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MR. JUSTICE ERICKSON
delivered the opinion of the ■ court.
This is an appeal from an order of the district court of Glacier county, discharging a writ of attachment and quashing the levy thereof. The attachment proceedings were based upon a cause of action alleging a principal-surety relationship between plaintiff and defendant, the plaintiff being the alleged surety and the defendant the alleged principal. Briefly, plaintiff’s complaint contained the following allegations: That on December 16, 1927, defendant entered into a contract to purchase goods from the W. T. Raleigh Company; that defendant induced plaintiff to subscribe such contract as a surety, by virtue of which plaintiff guaranteed and agreed to pay defendant’s obligation under the contract with the Raleigh Company; that said surety agreement was jointly entered into by plaintiff and two others, all to be joint sureties for defendant; that defendant made purchases from the Raleigh Company under his contract with them, and on the 27th day of June, 1928, he owed the company $556.08; that on October 3, 1935, the Raleigh Company commenced suit against defendant and plaintiff and the other two sureties to recover the said amount of $556.08, plus interest at eight per cent from June 27, 1928; that on December 7, 1937, the date on which plaintiff satisfied the pending Raleigh Company suit, the total amount owed by defendant to the Raleigh Company, including accumulated interest, was $1,025; that on said 7th day of December, 1937, plaintiff was compelled to, and did settle such sum due by paying to the Raleigh Company $615, and that he paid such sum as a surety upon defendant’s contract with the Raleigh Company; that plaintiff has demanded reimbursement from defendant of the said sum of $615, but defendant has refused to pay same. He thereupon prayed judgment against defendant for $615, plus interest at six per cent from December 7, 1937. From the last two allegations, it appears that plaintiff alleges that he compromised the Raleigh suit for $1,025 before it was taken to final judgment, by a payment of $615.
Upon the filing of the complaint, plaintiff filed appropriate attachment papers, and had property of defendant levied upon. Defendant, thereafter, filed his motion to have the attachment discharged, and the levy of the writ quashed upon the grounds that: (1) The allegations of plaintiff’s complaint do not show the existence of any contract between plaintiff and defendant for the “direct payment of money,” which is necessary for the proper issuance of a writ of attachment; (2) that the complaint discloses upon its face that plaintiff does not and cannot state a cause of action, which will sustain a writ of attachment. The court granted defendant’s motion to discharge, and thus we have this appeal.
Defendant, in his brief, argues that the order discharging the writ is sustainable on either and both of the above-mentioned grounds. We shall have to discuss both grounds for the motion in order to reach a proper decision of this case, which grounds present two brief questions: (1) Is an action by a surety (plaintiff) against his principal (defendant) for reimbursement to the surety of an obligation which was paid by the surety on behalf of the principal, an action based upon a “contract for the direct payment of money” as required by the attachment statute section 9256, Revised Codes? (2) Was the settlement by the plaintiff of the Raleigh Company suit prior to judgment a voluntary payment which precludes this action for reimbursement, and its ancillary attachment proceedings?
We think the first question has been answered by this court in the case of Wall v. Brookman, 72 Mont. 228, 232 Pac. 774. Although that ease involved an action by one surety against his co-surety, and upheld a writ of attachment based upon such an action, we think the reasoning and principles of law therein stated are also applicable to the present case involving an action for reimbursement by a surety against the principal debtor. We hold that where a surety is compelled to pay the principal’s obligation, the law implies a contract on the part of the principal to reimburse his surety, and that such a contract is one for the direct payment of money and a proper case for attachment proceedings. Section 8206, Revised Codes, provides that a surety “upon satisfying the obligation of the principal, is entitled to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended.” If this statute is to mean anything, it should also include the right of the surety to obtain a writ of attachment— the same right and remedy that the creditor would have against the principal debtor.
On the second question, defendant argues that when plaintiff settled the Raleigh suit prior to judgment, he was a volunteer-payer, and the case of Wall v. Brookman, supra, does not apply because there Wall was compelled by judgment to pay the principal obligation. It is the defendant’s theory that it is only under circumstances where a surety is judicially compelled to pay that gives rise to an implied contract, and that where a surety voluntarily makes payment — no contract of reimbursement can be implied. No doubt it is the law that unless a surety is legally bound to make payment on behalf of his principal, he is not entitled to reimbursement. But it certainly is not the law that a surety is legally bound to pay only after judicial determination. In this state the matter is settled by section 8205, Revised Codes, which provides: “If a surety satisfies the principal obligation, or any part thereof, whether with or without legal proceedings, the principal is bound to reimburse what he has disbursed * * * .” (Italics supplied.)
