.” It was not stated that he is treasurer of Montana Flour Mills Company, although that, together with the further fact that the Montana Flour Mills Company is a corporation, were the reasonable inferences to be drawn from the verification. (Nevin-Frank Co. v. Hubert, 67 Mont. 50, 214 Pac. 959.) The proposed amended claim is verified by Trigg and recites that he is treasurer of Montana Flour Mills Company, a corporation. These variations do not constitute a material alteration in the claim. They simply make plain that which was to be reasonably inferred from the original verification.
The proposed amended claim also recites “that there are no offsets to the same to the knowledge of said claimant.” It is contended that where the verification is made by an officer of the corporation, it must be recited that there are no offsets “to the knowledge of affiant,” within the rules proclaimed in Ullman Co. v. Adler, 59 Mont. 232, 196 Pac. 157, 158, and Dorais v. Doll, 33 Mont. 314, 83 Pac. 884, 885. In the Dorais Case the court held that when the claimant acts for himself the verification may be “to the knowledge of * * * claimant.” In the Ullman Case the verification of the claim was by the bookkeeper, and the court pointed out that there was nothing to suggest that he was a general officer of the corporation. Here the verification is by an officer, viz., the treasurer. The officers are the only ones who can speak for a corporation. When one of them does so, as in this case, and states that there are no offsets to the knowledge of claimant, he in effect says that there are no offsets to the knowledge of affiant. The knowledge of officers of a corporation becomes and is the knowledge of the corporation.
The writ applied for will issue.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
|
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This action is based upon the Federal Employers’ Liability Act, Title 45, section 51, U. S. C. A. The action is to recover damages for the death of Antonio Vitellone, who was killed on March 1, 1933, while employed by the defendant railway company. The complaint alleges that the railway company and Vitellone were both engaged in interstate commerce at the time the latter was killed. The court sustained a general demurrer to the complaint and, upon plaintiff’s failure to amend, entered judgment in favor of the defendant.
No question is raised regarding the sufficiency of the complaint to allege negligence on the part of the railway company which proximately caused the injuries and death of Vitellone. From the complaint it appears that Vitellone died within a few minutes after sustaining the injuries. The action does not seek any compensation for his pain and suffering, nor does it seek to recover on any cause of action which the decedent himself might have had. The complaint sets out that Vitellone’s father and wife had died before him, but that he left two sons, each of whom was over the age of 21 years at the time of the death of Antonio Vitellone, and who were then married and had families of their own. It is alleged that “at the time of his death his said sons were each able-bodied men, engaged in the occupation of farming, and were not depending on Antonio Vitellone for support nor pecuniary assistance of any kind; that neither of said sons, at the time of his death, had any reasonable expectation of ever receiving support, pecuniary contributions, nor any pecuniary aid from said Antonio Vitellone, nor were they, by his death deprived of any pecuniary assistance, nor the reasonable expectation of any pecuniary assistance at any time in the future. ’ ’
The action is brought by the administrator for the benefit of the mother of Antonio Vitellone, who was alleged to have been dependent upon the decedent for her support at the time of his death. The only question in the case is the proper interpretation of the Federal Employers’ Liability Act. Section 51 thereof so far as applicable provides: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, * “ * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, ’ ’ etc.
It is contended by plaintiff that, since the sons had not sustained any pecuniary loss by reason of the death of their father, the mother thereupon, under the statute, became the one entitled to the benefit of the recovery under the federal statute. The defendant contends, on the other hand, that the existence of the surviving sons made them the beneficiaries under the Act, at least for nominal damages, which precludes recovery for the benefit of the mother.
As will be noted from the statute, there are three classes named in the Act for whose benefit recovery may be had when death ensues, viz.: (1) The surviving husband or wife and children of the employee; (2) if none, then to the parents of the employee; and (3) if none, then to the next of kin dependent upon the employee.
In the interpretation of the federal statute we are, of course, bound by the interpretation placed upon it by the United States Supreme Court. In that respect the supreme court of Alabama, in Southern Ry. Co. v. Vessell, 192 Ala. 440, 68 So. 336, Ann. Cas. 1917D, 892, made a statement to which we subscribe when it said: “As an original proposition, we might, if the question was involved, be inclined to hold that the right of action in favor of those of the first and second classes did not hinge upon the fact that they were dependent upon the employee at the time of his death, but we are now precluded from doing so, even if the question was involved upon this appeal, as the United States supreme court in the ease of Gulf, C. & S. F. Railroad Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785, held that for persons belonging to either class to get the benefit of the statute he or she must have been * dependent upon the deceased. ’ ’
In other words, were the question presented to us without the interpretation of the United States Supreme Court, we would be inclined to agree with the contention of the defendant. However, the Supreme Court of the United States has definitely held that in order for persons in either class 1 or 2 to be entitled to the benefits of such an action, they must have sustained a pecuniary loss, or must have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. (Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Gulf, C. & S. F. R. Co. v. McGinnis, supra; St. Louis etc. Ry. Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 L. Ed. 1160; Chesapeake etc. Ry. Co. v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367.) And it has been held that the loss of society or companionship is a deprivation not to be measured by money. (American R. Co. of Porto Rico v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456.) Hence, the Supreme Court of the United States has construed the statute, so far as it enumerates the beneficiaries of such an action, to mean the following: “for the benefit of the surviving widow or husband and' children of such employee (sustaining pecuniary loss because of his death) and, if none, then to such employee’s parents (if they have sustained pecuniary loss because of his death) and, if none, then to the next of kin dependent upon such employee.”
In other words, because of the construction placed upon the federal Act by the United States Supreme Court, we have the result correctly stated in II Roberts on Federal Liabilities of Carriers, second edition, section 882, page 1730, wherein he said: “Moreover as a necessary result of the construction of the Act above stated, no right of action is created for the benefit of any of the enumerated classes of beneficiaries unless there lives, at the time of the employee’s death, a dependent relative of that class. In the absence of such a qualified taker, on the contrary, that class is to be disregarded, and a cause of action will arise in rank represented by a qualified beneficiary. For example, if any employee, injured under conditions rendering the statute applicable, dies leaving a widow, son or daughter not depending upon him, and a mother who was dependent upon him, no right of action for the employee’s death would exist for the benefit of widow, son or daughter. The class to which they would otherwise belong, not being represented by qualified takers, would be ignored, and an action would lie for the benefit of the mother. ’ ’
Defendant relies largely upon the case of Chicago, Burlington & Quincy Ry. Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 48 Sup. Ct. 73, 72 L. Ed. 216, 59 A. L. R. 758. In that case decedent ’s mother survived him, but died before the administrator was appointed and before any action was brought on her behalf. The action was brought for the benefit of the sister of the decedent alleged to be dependent upon him. The court held that, since there was a cause of action in favor of the mother, the daughter had no right to maintain the action. That case differs from this, however, in that in that case it was plain that the mother had a cause of action and was deprived of pecuniary assistance by reason of the death of the employee. ' This appears from the report of the case appearing in Wells-Dickey Trust Co. v. Chicago, Burlington & Quincy Ry. Co., 166 Minn. 79, 207 N. W. 186.
Defendant also relies upon section 59 of the Act, reading as follows: ‘ Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury. ’ ’
Defendant argues that, since there is but one action and since the administrator could maintain an action under section 59 for the benefit of the sons to recover on the cause of action which the decedent might have maintained had he lived, that indicates an intention on the part of Congress that the sons are the only ones who could maintain the action under section 51. Section 59 is not involved here. Under the record before us the death of the decedent was to all intents and purposes instantaneous. At any rate, there is no attempt here to recover on the cause of action which the decedent himself had. Moreover, for the United States Supreme Court to be consistent, it will probably have to read into section 59 the same provisos which it read into section 51, or, if not, that the administrator may maintain the one action involving both causes of action and permit the recovery under section 59 to go to one class of beneficiaries and that under section 51 to another class if the facts so warrant.
It is our view, therefore, that this action was properly instituted for the benefit of the surviving mother, and hence that the demurrer to the complaint should have been overruled.
For another reason the demurrer to the complaint should have been overruled. Even if we accept the view of the defendant as being correct, namely that the cause of action is for the benefit of the sons and that they are entitled to recover at least nominal damages, then the complaint would still be sufficient, since it alleges tbat there were sons surviving. (Melzner v. Northern Pac. Ry. Co., 46 Mont. 277, 127 Pac. 1002; and see Woods-Hoskins-Young Co. v. Dittmarr, 102 Fla. 1000, 136 So. 710.) The action is properly brought by the administrator, and if defendant’s view be correct, which we hold it is not, the question presented could not have been raised by a general demurrer.