No statute could be plainer, and where words of clear, concise and ordinary meaning are used, there is no room for strained or subtle construction. (Northern Pac. Ry. Co. v. Sanders County, 66 Mont. 608, 214 Pac. 596.) It is unam biguous, and means exactly what it says. We will agree with defendant’s counsel that most of the cases regarding reimbursement to a surety are where the liability of the principal debtor and his surety had been reduced to judgment. No doubt the reason for this situation is that a final judgment would be prima facie evidence of the principal debtor’s liability to reimburse his surety who was forced to pay the original obligation. Without question the very thing contemplated by section 8205 is that a surety’s liability may arise without a judicial determination thereof; and if he can prove that he was legally bound to pay his principal’s obligation, then he can recover from his principal in an action for reimbursement. The only risk that he takes is that his proof of his principal’s liability to reimburse him may be more difficult without a prior judgment establishing liability on the original obligation. But, obviously here (assuming that plaintiff can prove that he was legally compelled to pay), if plaintiff had waited until final judgment of the Raleigh suit, he and defendant would have had to pay $1,025. To give section 8205 the unwarranted construction advanced by defendant’s counsel, would be to penalize plaintiff for acting in a businesslike manner in settling the $1,025 claim for $615.
Plaintiff alleged that he was compelled to pay defendant’s obligation to the Raleigh Company. In fact he alleged all the essentials to constitute a cause of action for reimbursement. (See Bancroft on Code Pleading, 4285; 50 C. J. 269, for proper allegations in such an action; also the case of Bielenberg v. Higgins, 85 Mont. 69, 277 Pac. 636, upholding a complaint for reimbursement.) See, also, the case of Henneke v. Strack, 101 S. W. (2d) 743, 748, Kansas City Court of Appeals, which holds that where the complaint discloses facts showing that the obligation was due and that defendant failed to pay it, it was sufficient as an allegation that plaintiff was compelled to pay. The court therein said: “When the note became due plaintiff was under the obligation to pay it and the payment was not voluntary, even though the payment might have been made without demand or suit.”
The order of the district court discharging the writ of attachment, and quashing its levy, should be set aside. It is so ordered.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
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PER CURIAM.
It is ordered that this proceeding be dismissed on motion of counsel for relator.
|
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiffs have appealed from a judgment of dismissal entered after the entry of an order sustaining defendants’ general demurrer to plaintiffs’ amended complaint. Hence the only question before us on the appeal is, Does the amended complaint state facts sufficient to constitute a cause of action? For the sake of brevity we shall hereafter refer to the amended complaint as the complaint.
The complaint contains two alleged causes of action. It seeks the reformation of a contract for the purchase of land by plain tiffs from defendants Morris and Noble, doing business as partners under various names, for specific performance of the contract as thus reformed, and for an accounting. It also asks for a decree vacating, cancelling and setting aside any and all liens against the lands of plaintiffs arising from the several bond issues hereinafter referred to.