Rehearing denied June 3, 1940.
The judgment is reversed and the cause remanded with directions to set aside the order sustaining the demurrer and to enter an order overruling it.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
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MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an action to determine which of the two litigants is the owner of the prior right, for irrigation and other useful purposes, of the waters of Grove Creek in Stillwater county.
An adequate foundation for the claim of the first right is set forth in the complaint; uninterrupted enjoyment over a long period of years, injury arising from defendant’s invasion of plaintiffs’ right, demand made and refused that defendant cease such invasion, are alleged. Plaintiffs pray that defendant be required to set forth the grounds to his claim to the water, for a restraining order and, if the decree be in favor of the plaintiffs, for a permanent injunction enjoining further invasion of plaintiffs’ rights and for costs of suit.
Defendant’s special and general demurrers were overruled. The answer admits plaintiffs’ ownership of the land upon which plaintiffs used the water, and an appropriation by H. I. Grant through whom plaintiffs deraign title, but alleges a fatal break in plaintiffs’ chain of title, and otherwise denies generally all the material allegations of the complaint, then sets up five affirmative defenses — two upon right by prescription predicated upon hostile use and upon abandonment by plaintiffs’ predecessors in interest, and two as pleas in bar to plaintiffs’ alleged right of action by operation of sections 9015 and 9016, Eevised Codes, and a fifth upon prior right by appropriation.
• Special and general demurrers to the affirmative matter in the answer were overruled. A motion to strike was granted in part. The stricken portion is shown in the record.
The complaint alleges appropriation by plaintiffs’ predecessors in interest of 120 inches of the stream by notice recorded as of November 2, 1892, and its use on 160 acres of land described as the E% NE%, SW% NE14, and the SE14 NW]4 of section 18, T. 4 S., R. 18 E., M. M.
The cause was tried to the court sitting with a jury. Twelve special interrogatories were submitted. No answer was returned to interrogatory No. 11, and none was necessary by reason of the negative answer to No. 10. The other interrogatories and respective answers are as follows:
“Interrogatory No. 1: Do you find that H. I. Grant being the person who had a squatter’s claim on the land which is now part of the place owned by the plaintiff, made an appropriation of water in manner and form as set forth in the Notice of Appropriation which has been received in evidence as Plaintiff’s Exhibit ‘G’? (Answer yes or no.) Answer: Yes.
“Interrogatory No. 2: If you have answered Interrogatory Number 1 by the word ‘yes’, state whether or not water has been used for the irrigation of land under and by virtue of said appropriation. (Answer yes or no.) Answer: Yes.
“Interrogatory No. 3: If you have found that water was used for the irrigation of land under the appropriation made by H. I. Grant, state how many miners inches of water were used, and for what period of time it has been used. (If different amounts for different periods, give amounts and the different years in which used.) Answer: 40 to 120 inches.
“Interrogatory No. 4: If you have found water was used for irrigation, under and by virtue of the H. I. Grant appropriation, what proportion of the waters of Grove Creek were used for such irrigation during the time irrigating was being done? Answer: All at point of diversion.
“Interrogatory No. 5: Do you find that Joe Severin, being the person who has a squatter’s claim on the land which is now part of the place owned by the defendant, made an appropriation of water in manner and form as set forth in the Notice of Appropriation which has been received in evidence as Defendant’s Exhibit 7? (Answer Yes or No.) Answer: Yes.
“Interrogatory No. 6: If you have answered Interrogatory Number 5 by the word ‘yes’, state whether or not water has been used for the irrigation of land under and by virtue of said appropriation. (Answer, yes or no.) Answer: Yes.
‘ ‘ Interrogatory No. 7: If you have found that water was used for the irrigation of land under the appropriation made by Joe Severin, state how many miners inches of water were used and for what period of time it has been used. (If different amounts for different periods, give amounts and the different years in which used.) Answer: 15 to 30 inches.
‘ ‘ Interrogatory No. 8: If you have found water was used for irrigation under and by virtue of the Joe Severin appropriation, what proportion of the waters of Grove Creek were used for such irrigation during the time irrigating was being done ? Answer : All at point of diversion.
“Interrogatory No. 9: From all the evidence in this case, on which place do you find water has been used for irrigation more continuously and in larger amounts, on the place originally located by H. I. Grant, or on the place originally located by Joe Severin? Answer: H. I. Grant.
“Interrogatory No. 10: Do you find that water was ever used to irrigate land out of the ditches on the so-called Severin place, now owned by defendant, at a time when the occupant of the place now owned by plaintiffs knew that such water was being used, and at a time when such water was then wanted and required for irrigation by the occupant of the Cook place? Answer : No.
“Interrogatory No. 12: From all the evidence in this ease, taking into consideration the time of construction of ditches, the size and use to which the ditches were put, and the amount of water used for irrigation, on which place do you find that water out of Grove Creek was first used for general irrigation, the Cook place or the Hudson place? Answer: T. B. Cook.”
The findings of fact and conclusions of law of the court were in substantial accord with the answers returned by the jury to the special interrogatories, in so far as pertinent or applicable. The court found that the plaintiffs ’ predecessor H. I. Grant ap propriated on or prior to October, 1892, and thereafter applied to a beneficial use, 80 inches of the water in the irrigation of Grant’s claim and plaintiffs had succeeded to the squatter’s title to the lands and the water, deraigning their title to the water through the Grant appropriation and this 80 inches was awarded to the plaintiffs as a first right, prior and superior to any right of the defendant. It was further held that there was never any adverse use by the defendant, and that plaintiffs’ rights were not affected by the statute of limitations; that such water as defendant and his predecessors in interest had used out of the stream was used at the sufferance of the plaintiffs and with full recognition of the prior right of' the plaintiffs and their predecessors to the extent of the 80 inches decreed to them until the year 1937. The defendant was awarded 60 inches subject to the prior right of the plaintiffs, and defendant and all parties acting under him were permanently enjoined from interfering with plaintiffs’ rights. Plaintiffs were allowed their costs. Judgment was entered accordingly and from such judgment the defendant appeals.
Fifty-eight specifications of error are assigned, argued under five enumerated points of law, which will be considered in the order enumerated:
“1. The respondents are not the successors in interest of either John Heide or Sam Dixon, and for want of privity may not claim, in this suit, any waterright out of Grove Creek from Henry I. Grant through either Mr. Heide or Mr. Dixon.
“2. The judgment in the Heide-Carstens suit, which the respondents have pleaded as their title, is binding upon them and establishes the priority of their waterright, if they be successors of Henry Grant, John Heide and Sam Dixon, as not earlier than March 8, 1895.
“3. Henry Grant made no valid appropriation of water from Grove Creek prior to October 21, 1892, the date of the appropriation made by Joseph Severin, the appellant’s predecessor, and therefore any right coming to the respondents from Mr. Grant is inferior and junior to the right of the appellant!
“4. The respondents have proved an appropriation and beneficial use at any time of no more than forty-five miner’s inches of water as against the appropriation and right of Joseph Severin, the appellant’s predecessor of date and priority October 21, 1892.
“5. The costs of this suit in equity for the adjudication of controverted waterrights, claimed by both parties, should be apportioned; and either party should be required to pay his own costs without recovery over.”
1. Taking up the consideration of the first of the five points of law submitted, the record shows a break in the chain of title to the water right initiated by Grant when one of his successors in interest, Dixon, surrendered possession of the lands described in the complaint to one of the predecessors in interest to the plaintiff, Magee.
Henry I. Grant initiated the water right upon which plaintiffs ground their claim of priority, Grant’s notice of appropriation, as it appears in the record, was acknowledged October 31, 1892, recorded in the miscellaneous records of Carbon county November 2, 1892 (afterwards transferred to the records of Stillwater county), and such notice recites that the appropriation was made as of October 20, 1892. Three hundred miner’s inches of water were claimed. The lands on which it was to be used, being unsurveyed, were described by metes and bounds, and the point of diversion was likewise described by metes and bounds of the adjoining land and by certain posts alleged to have been set up at that time. The diversion ditch is described as being 36 inches on the bottom and 12 inches deep. Grant had simply a squatter’s right on the land, and he afterwards sold and conveyed such right along with his water, right to A. L. Lind for $500. Lind sold and conveyed the same property to John Heide for $500. While Heide was in possession of the premises an action contesting his water right was tried. After that suit resulting in his favor, Heide conveyed his claim, with certain enumerated personal property in the way of household effects, implements and machinery, to Sam Dixon for $2,300. These several conveyances are shown by plaintiffs’ exhibits “A,” “B,” and “ C. ”
Each conveyance shows the water right expressly included. Each of the exhibits mentioned was admitted over defendant’s objection. The objections were predicated upon the ground that the water right referréd to in the instruments of conveyance was not a right acquired by or through the record appropriation made by Henry I. Grant. This contention arises from the admitted fact that the plaintiffs in their proof could show no record or instrument of conveyance of any water right from Dixon to Magee, who succeeded Dixon, in the possession of the land described in the complaint but based their claim of priority upon transfer by parol from Dixon to Magee. Magee had been in partnership with one Price on a ranch or claim some three or four miles from the Dixon land, Price and Magee having dissolved partnership and divided up their property — Magee taking 250 head of cattle that the partnership owned and Price taking the land.
Magee, after running his cattle for a year or two on the open range at a new location, joined Dixon on the ranch that he had purchased from Heide. The evidence is to the effect that the two operated the ranch together, irrigating the lands and cutting and putting up the hay and taking care of their affairs generally together. It is obvious from the testimony that Magee and Dixon were associated together in handling their livestock and running the Dixon ranch under some sort of mutual arrangement. This association continued for a little more than a year, and Dixon then bought a ranch some four or five miles away in the neighborhood of the ranch where Price, the former partner of Magee lived, and while waiting to get possession of the new place that he had purchased he stopped with Price for about a month. While there, according to Price’s testimony, Dixon said that he had sold out to Magee and mentioned the price of $2,000. Magee continued on the Dixon place and after the land was thrown open to entry he patented the 160 acres described in the complaint, and died in 1908 leaving a son seven years of age as his only heir. His old partner Price, who was an intimate friend (the two having come to the county together), administered the Magee estate and reared the Magee son. When the elder Magee died part of his estate consisted of a lease on the Severin ranch. The defendant claims title to the water involved in the controversy through the appropriation made by Severin.
Price, as administrator of the Magee estate, handled the Severin place for one year under the Magee lease, putting up hay and looking after it generally, and the record does not show that the Magee lease on the Severin place remained in force after 1909. In that or the following year Price leased the Magee place to one L. A. Brennan. Brennan was a tenant on the place from 1909 or 1910 to 1924 — a period of approximately 14 years — and paid an annual cash rental of from $300 to $400. When Lyle Magee came into possession of his father’s ranch in 1924 it appears that he ran it for a time himself and then leased it for some years to other tenants and in 1936 sold it to the plaintiffs.
There is no question that such water right as existed by virtue of the Grant appropriation legally passed and vested in Lind by the Grant conveyance and was then conveyed from Lind to Heide and from Heide to Dixon, but transfer of title of the water right from Dixon to Magee rests entirely upon presumptions grounded on circumstantial evidence. The trial court, after making findings of fact and conclusions of law, made and entered in the record a very able opinion setting out the ground upon which the conclusions of law and decree were based. The following parts of that opinion will aid in obtaining a clearer grasp of the pertinent questions involved in the controversy:
‘ ‘ Evidence was offered by the witness, Robert Price, who testified, over objection, that Dixon after leaving the place occupied by him under his Squatters Right, informed him that he had sold the place to Mr. Magee for a purchase price of around Two Thousand Dollars. The contention is made by the defendant that this testimony was incompetent, irrelevant and immaterial, particularly, because the same is not a declaration against interest, and is in the form of hearsay, which would not be binding on the defendant or anyone in privity with him. With this contention, under authority of the case of Osnes Livestock Company v. Warren, 103 Mont. 284, 62 Pac. (2d) 206, the Court is, reluctantly, forced to agree. Such evidence has not been considered in arriving at a decision. If this be error it can easily be corrected on appeal, because such ruling does not militate against the decision in this Court.
“There is, however, other evidence in the record, competent and material, from which the presumption arises that Magee obtained title to the water right in connection with the squatters claim. This evidence established certain presumptions, and these being uncontroverted, make out a case for the plaintiff. The facts proved may be grouped as follows:
“1. The appropriation of H. I. Grant made in 1892 was the first appropriation and use of water out of Grove Creek. (See, also, jury findings.)
‘ ‘ 2. The squatters right was sold, each time for a consideration. $500.00 by Grant; same by Lind; Sam Dixon paid $2300.00 for the place, water and some personal property; after Magee’s death the place rented for $300.00 to $400.00 a year, for a long period at the turn of the Century (see chain of title and conveyances), and it is fairly deductible from the record that this was relatively valuable property, and that its principal value lay in its water right.
“3. Heide placed such value on the water right that he litigated the question of who had prior right to its use, and established by decree that he owned the water right in 1895.
“4. From time of appropriation by Grant until the present time, water has been used continuously on the Cook place. Water has never been used by Hudson when wanted on Cook place. (See jury interrogatory Number 10.) There has never been any abandonment of the Grant right.
“5. Sam Dixon had a good right to the land and water (see Plaintiff’s Exhibit ‘C’). He and Magee operated the place together, using, land and water, acting as co-partners, and the presumption is they had entered into a contract of co-partnership. (See sec. 10606, sub. 29)
“6. Dixon surrendered possession of place and water to Magee, who continued to operate same, use the water, and finally obtained homestead patent for land and water. (See Plaintiff’s Exhibit ‘D’) Having been in possession of said land and water as a Squatter, the presumption is that the Government, in allowing his homestead entry, recognized his acquired squatters right. (See 50 C. J. 926 (76) and eases cited).
“7. The land and water were used by Magee and his heir without restriction in the use of water, and with a claim to a prior right to its use as against the Hudson Place, from time Dixon left the land until Cook acquired it in 1937.
“8. At all times, both the Cook and Hudson Places required irrigation to raise profitable crops, and the evidence shows that there has not been enough water in Grove Creek to irrigate both places. Nevertheless, as found by the jury, no water was ever used on the Defendant’s place when occupants of Plaintiff’s place knew of such use, when such water was then wanted and required for use on the Cook Place. ’ ’
Following this portion of the opinion, the trial court enumerates a number of presumptions found in section 10606, Revised Codes, and of such presumptions so mentioned it is our view that subdivisions 8, 11, 12, and 27 are particularly applicable here. The presumptions mentioned are as follows.-
“8. That a thing delivered by one to another belonged to the latter.”
“11. That things which a person possesses are owned by him.
“12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership. ’ ’
“27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact.”
In the consideration of cases such as that at bar, we are governed by the rule that the supreme court may examine the evidence and determine a question of fact for itself, but it cannot overturn findings of the trial court unless there is a decided preponderance of the evidence against them (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860; Copper Mountain Min. & S. Co. v. Butte & Corbin Min. Co., 39 Mont. 487, 104 Pac. 540, 133 Am. St. Rep. 595; Murray v. Butte-Monitor T. M. Co., 41 Mont. 449, 110 Pac. 497, 112 Pac. 1132; O’Neil v. O’Neil, 43 Mont. 505, 117 Pac. 889, Ann. Cas. 1912C, 268; Leigland v. Rundle L. & A. Co., 64 Mont. 154, 208 Pac. 1075; Kummrow v. Bank of Fergus County, 66 Mont. 434, 214 Pac. 1098), and in such cases when all the evidence is before this court we may, under section 8805, determine a fact upon which the trial court failed to make a finding (Walsh v. Hoskins, 53 Mont. 198, 162 Pac. 960), and where the contention is made that the evidence is insufficient to support the findings of the trial court we will go no further than to determine whether there is a decided preponderance against the findings and if there be reasonable grounds for differing opinions the decisions will not be disturbed. (Nolan v. Benninghoff, 64 Mont. 68, 208 Pac. 905.)