The complaint alleges that the lands in question were included in the defendant Hammond Irrigation District; that plaintiffs’ contract of purchase was entered into on November 16, 1927; that the irrigation system consisted of a main canal and laterals supplied by a large pumping plant and an upper ditch supplied by a smaller independent pumping unit; that the upper ditch was used exclusively to irrigate a small area including plaintiffs ’ land; that the small pumping unit supplied the main canal in addition to supplying the upper ditch; that in 1921 the irrigation district had issued bonds in the sum of $70,000; that on July 1, 1927, it issued refunding bonds in the sum of $40,000 to refund the outstanding bonds of the $70,000 bond issue; that on September 1, 1927, it issued additional bonds in the sum of $27,000 for construction purposes and for the repair, maintenance and improvement of its irrigation system, though it is alleged that this bond issue was issued merely to reimburse and repay to the defendants moneys expended by them for their primary benefit, and that the moneys were not expended to improve the land or any part thereof contracted to be sold to plaintiffs ; that on August 1, 1928, it issued other bonds in the sum of $17,000, and on June 1, 1929, another $17,000 bond issue; that prior to 1928 a majority of the land owners in the district, representing a majority of the acreage, defaulted in the payment of taxes, and a majority of the acreage in the district was sold for delinquent taxes; that defendants Morris and Noble individually and as a partnership and doing business under various company names, became the purchasers and acquired a majority of the acreage through tax deeds; that the defendants thereby dominated and controlled the district; that the lands were acquired for a nominal sum, the irrigable lands at not more than $10 per acre and the non-irrigable at $1 per acre; that by reason of the issuance of tax deeds the lands were released from the $70,000 bond issue,- that since these defendants acquired the lands they also acquired the remaining outstanding bonds of the $70,000 bond issue amounting to $38,500; that the bonds were also acquired at a nominal cost or at no more than 15 per cent, of full value; that the acquisition of the lands, together with the bonds, effected a merger of the interests in the defendants, and that this accomplished a cancellation and extinguishment of the lien of the bonds; that notwithstanding the merger and -cancellation of the bonds, the defendants treated the bonds as valid obligations of the district, and as liens upon the lands, including those purchased by plaintiffs; that thereafter the defendants Morris and Noble, acting fraudulently and in collusion with the purported commissioners of the district selected by the defendants Morris and Noble, caused assessments to be levied upon the lands of plaintiffs and other lands in the district; that in carrying out their fraudulent purpose they caused the defendants McGraw, Beeman and Nertney to act as purported commissioners of the district during the years 1927 and 1928, although no one of these persons was a land owner in the district, but that they fraudulently attempted to qualify them as commissioners by causing deeds to be executed to each of them for a small tract of land in the district, which land was in most cases non-irrigable and of little or no value; that the deeds were not delivered to such persons and were executed without consideration, and that defendants Morris and Noble then required such alleged commissioners to reeonvey the tracts of lands to them; that the deeds issued to such alleged commissioners were placed of record, but the reconveyance of the same land to defendants Morris and Noble from the purported commissioners was withheld from record; that the three persons above named acted as commissioners during the years 1927 and 1928, and McDaniels took the place of Nertney during the year 1928 and his qualifications were no better than those of the others; that some of the purported commissioners were required by the defendants Morris and Noble to execute and surrender to them their written resignations as commissioners, which resignations were in the possession of defendants Morris and Noble at the time the commissioners were purporting to act as such; that defendants Morris and Noble, acting fraudulently and collusively with the commissioners, caused the $40,000 refunding bonds to be issued without consideration and have caused assessments to be levied against the lands in the district, including plaintiffs’ lands, with which to pay the refunding bonds; that they expended moneys to enlarge their pumping plant for improving other lands in the district, but without improving the irrigating system serving plaintiffs ’ lands; that the $27,000 bond issue was also issued without consideration; that the defendants in furtherance of their fraudulent design diverted revenues of the district to pay the principal and interest upon the bonds; that the two $17,000 bond issues were issued for making improvements upon lands in the district other than those belonging to plaintiffs; that all of the bonds were issued without consideration but have been used for the basis of the levy of taxes upon the lands in the district, including lands of plaintiffs; that defendants Morris and Noble caused land owners’ petitions to be presented to the commissioners though they were not signed by a majority in number or acreage as required by law as a condition precedent to the issuance of bonds; that the commissioners treated the petitions as valid and presented petitions to the court for the issuance of the bonds, causing them to be set for hearing and causing the petitions to be “fraudulently presented to the