(A) Generally speaking, the facts found as set forth in the foregoing excerpt from the trial court’s opinion are, with the possible exception presently mentioned, sustained by a clear preponderance of the evidence. It is our view that the alleged break in the chain of title to the water right on the grounds contended is not material when considered in the light of all the circumstances and pertinent statutory presumptions. Admission of the testimony of Price as to the sale by Dixon to Magee as a declaration against interest might be admissible as an exception to the hearsay rule of evidence on the ground of necessity. (See, 3 Wigmore on Evidence, 2d ed., p. 155, sec. 1421, and 20 Am. Jur., sec. 608, p. 521.) But in the case at bar we are not reduced to the application of the necessity rule by reason of the presumptions logically arising from the circumstantial evidence as shown by the record, and for that reason the exclusion of the Price testimony as to the Dixon declaration was proper under the circumstances.
We adopt in substance that part of the opinion of the trial court recited, modified, however, as to the absolute ruling on the exclusion of declarations against interest as applied generally. It is our opinion that Dixon’s statement might be admissible, in some circumstances, under the necessity rule mentioned, but this is stated here merely to save the exception to the rule in cases where it might apply. The strength of plaintiffs’ position lies in the following rules of law, when applied to the facts here involved .-
The claim and water rights of a squatter can be conveyed by parol. (Gilcrest v. Bowen, 95 Mont. 44, 24 Pac. (2d) 141; Geary v. Harper, 92 Mont. 242, 12 Pac. (2d) 276; Wood v. Lowney, 20 Mont. 273, 50 Pac. 794; Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751; St. Onge v. Blakely, 76 Mont. 1, 245 Pac. 532; Connolly v. Harrel, 102 Mont. 295, 57 Pac. (2d) 781.)
In Geary v. Harper, supra, it was said: “This court is committed to the doctrine that a settler upon public lands of the United States may convey his right therein, with water rights thereto appurtenant, orally and with or without consideration, to one who thereupon takes immediate possession thereof.”
There are textwriters who lay down the rule that a water right taken out to irrigate public lands is not appurtenant to such lands except where and until the appropriator brings the land to patent, but lapses with the sale or release of the squatter’s right, but the rule is to the contrary in this jurisdiction. (Geary v. Harper, supra; see, also, Wills v. Morris, 100 Mont. 514, 50 Pac. (2d) 862; McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648.)
(B) It appears to us that the four statutory presumptions set out above and depended upon by the trial court were ample under the circumstances here to meet every plausible contention of the defendant. Subdivision 8 of section 10606, Revised Codes, one of the presumptions relied upon, when applied to the facts and circumstances relative to Dixon delivering possession of the squatter’s right to Magee, logically covered the water right. When Dixon left the-place he and Magee had occupied together, he in effect delivered to Magee all of his interest in all of the property he left behind. (See St. Onge v. Blakely, supra.) This view is founded on the fact that he never returned to reclaim anything, nor did any successor or heir ever appear to contest Magee’s right to the water. It is our opinion that this presumption is sufficient to sustain plaintiffs’ title along with others that we will presently mention to cure the alleged break in the chain of title running from Grant, the original appropriator, to the plaintiffs.
Subdivisions 11 and 12 of the same section reinforce the presumption under subdivision 8, and the three taken together being further supported by the long term of years the water right was exercised in connection with the land described in the complaint appears to us to be as conclusive of title as circumstantial evidence could make it.
(C) Furthermore, the last clause of subdivision 12 adds weight from another source — that is, from common reputation of ownership. The clear preponderance of the evidence is to the effect that the first water right out of the creek has been recognized as appurtenant to the lands now owned by the plaintiffs for a long period of years and was not questioned until about the time or shortly after the date that Lyle Magee sold the land to the plaintiffs. Subdivision No. 27 reinforces this conclusion. The acts of ownership exercised over the water right by Magee and his successors in interest and the uninterrupted enjoyment of such right brings the Magee ownership clearly within the presumption that a person is the owner of property from exercising acts of ownership over it or from common reputation of his ownership. That the plaintiffs acquired all the title that Magee had is not questioned. It is our opinion that if that rule does not apply here, then right by prescription could' not under any circumstances be established.
The case of St. Onge v. Blakely, supra, is particularly applicable here on the point that neither Dixon nor anyone representing him ever returned to challenge Magee’s claim to the water right. In that case one Davis entered into a contract with St. Onge to sell the latter certain land along with a water right and other personal property. After certain payments had been made on the contract, it was discovered that Davis had no title to the land and the purchaser refused to make further payments but retained all the personal property that was covered by the contract and of which he had taken possession. Later St. Onge’s title to the water was contested on the ground that the water right he had purchased by parol from Davis was not appurtenant to the land upon which St. Onge subsequently filed and brought to patent. The court in that case said:
“While the title to the lands was never conveyed to plaintiff F. L. St. Onge, St. Onge, by virtue of the contract with Davis and the payment of a portion of the consideration, and the continued possession, taken under the conditional sale, acquired a right to all of the property so sold to him by Davis, including the Suprenant and Marceau water right and ditches, * * * which the court finds constitute privity of title with Davis, which was good and subsisting as against all the world, excepting only Davis himself and his successors in interest, and Davis, not having taken steps to declare a forfeiture of the contract of purchase, created the presumption that he waived it.”
“ * * * The contract was personal between Davis and St. Onge, and when neither Davis nor his personal representatives sought to enforce a forfeiture, no mere stranger to the contract can now raise the question; paraphrasing the language employed in McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648: If they did not care to take advantage of the forfeiture no one else can plead it for them.
“But, counsel assert, St. Onge received no deed for the water right. They are correct in their statement; but that fact does not affect the St. Onge right — no deed was necessary, for one who has settled upon and is in possession of public lands of the United States may convey his right in the same, together with a water right appurtenant thereto, orally and for or without consideration, to one who takes possession thereof. (Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 Pac. 1054; McDonald v. Lannen, above; Wood v. Lowney, 20 Mont. 273, 50 Pac. 794; Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751.) ”
That part of the foregoing citation where it says that the contract was personal between Davis and St. Onge and when neither Davis nor his personal representatives sought to enforce a forfeiture, no mere stranger to the contract could raise the question, applies with particular force here.' When Dixon and none of his representatives ever raised the question or returned to reclaim the water right that he had purchased with his squatter’s claim from Heide, no one else was in a position to contest Magee’s claim thereto.
(D) On the question of prescriptive right, as applied in favor of the plaintiff’s title, it is our opinion that Magee’s undisturbed possession for a period of time in excess of the time necessary to acquire title by prescription, standing alone, was sufficient to vest clear title in him. Sections 6817 and 6818, Revised Codes, respectively provide:
“6817. Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.”
‘ ‘ 6818. Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.” A water right is property. (Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 Pac. (2d) 206; Murray v. Tingley, 20 Mont. 260, 50 Pac. 723.)
The only vital question that seriously affects plaintiffs’ title to the prior right initiated by Grant to the waters of Grove Creek is the break in the record title heretofore mentioned when Dixon released possession to Magee. The right gained by Magee by his occupancy of the right to the use of the water in accordance with section 6817 cannot be successfully challenged after so long a time, and we can disregard any question as to whether Magee acquired the Dixon right grounded on the Grant appropriation and still, within all recognized rules of law and equity, hold that Magee, upon his taking possession of the Dixon squatter’s claim on Dixon’s departure on or about 1900, using the water at all times without let or hindrance as shown by the record, and bringing the land on which the water was used to patent, established a first right to the waters of Grove Creek against all others.
The clear preponderance of the evidence is to the effect that no one questioned the exercise of the first right to the waters of the creek by any owner or occupant of the land described in the complaint from and after Grant made the appropriation in 1892, until the defendant invaded the right of the plaintiffs in 1937, which resulted in this lawsuit.
Title to a water right may be acquired by prescription. (Custer Con. Mines Co. v. City of Helena, 52 Mont. 35, 156 Pac. 1090; Verwolf v. Low Line Irr. Co., 70 Mont. 570, 227 Pac. 68; Irion v. Hyde, 107 Mont. 84, 81 Pac. (2d) 353; 20 Am. Jur., sec. 236, p. 231.)
The fact that no one interested in the Severin right attacked the Magee right for so long a period is significant. While Severin himself lived on his place adjoining the Magee place, there were four transfers of the land and water right and one lawsuit relative to the waters contested. It appears reasonable to assume that when the court in the Heide-Carstens litigation entered a decree to the effect that Heide was entitled to 120 inches as a first right out of Grove Creek, such actions affecting the water right of the little stream would have been brought home to Severin, who all this time occupied his adjoining farm.
Eelative to defendant’s claim of title by prescription grounded on adverse possession, his adverse claim must have been brought home to all upon whose rights his claim infringed. (Irion v. Hyde, supra, and cases cited.) One who never told anyone of his adverse claim to another’s right must show possession of such a character as to give the owner notice of his hostile claim. (Collins v. Thode, 54 Mont. 405, 170 Pac. 940; Blackfoot Land Dev. Co. v. Burks, 60 Mont. 544, 199 Pac. 685; Ferguson v. Standley, 89 Mont. 489, 300 Pac. 245.) Plaintiffs’ right was at rest from its inception in 1892 until 1937.
(E) There is ample evidence in the record that the defendant and his predecessors in interest have used the water involved from time to time, but no evidence tending to show that such use was open, notorious, hostile and adverse to the rights of the plaintiffs or their predecessors. (Irion v. Hyde, supra.) Use may be open and notorious and still not be adverse. (Northern Pac. Ry. Co. v. Cash, 67 Mont. 585, 216 Pac. 782.) It is a fundamental principle of water right law that a prior right may be exercised only to the extent of the necessities of the owner of such prior right and when devoted to a beneficial purpose within the limits of the right. When the one holding the prior right does not need the water, such prior right is temporarily suspended and the next right or rights in the order of priority may use the water until such time as the prior appropriator’s needs justify his demanding that the junior appropriator or appropriators give way to his superior claim. We have no substantial evidence here to show that Severin or any of his successors in interest ever complained of the use by plaintiffs’ successors of the prior use of the waters involved, until this litigation arose. The court’s finding that defendant’s use was not adverse and that he acquired no prescriptive right is supported by a preponderance of the evidence.
2. In support of defendant’s second point of law it is contended that the decree in the Heide-Carstens litigation fixed Heide’s water right as having been initiated March 8, 1895; that plaintiffs predicated their pleading of first right upon the adjudication in favor of Heide in that action and should not be heard in any attempt to fix an earlier date of initiation, and to further strengthen this contention it is shown and argued that when Lyle Magee transferred the land and water right to the plaintiffs, he referred to the water right in the instrument of conveyance as fixed by that decree, and that plaintiffs are bound by the specific title pleaded. This contention of the defendant is inconsistent with his point of law number 4, where it is contended that plaintiffs showed no greater amount of water put to a beneficial use than forty-five inches. If plaintiffs were bound here by the Heide-Carstens decree, then they would be entitled to 120 inches of the water, instead of the 80 inches allowed by the court and the 45 contended for by the defendant. But we do not interpret the pleading in the complaint as contended for by defendant. Reference to the Heide-Carstens decree appears to have been used more for descriptive purposes than as the foundation of title; and it further appears from all the circumstances that all the court intended by fixing the date of Heide’s water right as of March 8, 1895, was to fix a date showing its priority over the right claimed by Carstens. The date' fixed was the date of the instrument of conveyance of the squatter’s right from Lind to Heide. And it rather clearly appears that the court merely set that date as the time Heide’s right arose, and that being sufficient to determine the matter in his favor as opposed to the contention of Carstens, the date of initiation was not investigated further, and we are of the opinion that that decree could not be pleaded as res judicata between the ■ parties here, no one but the two litigants involved there being interested in that action. The decree in that case might well be used as some evidence relating to the water right here in controversy, but is not conclusive. (See Wills v. Morris, supra.)
After describing the land, the deed from Lyle Magee to the plaintiffs contains this recital: “Together with all water rights * * * appurtenant to said premises or used in connection therewith,” including the following: “All rights to the waters of Grove Creek decreed to John Heide and appurtenant to the above lands.” So it becomes quite obvious that reference to the Heide decree was used for the purposes of identification along with the general clause referring to the water appurtenant to the land. This conclusion is in harmony with our ruling in Wills v. Morris, supra, where, quoting from a former decision, it was said: “A water right, as we have noted supra, is property, and a judgment which in some measure determines or affects one’s water right is admissible as against a stranger, not to conclude him, but to evidence the right of one in whose favor it is rendered, and on the trial of a cause it is to be considered by the court, together with the other evidence received touching the right in question.”
The point of law No. 3 is to the effect that Henry Grant made no valid appropriation prior to October 21, 1892. Plaintiffs’ Exhibits “G” and “H,” Grant’s notices of location of water right, were dated and acknowledged October 31, 1892, recorded November 2 following and recite on the face thereof that the appropriations were made as of October 20, 1892. The recordation of the notice and the date on which the appropriation was alleged to have been made was one day prior in each instance to the date shown by the Severin notice. The presumption is that this record is genuine (subd. 34, sec. 10606, Rev. Codes), and its contents are prima facie evidence of the facts therein stated. Grant testified that Severin’s cabin was on the creek when he, Grant, located on his squatter’s claim, but that his appropriation and ditch were made before Severin’s, and that after he had built his ditch he helped “Joe” take out his ditch, which consisted of two plow furrows for the purpose of irrigating his garden. This is the most convincing evidence in the record as to which appropriation was first as between Grant and Severin, and we are of the opinion that defendant’s contentions on this point are without merit.
But, defendant contends, Grant’s appropriation was made prior to the time the Indian lands were opened for settlement, and, being initiated in trespass, was null and void. The Crow Indian treaty of 1868, 15 Stat. 649, section 2118 of the Revised Statutes of the United States, 25 U. S. C. A., sec. 180, and the President’s proclamation are cited to support such contention. The treaty contains a provision to the effect that white men shall be excluded from Indian lands; but we think it is obvious that the meaning of this provision was that whites were excluded from any beneficial interest in such lands and might be excluded from physical presence on such lands if their presence thereon or their acts were inimical to Indian welfare, or if they were on the Indian lands without the consent of the tribe. We do not believe that there was any intention to provide in the treaty that travel over or across the reservation would be prohibited unless travelers were objectionable to the Indians or the particular person or persons were interfering with Indian rights. This conclusion is based upon the following facts: Title 25 of the Revised Codes of the United States Annotated, contains Chapter 5 relating to “Protection of Indians,” and sections 179 and 180 are a part of that Chapter. These two sections are sections 2117 and 2118 of the Revised Statutes of the United States and provide as follows:
Section 179 (2117): “Every person who drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe, is liable to a penalty of $1 for each animal of such stock. * * * ”
Section 180 (2118) : “Every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of $1,000. The President may, moreover, take such measures and employ such military force as he may judge necessary to remove any such person from the lands.”
All reported eases that have been litigated relating to trespass on Indian lands appear to have been grounded on one or the other of these two sections. In section 179 one guilty of any of the trespasses mentioned becomes liable to the penalty therein provided if he invaded the Indian lands without the Indians’ consent. If one did any of the things mentioned in the section with the consent of the Indians to whom the lands belonged, he would not, of course, be liable for trespass. It was held in Kirby v. United States, etc., (9 Cir.) 273 Fed. 391, that cattle grazed on the Crow Indian Reservation in excess of the number covered by contract was not an unlawful invasion of Indian lands when the excess number were on the reservation with the consent of the tribe.
In the case of United States v. Ash Sheep Co., (9 Cir.) 250 Fed. 592, 594, the defendant was charged with trespassing on Indian lands; crossing such lands and grazing thereon while in transit to leased lands on the Crow Indian Reservation was admitted but defended on the ground of necessity, and that access to the leased lands was not otherwise available. In the court’s opinion it was said: “It was the manifest intention of Congress to prevent the use of Indian lands by white people as pasture grounds for their stock without the consent of the Indians. * * The purpose was to protect the pasture lands of the Indians.” In another action under the same title, reported in 9 Cir., 254 Fed. 59, the defendant sought reversal of the judgment assessing damages in the sum of $5,000, under section 2117. In the last action the court said the penalty was applied for the reason that defendant, “without the consent of the Crow Tribe of Indians, or of the United States, drove, ranged, and fed 5,000 head of sheep on the lands specified in the complaint. ’ ’ On appeal to the Supreme Court of the United States, 252 U. S. 159, 40 Sup. Ct. 241, 64 L. Ed. 507, where the two cases were affirmed, that court, like the circuit court, referred to the fact that the sheep were on the Indian lands without the permission of the Crow tribe of Indians. It thus becomes clear that the sections of the United States statutes quoted above are intended to protect Indian lands against harmful trespass, and we find no case, and none has been cited, wherein mere trespass was the basis of any action by the federal government in which penalties were imposed or expulsion of whites from Indian lands was sought. The two sections of the statute are directory in form and not mandatory. Whether any action be taken or not appears to be at the discretion of those upon whom the duty is imposed to protect Indian rights from invasion.