court on the false assumption that said persons were duly authorized commissioners and that the proceedings were based on valid land owners’ petitions”; that the court approved the proceedings and decreed the bonds to be liens upon the lands- in the district, including plaintiffs’ lands, and provided for the assessment thereof; that all the purported proceedings looking to the issuance of the bonds and the approval thereof by the court were without jurisdiction and the bonds were therefore void; that plaintiffs purchased the lands in question upon “the false representations that plaintiffs’ lands would not be subject to said district bond liens,” and that, had the plaintiffs not been so deceived and misled, they would not have entered into the contract; that the purported eommis sioners of the district failed to procure the approval of the irrigation district bond commission of the state of Montana on the bond issues; that under plaintiffs ’ contract of purchase they were obliged to make payments in annual installments; that their contract obligated the defendants to convey the premises to plaintiffs “free and clear of all liens or encumbrances of whatsoever kind or nature”; that the contract obligated plaintiffs to pay “all state, federal, irrigation and all other taxes and assessments which may be levied or assessed against or which may become due upon or against said property subsequent to date thereof and pay said liens, taxes or assessments when due ’ ’; that before entering into the contract plaintiffs inspected the land with a representative of defendants and that the land could only be irrigated through the highline ditch and a separate pump unit, together with a small secondary highline ditch, constructed by mutual consent; that plaintiffs ’ lands could not be and have not been irrigated from what is known as the main channel and the large pumping unit; that it was agreed that the obligation of plaintiffs for their pro rata cost of irrigation was not to exceed $2.50 per acre; that $400 a year was ample to maintain and operate the independent irrigation system of which plaintiffs’ share would not exceed $200 per annum; that it was agreed that plaintiffs were to bear no part of the main irrigation district expenses; that defendants agreed to segregate plaintiffs’ lands from the district and release the same from any expenses in connection therewith, but that they failed to do so; that defendants agreed that plaintiffs’ only obligation would be to pay the state and county taxes upon the lands and plaintiffs’ pro rata share of the cost of the independent irrigation system, together with the purchase price of the land, and that defendants would thereupon convey the lands to plaintiffs free of any lien or encumbrance whatsoever; that the contract was presented to plaintiffs by the defendants Morris and Noble with representations by them that it accurately and fully expressed the agreement between the parties, whereas in truth and in fact the contract is incomplete and inaccurate and does not fully set forth the agreement, and in consequence plaintiffs are entitled to have it reformed; that de fendants in violation of the agreement caused levies to be made against plaintiffs’ and other lands in the district to pay all the bonds, including those issued to reimburse the defendants Morris and Noble for expenditures for installation of the large pumping plant, the improvement of the main channel and the general improvement of the main district system, all of which were without benefit to plaintiffs’ lands; that because of defendants retaining complete ownership and control of plaintiffs’ lands under this contract, plaintiffs had no voice in the management of the district, and that all proceedings in connection with the bond issues and with reference to the taxation were suppressed and withheld from the plaintiffs by the defendants; that by reason of the defendants’ failure to segregate plaintiffs’ lands from the district, plaintiffs were, in compliance with the provisions of the contract, compelled to pay state and county taxes on the lands and were unable to pay the same without also paying the irrigation district taxes; that in order to prevent a cancellation of the contract plaintiffs were compelled to, and did, pay money for assessments levied during the term of the contract, such payments covering the years 1928 to 1937, both inclusive, itemized by years, amounting to a total of $7,710.80; that plaintiffs have made all payments required by the contract except the last, which was paid in escrow to the Forsyth State Bank, and defendants notified thereof; that plaintiffs thereupon demanded a deed from the defendants, free and clear of all liens and encumbrances; that defendants have failed and refused to segregate plaintiffs’ lands and deliver such deed free and clear of all liens and encumbrances, but instead thereof tendered a deed subject to a lien of all of the bonds aforesaid, which aggregate approximately $20 per acre on plaintiffs’ lands, representing a total encumbrance of approximately $9,000.
Practically all of the foregoing allegations appear in both causes of action. The second cause differs from the first in some minor matters and, particularly, in that it sets out some of the facts more in detail. No useful purpose would be subserved in pointing out the difference between the two causes of action at this time.
As before stated, our province is to determine whether the complaint states facts sufficient to entitle the plaintiffs to any relief. In other words, under a general demurrer the rule is that if the complaint states facts sufficient to entitle plaintiff to any relief, it should be overruled. Defendants assert that the complaint is insufficient for several reasons, which we will now consider.