The case of Langford v. Monteith, 1 Idaho, 612, which defendant contends ‘ ‘ is exactly in point, ” does not apply here. In that case the plaintiff began the action as landlord against the defendant, as his tenant, for holding over lands within the Nez Perce Indian Reservation, contrary to the terms of the lease previously entered into between the parties. The court, proceeding under section 180 (2118), held that the plaintiff was a trespasser on Indian lands and “without any right whatever to enter into contracts for the use and occupation of Indian land reserved under treaty.” The facts and questions involved in the two cases are materially different.
There are a number of reasons which we think strongly tend to rebut the contention that Grant was a trespasser, but in our opinion the following is conclusive: The proclamation of the President recites that clause 13 of the agreement between the Indians and the United States of December 8, 1890, contained a condition that it should not be binding upon either party until ratified by the Congress of the United States, and' when so ratified the lands should not be opened to settlement until boundary lines were surveyed and marked. The proclama tion further recites that the agreement was ratified by Act of Congress March 3, 1891, 26 Stat. 1095. It appears to us that that is the date the agreement became binding upon both parties according to its terms, and from that date to the date of the proclamation the land upon which Grant located was public domain of the United States, subject to squatters’ rights of location. The provision that the lands should not be thrown open to settlement until surveyed and marked has no bearing upon the binding effect of the agreement as of March 3, 1891. Obviously, the survey and fixing boundary corners and lines was for the purpose of avoiding confusion by settlers filing on Indian lands lying along the border line between the lands ceded and the Indian reservation.
We deem it unnecessary to give any particular attention to the contention advanced under point of law number 4, for the reason that the jury and the court have found the facts to be contrary to defendant’s contentions, and, under the established rule, we are not perpiitted to override the conclusions of the triers of the facts where, as here, the evidence does not preponderate against them.
Brennan, a tenant on the Magee place under Price as administrator for fourteen years, and two other witnesses separately holding leases on the place under Lyle Magee after he became of age, were permitted to testify for the defendant, over objections, such testimony tending to impeach the title of the landlord. The objections should have been sustained under the rule mentioned in 35 Corpus Juris, section 565, page 1224. To disregard the rule in such circumstances as are here involved would open the door for the reception of testimony arising from collusion between an unscrupulous tenant and a designing person who coveted property of the landlord, and might lead to serious mischief. The testimony of these witnesses, while of no great material value, has been disregarded.
5. Defendant’s contention on the question of costs is in accord with the holdings of this court in water right actions where neither party recovers all that he claims. (See Wills v. Morris, supra, and Osnes Livestock Co. v. Warren, supra.) Neither party recovered all he claimed in the action at bar, and defendant’s contention will be sustained in the matter of costs.
The cause is remanded to the district court with instruction to modify the decree to provide that each party pay his own costs, both in the district court and here, and as so modified the judgment appealed from will stand affirmed.
Mr. Chief Justice Johnson and Mr. Justice Arnold, concur.
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an appeal by contestant from a judgment in favor of contestee. The question involved is whether contestee is qualified to hold the office of county commissioner of Lincoln county. The question arises from the following facts:
Hoisington settled upon a homestead near Troy in Lincoln county in August, 1917, in what is now County Commissioner District No. 2. He there remained until August 7, 1936, at which time he accepted an appointment as deputy sheriff and went to Libby, which is in County Commissioner District No. 1. During that month he married a resident of California and established a home in Libby, where he continuously maintained his home until the time of the trial of this action.
After the registration lists had been cancelled, pursuant to Chapter 172, Laws of 1937, under the mistaken belief that they were obliged to do so, Hoisington and his wife registered as electors in the Libby precinct on January 3, 1938. Later, and on March 8, 1938, upon learning that they could maintain their voting residence in the Troy district, they cancelled their registration in the Libby district and reregistered in the Troy district.
We must under these facts regard contestee as a qualified elector at all times in the Troy district. When he moved to Libby he intended to remain there only so long as his position of deputy sheriff continued, and he always entertained the intent to return to his home in the Troy district when his employment as deputy sheriff ceased. He frequently returned to his home in the Troy district to help look after his property interests which, during his absence, were eared for by his father who lived on the property.
At the general election on November 8, 1938, he was elected commissioner from District No. 2. This proceeding questions his right to hold the office because of the provisions of section 4, Article .XVI of our Constitution. That section, in providing for the election of county commissioner, provides that they “shall be selected from the residents and electors of the district or districts in which the vacancy occurs, * * * provided, however, that no one shall be elected as a member of said board, who has not resided in said district for at least two years next preceding the time when he shall become a candidate for said office.”
The question before us is: What is meant by the word “resided” as used in this section? Other sections of the Constitution shed some light upon this question. Section 2 of Article IX provides who are qualified to vote and, among other things, contains this provision: “Second, he shall have resided in this state one year immediately preceding the election at which he offers to vote, and in the town, county or precinct such time as may be prescribed by law. ’ ’ The very next section provides that “for the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the state, or of the United States, nor while engaged in the navigation of the waters of the state, or of the United States, nor while a student at any institution of learning, nor while kept at any almshouse or other asylum at the public expense, nor while confined in any public prison.”
Section 7 of the same Article, when dealing with the right to hold office, provides as follows: “No person shall be elected or appointed to any office in this state, civil or military, who is not a citizen of the United States, and who shall not have resided in this state at least one year next before his election or appointment.” Section 11 of the same Article provides in part as follows: “Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this constitution,” etc.
The effect of section 11 of Article IX, except as otherwise provided in the Constitution, is to make those qualified to vote for an officer eligible to hold the office. This was so held in the case of State ex rel. Shea v. Cocking, 66 Mont. 169, 213 Pac. 594, 595, 28 A. L. R. 772, where the following was quoted with approval from Mechem on Public Office and Officers, section 67: ‘£ Where no limitations are prescribed, the right to hold a public office under our political system is an implied attribute of citizenship and is presumed to be coextensive with that of voting at an election held for the purpose of choosing an incumbent for that office; those, and those only, who are competent to select the officer being deemed competent also to hold the office. ’ ’ This rule is, as to county commissioners, qualified by section 4 of Article XVI to the extent that, while the entire electorate of the county has the right to vote on the election of a member, those only who are electors and residents of the particular district have a right to hold the office.
Here, contestee clearly met the provisions of section 3 of Article IX, and sections 33 and 574, Revised Codes, by retaining his voting residence in the Troy district; and under section 11 of the same Article and under the principles announced in the Shea Case, supra, he was competent to hold the office of commissioner from that district.
We might easily conceive of a situation where a person was elected county commissioner from a remote district in the county, and by reason of his service as county commissioner he was obliged to, and did, change his home to the county seat in order more efficiently to perform his services, and if this would be held to constitute a change in his legal residence, he would be disqualified from running for a second term. There is nothing in, section 4, Article XVI, to suggest that it was the intention of its framers that this result should follow.
Among the cases supporting the view that the acceptance of employment with the state or federal government does not work a change in residence, when the person involved did not so intend, may be cited the following: State ex rel. Lowe v. Banta, 71 Mo. App. 32; Walden v. Canfield, 2 Rob., (La.) 466; Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, 46 Am. Rep. 108; and see Kennan on Residence and Domicile, pp. 142, 143. Under our Constitution and statutes (sec. 574, Rev. Codes), a “legal residence” may be at a different place from actual residence. (See 17 Am. Jur. 596, and compare generally Texas v. Florida, 306 U. S. 398, 59 Sup. Ct. 563, 83 L. Ed. 817, 121 A. L. R. 1179.)
Under the facts here, the court was justified in finding that the contestee resided within the Troy district during the two years preceding the time he became a candidate for county commissioner within the meaning of section 4, Article NVI of the Constitution. There is nothing to indicate that the word “resided” as used in this section was intended to have any different meaning than when used elsewhere in the Constitution when treating of the right to hold public office.
The facts in the case of Snyder v. Boulware, ante, p. 427, 96 Pac. (2d) 913, were entirely different from the facts here. There the candidate was seeking to establish a legal residence in a place where he had never established a home and where he had never lived.
It follows that the judgment should be and is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
|
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] |
PER CURIAM.
The appeal in the above-entitled action is ordered dismissed as per praecipe of dismissal filed by the attorneys for appellants.
|
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This action was brought to foreclose a chattel mortgage alleged to have been given to secure the payment of a promissory note made by defendants and payable to the order of the Columbus State Bank.
The complaint alleges that the note and mortgage were sold, assigned and transferred to plaintiff by the bank through the Superintendent of Banks as liquidating officer after the bank’s insolvency and “pursuant to an order made and entered in the district court of the Thirteenth Judicial District.”
The answer admits the execution of the note and mortgage, but alleges that it was executed on November 5, 1930, rather than on December 3, 1930, as alleged in the complaint and as appears on the face of the instruments. In other respects the answer was a general denial, coupled with an affirmative defense of payment. A second affirmative defense was pleaded, but this has been abandoned. The reply put in issue the affirmative allegations of the answer.
The cause was tried without a jury, resulting in findings and judgment for defendants. The court found that plaintiff failed to prove that he is the legal owner of the note and mortgage, and particularly failed to prove the title alleged in the complaint “pursuant to an order made and entered in the district court of the Thirteenth Judicial District.”
The record discloses that a court order was obtained confirming the sale of assets of the bank by the liquidating agent. That order recites that the liquidating agent “having heretofore filed his petition requesting leave of this court for the superintendent of banks of the State of Montana and as such in charge of the assets and affairs of the Columbus State Bank, Columbus, Montana, to sell for the sum of not less than $100 certain assets of said bank described as follows: ‘All of the rights, title and interest of the Columbus State Bank in the promissory notes as follows: [Here follows a description of 62 notes by giving the names of the makers and their amounts.] ” The note in question here was not described or otherwise referred to. The order authorized the sale of the notes and other property and assets “mentioned and described in said petition and in this order hereinabove set forth and described, for the sum of One Hundred Dollars.” As before stated, the order does not refer to the note and mortgage in question here.
Plaintiff relies upon the general rule stated in 1 Joyce, Defenses to Commercial Paper, section 601, wherein it is said that “the makers of notes cannot defend an action on them by the indorsee on the ground that the payee had no authority to negotiate them, where the notes were duly indorsed and transferred by the payee, and the makers admit the validity of the notes.” He also relies upon the case of Meadowcraft v. Walsh, 15 Mont. 544, 39 Pac. 914, 915, wherein this court said: “This is substantially a plea that plaintiffs are not the real parties in interest, but that the notes belong to, and are the property of, the assignee. But, as against the defendant, the maker, the argument is not tenable. The holders of the notes are presumptively the owners, and their possession is presumptive evidence of their title, until rebutted by the defendant. * * ® And until this presumption is overcome, plaintiffs are bona fide purchasers for value, have a right to sue, and are the real parties in interest. * * * Plaintiffs having bought the notes after maturity, they were, of course, transferred without prejudice to any set-off or other defense existing at the time of or before notice of the assignment. But no such set-offs or defenses are claimed, other than that the plaintiffs are not the lawful holders of the notes, with the right to sue. Accordingly it is of no importance to defendant who owns the notes, provided he is not liable to a second suit founded on the same claim.”
This rule is sound when properly applied. Under our statute “the holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.” (Sec. 8458, Rev. Codes.) But a holder is defined as “the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” (Sec. 8402, Id.) And the “bearer” means the one in possession when payable to bearer. (Id.)
Here the note was not endorsed by the bank as such. On its face it appears to have been endorsed by S. L. Kleve, general liquidating agent for the bank. The receiver or liquidating officer of an insolvent bank can sell the assets of the bank only on court order. (Sec. 6014.137, Rev. Codes.) “A receiver, being merely a ministerial officer or instrument of the court by which he is appointed, has no original or inherent authority, and no official act of his is efficacious unless power to do it has been conferred upon him. Whatever power a receiver possesses comes from the court or from statute, and not from any of the parties, and so he has only such authority as may have been conferred upon him by statute or by proper order of the court, and such as may reasonably or necessarily be implied from such orders or from the statute by which his express power is defined.” (53 C. J. 143; and see 23 R. C. L. 98.) And a pretended sale made without authority is void. (53 C. J. 205; Ellis v. Little, 27 Kan. 707, 41 Am. Rep. 434.)
This ease differs essentially from that of Meadowcraft v. Walsh, supra, for in that ease the endorsement of the payee appeared to be regular on the notes in question. Here the endorsement appears to have been made by the liquidating agent, and whether he had authority to do so becomes a pertinent question on the issue of the title to the note. Mere possession of the note is not always sufficient to entitle a person to sue thereon. (Lefebure v. Baker, 69 Mont. 193, 220 Pac. 1111, 1114.) In the Lefebure Case this court stated the rule to be that “ ‘in an action upon a note or bill by any one not an original party, his pleading must show the facts that give him the title.’ ” If the pleading must disclose the facts of title, then certainly the proof must do likewise. And where, as here, plaintiff relies upon an endorsement made by a liquidating agent, whose authority is limited by statute and conditioned upon obtaining a court order, he must allege and prove that in making the endorsement he acted pursuant to such an order. Having failed to do so, the court was right in holding for defendants.
The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
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] |
MR. JUSTICE ARNOLD
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Silver Bow county, Montana, based upon a jury’s verdict, which judgment declared invalid the will of John A. Benson which was dated February 5, 1938, and denied the probate thereof. The will is in the following words:
“I John Benson make this my last will and dispose of my property as follows
“I give to Anson Benson to Marie Weinstock
Jennie, Mrs. Oscar $500.00
Nelson— Y. E. B. Benson— Carl W. Benson— to Lillian Nelson $500.00
Mary Benson— former wife— share and share alike.
All the furnishings of the nine rooms to go to Mr. and Mrs. John B. Nelson — with the exception of my own apartment. All my personal effects, stocks, notes and bonds go to my old pal Carl Matter.
“I appoint Carl Matter executor of this my last will to serve without bonds and hereby revoke all former wills by me made.
“Dated at Butte Montana the 5th day of February 1938
“John A. Benson.
“Subscribed by John Benson as his last will in the presence of the undersigned who signed as witnesses at his request, in his presence and in the presence of each other—
“Kathryn McLeod 2031 Utah Ave.
“Residing at St. Butte Montana
“Rosamond Hutchison 57 West Platinum
“Residing at St. Butte, Montana.”
Previously, and on January 5, 1923, Benson had executed a holographic will in the following words:
“Butte Mont. Jan. 5 — 1923.
“I John A. Benson of Butte Mont hereby make my Last will Will I give all the Property of which I Die Possessed to Anton Benson — Cecelia Anderson — Aaron Olson Mrs. J. A. Benson all share equally and Five Hundred $500.00 to Marie Wienstock to All others one $1.00. I appoint Anton Benson as executor of this Will without Bonds I give my Power to sell all of my Estate without order of Court and I revoke all The Wills by me here tofore made I Declare That This will is entirely Written Dated and signed by my hand
“John A. Benson.”
The latter will was found in his safe deposit box after his death. At the time of the execution of the contested will the existence of the first will was unknown to Carl Matter. When the will of February 5, 1938, was offered for probate, the executor, Carl Matter, submitted proof in support of the allegations in his petition. A jury having been impaneled, the contestants thereupon submitted evidence in support of their contest, and at the conclusion of all evidence the court submitted a single interrogatory to the jury, as follows: “Was John A. Benson competent to make a last will and testament at the time of the alleged signing of the instrument offered for probate as a will dated February 5, 1938?” The jury answered the interrogatory in the negative, and thereupon the judgment aforesaid was entered.
By stipulation of the parties to the contest, during the course of the trial, the issue of fraud and undue influence in procuring the execution of the will was withdrawn. The evidence of the contestants to the effect that the testator was incompetent was limited to his physical and mental condition from Wednesday, February 2, 1938, when he was taken to a hospital, to the time of his death, Sunday, February 6, 1938, at 8:45 A. M. No question was raised as to his condition prior to that time. At the time of his death testator was 71 years of age. When taken to the hospital he was suffering from a combination of diseases, described by the physicians in attendance as diabetes mellitus and left lobar pneumonia. Two physicians testified that his condition grew continually worse from the time he was taken to the hospital until the time of his death, and that during most of the time, if not all, he was in a semi-comatose condition, which was described by one of the physicians as “lethargic state, very drowsy.” The physician stated that one in such condition could be aroused but could know very little as to what was going on about him. The physicians’ calls were very brief, and one kept no records whatever, his calls being more or less cursory. One of the physicians testified that the testator had been in a dying condition the last two days of his life, being Friday and Saturday, but admitted that one in that condition could be conscious up to the moment of death.