The first question for consideration is whether at this late date the validity of any of the bond issues may be attacked. On this point we are met with the following provisions of section 7211, Revised Codes: “If no such appeal be taken within the time aforesaid, or if taken and the judgment or decree of the district court be affirmed by the supreme court, such judgment or decree of the district court shall be forever conclusive upon all the world as to the validity of such bonds and said special tax or assessment, and the same shall never be called into question in any court in the state. ’ ’
Most of the bonds, it will be noted, had been issued before plaintiffs purchased the property in question here. The then owners of the land did not question the validity of the bond issues and took no proceedings to assert the exemption of the lands purchased at delinquent tax sale from the lien of the bonds as they might have done under State ex rel. Malott v. Board of County Commrs., 89 Mont. 37, 296 Pac. 1. Hence, at this late date, the bond issues must all be regarded as valid, and we must also treat the bonds as constituting liens upon the entire property of the district, since it is not alleged that any protest was made against the confirmation of the proceedings by the district court under section 7211.
The only remaining question is whether the defendants Morris and Noble or the plaintiffs must bear the burden of these assessments. That question depends upon the contract of purchase of the lands. The written contract contained this clause: ‘ The purchaser [plaintiffs here] agrees to pay all state, county, federal irrigation and all other taxes and assessments which may be levied, or assessed against or which may become due upon or against said property subsequent to date hereof and pay said liens, taxes or assessments when due.” It then contained a clause to the effect that if the purchaser fully performs then “the sellers agree to convey to the said purchaser by a good and sufficient deed of grant, bargain and sale the whole of the premises hereinabove described, free and clear of all liens or encumbrances of whatever kind or nature, excepting liens for taxes or assessments of whatever kind or nature which the purchaser hereby assumes to pay when due.”
Plaintiffs contend that the written contract does not truly express the intention of the parties and seek its reformation. They allege that it was understood that the'cost of pumping water to irrigate their lands should not exceed $2.50 per acre or a total of $200 per annum. They do not allege why they signed the contract as written or whether they read it before signing. They simply allege that defendants represented that the contract as written expressed the agreement between the parties and that plaintiffs relied upon the representation.
As above pointed out, the complaint alleges that the plaintiffs paid assessments for ten years, amounting in the aggregate to $7,710.80, some of which appear from the complaint to have been assessments for maintenance and some for bond interest for each year commencing with the year 1928 and ending with the year 1937, both inclusive. The assessment for the year 1928 amounted to $468.90, or more than what they allege it was understood would amount to one year’s assessment for pumping costs. The assessment for 1929 amounted to $677.30 or to $3.25 per acre, which exceeded what plaintiffs allege it was understood would be the cost of the pumping charge. Each year thereafter the assessment exceeded what plaintiffs allege was understood to be the maximum charge to them.
The defendants contend that the payment of these assessments over this long period constituted a ratification by acquiescence in the contract as written. It is well settled that acquiescence in a contract after learning that it does not represent the actual agreement, destroys the right of reformation. This is the effect of our statute, section 8745, Revised Codes, and to the same effect is Cook-Reynolds Co. v. Beyer, 107 Mont. 1, 79 Pac. (2d) 658. In the Beyer Case we quoted with approval the following from 23 Ruling Case Law, 347:
“If a party acquiesces in an instrument after becoming aware of the mistake, he loses his right to reformation. The acquiescence may be direct or implied. If for instance a deed, through mistake, conveys too much land, the vendor cannot have it corrected, if, after the discovery of the mistake, he receives the purchase money and yields possession to the vendee. The acquiescence in the written instrument may be implied from an unreasonable delay in applying for redress after getting notice of the mistake. Of course there can be no acquiescence unless the party knows of the error in the instrument or the circumstances are such that he will be presumed to know of it. ’ ’
While the Beyer Case, supra, dealt with the right of reformation on the ground of mistake, the same rule applies, and with equal force, to reformation on the ground of fraud. Here the circumstances were such that plaintiff must be held to have known that the assessments embraced not only maintenance charges, but bond interest as well. If, as they now contend, the contract of purchase was intended to relieve them from assessments for the bonds of the district, they should not have been paid the assessments over such a long period. Such payments, in strict conformity with the contract as written, for such a period of time, preclude plaintiffs from asserting that the written agreement did not truly express the intention of the parties.