Another witness for the contestants, who was a personal acquaintance of the testator, testified that she called on him at the hospital but he did not recognize her. She stated that when she entered his room on Saturday no one was present and that she spoke to him but he failed to recognize her or respond. She left immediately thereafter and in the hall was met by one of the nurses who told her that the patient was very low and should not see visitors. Another witness for the contestants, a close friend of the testator, testified that Benson did not recognize him on Friday and Saturday February 4 and 5, but admitted he was not at the hospital Saturday evening.
The proponents of the will for probate introduced evidence to the effect that on Wednesday just prior to going to the hospital the testator had stated to a disinterested witness that he expected to draw a new will, and again, on Saturday, shortly before executing the will, he told the same witness that he had all the facts in his mind and knew just what he was going to do in his new will. On Saturday evening he requested the executor, Carl Matter, to procure an attorney to draw his last will, which he endeavored to do but could not get the attorney to go to the hospital as he had a cold. He was given a form by the attorney which at the hospital one of the nurses recopied and inserted testamentary bequests and devises pursuant to the dictation of the testator. The subscribing witnesses, one of whom was the testator’s nurse during his last illness, gave evidence that the testator was not acting under duress, menace or fraud and was of sound mind at the time he executed the will and understood what he was doing. There is no mention in the doctors’ or nurses’ charts and records that the testator was ever in a state of coma, or unconscious.
It was further developed by the testimony that none of those present at the time of the execution of the will on February 5, 1938, knew the names or addresses of several of the persons mentioned in the will as beneficiaries, and Matter knew very little about the testator’s property holdings. It was further shown that one of. the beneficiaries under the will of January, 1923, had died prior to the execution of the will of February, 1938, and was not mentioned therein; and that a beneficiary named in the last will was born after the first will was executed.
We must bear in mind that, in the solution of the question here presented, one who contests a will has the burden of proof once the allegations of the petition for probate have been sufficiently proven. (In re Murphy’s Estate, 43 Mont. 353, 116 Pac. 1004, Ann. Cas. 1912C, 380.) Also, that a testator may dispose of his property as he sees fit, and that courts cannot make wills for persons. (In re Silver’s Estate, 98 Mont. 141, 38 Pac. (2d) 277.)
It is noted that some of the provisions in the will offered for probate are very similar to those in the will of January, 1923, which latter will was not known to exist until after testator’s death.
The court in submitting the question of competency to the jury, did so by the following instruction: “Instruction No. 8. You are instructed that when applied to the capacity required to make a valid will, the word ‘incompetent’ should be construed to apply to any person, whether sane or insane, who is, by reason of old age, disease, weakness of mind or other cause, unable to understand what property he has, the relationship which he bears to those who would naturally be the objects of his bounty and the disposition of his property he may at the time be making. ’ ’
“Instruction No. 12. You are instructed that if you believe from a preponderance of the evidence that John Benson at the time of the execution of the will of February 5, 1938, was able to understand and carry in mind the nature and situation of his property and his relation to his relatives and those around him with clear remembrance as to those in whom and those things in which he has been most interested, or was capable of understanding the act he was doing and the relation in which he stood to the objects of his bounty, or was not suffering from the effect of disease which affected his mental condition, which led him to dispose of his property otherwise than he would if he knew and understood what he was doing, then you will find that he was at the time mentally competent to make á will, and your findings should be for defendants.”
It appears to us that the physical facts surrounding the exeeution of the will and the acts of the testator speak louder than the witnesses in supporting the proponent’s contention that the testator was competent. Viewed in the light of the foregoing instructions, and from the evidence offered, it is clear that there is no question of incompetency by reason of .insanity, or senility, or disease prior to the time testator was taken to the hospital, and that at the time of the execution of the will he had in mind the names of the objects of his bounty, and also the character of his property, and the manner in which he desired to dispose of it, which in some respects corresponded to his previously expressed intention as indicated in his will of 1923. That his mind was clear and that he was competent at the time he executed the will in question, is indicated from the facts that he omitted the name in his second will of a person named in his first will who had died in the intervening time, and also named a person who was born after the first will was executed. Other persons named in his second will were unknown to Matter and the subscribing witnesses, they being the only ones present when he executed the will. It cannot be said that he was suffering from the effects of disease which affected his mental condition to such an extent that it led him to dispose of his property otherwise than he would if he knew and understood what he was doing. It appears that the testator gave intelligent direction in the execution of his will.
The contestants criticize the first devising clause of the will of February 5, 1938, as being ambiguous and meaningless. It is not necessary that a testator designate and describe property which he seeks to dispose of by his will, if it otherwise appears what is meant. Since it is in effect a residuary clause and other subsequent provisions are specific bequests, the first devising clause of the will would certainly mean, when read in connection with the opening paragraph of the will, that he intended to give all of his property, share and share alike, to the persons designated in that clause, which includes his former wife, divorced from him for many years. The subsequent clauses are merely exceptions to the entire devise, namely, $500 to Marie Weinstock and $500 to Lillian Nelson, then all furnishings of nine rooms to Mr. and Mrs. John B. Nelson, except his own apartment, and lastly “all my personal effects, stocks, notes and bonds go to my old pal Carl Matter.” There is evidence that Matter was a fishing companion and close friend of the testator, and it is quite natural that he would remember such a companion in his last will. In view of the fact that his estate went largely to others than Carl Matter and but a modest share went to Mm, it is obvious why the charge of undue influence and fraud was withdrawn during the course of the trial.
It was stipulated by counsel in the record that the estate consisted of the following property:
“Checking account in the First .National Bank,
Butte .................................... $ 714.26
Savings Account, same bank.................. 5,482.48
Gold Coin .................................. 87.50
Certificate of Indebtedness of Masonic Temple and
Interest .................................. 521.50
Unpaid balance on mortgage.......■........... 2,000.00
Flats on North Idaho, worth.................. 5,000.00
Savings account in Metals Bank.............. 904.47
$14,701.21”
Therefore, aside from the specific cash bequests of $500 each to Marie Weinstock and Lillian Nelson, all of the estate under the provisions of the will goes to the contestants and others named in the first devising clause, share and share alike, except personal effects, certificate of indebtedness of Masonic Temple and unpaid balance on a mortgage. This is clear from reading the entire context of the will.
While “personal effects” have sometimes been held to include all personal property, it.cannot be so construed in this will. The testator specifically mentioned money in two bequests and mentioned no money in the bequest to Carl Matter, but on the other hand mentioned stocks, notes and bonds. He likewise made no mention of specific property in the first devise, which therefore would include both real and personal property, subject to the exceptions thereafter named.
Carl Matter, being a “fishing pal” of the testator, would be the one most likely to be remembered with personal effects, in view of the distant relationship of some of the contestants and the testator not leaving a wife, parents, brothers, sisters or children. It is quite apparent, therefore, that he had in mind, in using the words “personal effects,” the ordinary meaning ascribed to “effects” as stated in 48 C. J. 1046: “When used with out qualifying words, generally include such tangible property as is worn or carried about the person, although not restricted to that meaning. * * * As used in wills its meaning may be derived from descriptions of articles and classifications immediately preceding, but when not restricted by the context, it may mean everything embraced in the description ‘personal property.’ ”
This court held in the case of In re Spriggs’ Estate, 70 Mont. 272, 225 Pac. 617, that the word “effects” could include both real and personal property. As above shown, however, the rule prevails that the word must be defined in connection with the entire context of the instrument wherein it appears.
While this court has held in In re Sales’ Estate, 108 Mont. 202, 89 Pac. (2d) 1043, that it will not interfere with a judgment based on a contest in the probate of a will if there is substantial evidence to support it, nevertheless, here we believe the record fails to show substantial evidence to support the verdict.
The judgment of the district court is reversed, and it is ordered that that court admit the will to probate, which is dated February 5, 1938.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Erickson concur.
|
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