While ordinarily estoppel is a matter of defense which must be pleaded as such, yet it is the rule that if plaintiff’s pleading discloses that he is estopped, the question may be raised by demurrer. (Shipler v. Potomac Copper Co., 69 Mont. 86, 220 Pac. 1097.) Reformation under section 8726, Revised Codes, on the ground of fraud must be sought with reasonable diligence after the discovery of the fraud. The complaint discloses. on its face that the fraud, if any existed, should have been known as early as 1928. Relief by reformation was as available then as now. Instead of seeking reformation plain tiffs made the payments of assessments contrary to what they contend the contract called for if properly written. Under such circumstances they are too late to seek reformation. (Barfield v. Price, 40 Cal. 535; Kavanaugh v. Flavin, 35 Mont. 133, 88 Pac. 764; Akey v. Great Western B. & L. Assn., 110 Mont. 528, 104 Pac. (2d) 10.) Laches appearing on the face of the complaint, the demurrer should be sustained. (Lewis v. Belk, 219 Ala. 343, 122 So. 413.)
Plaintiffs also attempt to seek relief from such assessments because of fraud practiced upon the court in that the proceedings looking to the authorization of the bond issues were invalid because of the alleged fact that the commissioners were not qualified as commissioners and, hence had no standing to represent the district in proceedings before the court.
That part of section 7211, Revised Codes, above quoted, precludes the plaintiffs from now questioning the validity of the bond issues and assessments. Plaintiffs seek to avoid the effect of this section on the ground of fraud. The fraud alleged, however, is intrinsic and not extrinsic, and for that reason furnishes no ground for attacking the judgments. (Kennedy v. Dickie, 34 Mont. 205, 85 Pac. 982; Dunne v. Yund, 52 Mont. 24, 155 Pac. 273; Bullard v. Zimmerman, 82 Mont. 434, 268 Pac. 512; Minter v. Minter, 103 Mont. 219, 62 Pac. (2d) 233.)
The district court reached the correct conclusion in sustaining the demurrer to the complaint. The judgment appealed from is accordingly affirmed.
Me. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiff has appealed from a judgment in favor of defendant after its motion for nonsuit was sustained. The action is for damages occasioned by the collision of defendant’s train with plaintiff’s automobile, driven by plaintiff at the time of the collision.
The complaint is grounded upon negligence on the part of defendant in running its train over the crossing without ringing a bell or blowing a whistle, and alleges that plaintiff in attempting to negotiate the crossing was proceeding “in a careful and prudent manner,” and “with ordinary diligence and prudence.” The answer may be termed a general denied coupled with an affirmative plea of contributory negligence on the part of plaintiff.
On the day of the commencement of the trial plaintiff filed a reply in which he expressly admitted that he ‘ ‘ carelessly drove Ms automobile onto tbe crossing,” and followed tbe admission with allegations based upon the last clear chance, or what is usually referred to as the humanitarian doctrine. Defendant demurred to the reply upon the ground that it is insufficient in law upon its face.
The motion for nonsuit was based upon several grounds, among them being that the complaint does not state facts sufficient to constitute a cause of action, and that there was no proof of negligence on the part of defendant. Under the circumstances here it is unnecessary to refer to the evidence, other than to say that no evidence went in without objection which can be said to have changed the issues as set out in the pleadings. In the face of the admission in the reply that plaintiff himself was guilty of contributory negligence in driving upon the crossing at the time of the collision, if he has any cause of action at all it is on the doctrine of the last clear chance. Whether he can recover on that theory may not properly be tried under the pleadings as they now stand. A judgment for plaintiff cannot be based upon allegations which appear in the reply only. (Manuel v. Turner, 36 Mont. 512, 93 Pac. 808.) And a reply cannot add new grounds of relief to those alleged in the complaint. (McCarthy v. Employers’ Fire Ins. Co., 97 Mont. 540, 37 Pac. (2d) 579, 97 A. L. R. 292, and cases therein cited.)
That the shifting from simple negligence relied upon in the complaint to the doctrine of the last clear chance in the reply constitutes an abandonment of the cause of action set out' in the complaint and the assertion of a new cause of action in the reply has been definitely held by the supreme court of New Mexico in Thayer v. Denver & R. G. R. Co., 21 N. M. 330, 154 Pac. 691. That ease is well reasoned and amply sustained in principle by courts and text-writers, as a reading of the opinion will disclose. The supreme court of Missouri, by way of dictum, made the same assertion in Daniel v. Pryor, (Mo.) 227 S. W. 102, 105, as follows: “Even if the reply had set up the facts relating to the humanitarian rule, no such recovery could have been sustained under the second count, as the plaintiff’s case must stand or fall under the allegations of said count. ’ ’
Since plaintiff abandoned the right of recovery under the complaint by admitting in his reply that he was guilty of negligence in driving upon the crossing, and since he is precluded from setting up a cause of action in his reply, the court was right in sustaining the motion for nonsuit. There was no pleading upon which a verdict and judgment could have been entered in plaintiff’s favor.
One other contention of defendant must be considered as an aid to court and counsel in ease another action be instituted. Defendant contends that the case of Pollard v. Oregon Short Line Ry. Co., 92 Mont. 119, 11 Pac. (2d) 271, so far as it permits plaintiff to plead that part of the last clear chance relating to defendant’s discovery of plaintiff in a perilous position in the alternative, should be overruled. In other words, defendant contends that prior cases by this court have held that before defendant can be held liable under the doctrine of the last clear chance, it must actually have discovered plaintiff in a perilous position in time to avert the injury, and that it is not sufficient that in the exercise of proper care it should have discovered him.
It is true that this court has held as defendant contends. Those cases so holding, however, were in effect overruled in the Pollard Case when applied to a crossing or other places where the defendant had reasonable grounds to anticipate the presence of persons and negligently failed to keep a lookout and to see that ■which should have been seen. We reaffirm the holding in the Pollard Case. It brings this court in harmony with the progressive and enlightened view throughout the nation on this subject as reiterated in the Restatement of the Law of Torts. Section 479 thereof states the prevailing rule throughout the nation as follows:
“A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
“(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
“(h) the defendant
“ (i) knows of the plaintiff’s situation and realizes the helpless peril involved therein; or
“ (ii) knows of the plaintiff’s situation and has reason to realize the peril involved therein; or
“ (iii) would have discovered the plaintiff’s situation and thus had reason to realize the plaintiff’s helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff. ’ ’
Since, as before stated, the court properly granted the motion for nonsuit, the judgment 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.
Plaintiffs brought this action to quiet title to two mining claims in Fergus county. The county obtained the property through tax sale proceedings and then sold it to the plaintiff Sutter. Sutter thereafter conveyed an undivided one-half interest to plaintiff Winston. The controversy involves the validity of the tax sale proceedings. There are no important fact issues. The decisive question is one of law, viz., whether the undisputed facts warrant the finding of the court that plaintiffs are the owners of the property. The facts are these:
The property was originally patented to James B. McFatrich in May, 1907. McFatrich died on the 26th day of April, 1914, leaving surviving as his heirs at law his widow, Vesta Mc-Fatrich, and two daughters, Mrs. William M. Scudder and Mrs. Wallace F. Kirk, named as defendants. Vesta McFatrich died on November 14, 1916, leaving surviving as her heirs at law her above-named daughters. There have never been any probate proceedings in Montana or change in the record title to the premises. The property in question was assessed for the years 1921 and 1922 in the name of James B. McFatrich at 1221 Astor Street, Chicago, Illinois. The defendants had no actual notice or knowledge of the assessment for the years 1921 and 1922. They did receive what they allege was accidental notice of the assessment for the year 1923 and paid the taxes for that .year. When paying the taxes they requested the county treasurer by letter of Mr. Kirk, husband of defendant Mrs. Kirk, to mail further tax notices to Mrs. James B. McFatrich, c/o Wallace B. Kirk, 750 North Michigan Avenue, Chicago, Illinois. This request was ignored.
The property in question had already been sold for delinquent taxes for the year 1921, having been struck off to Fergus county on February 8, 1922. On August 31, 1933, Fergus county made application for a tax deed. Notice was attempted to be served by registered letter addressed to James McFatrich, at 1221 Astor Street, Chicago, and notice was posted on the property. The letter was returned undelivered. A tax notice was thereupon published for two successive weeks at least sixty days before taking the deed. The tax deed was taken on January 6, 1934. The county thereafter published notice for a public sale of the property. There was no purchaser and thereafter it was sold by Fergus county to plaintiff Sutter, on August 13, 1934. He thereupon took possession, performed development work and expended about $1,000 in prospecting the property.
Defendants contend that the assessment having been made under section 2009, Revised Codes of 1921 (now sec. 2009, Rev. Codes 1935), on the theory that the name of the owner of the property was known rather than unknown, it was incumbent upon the county in applying for the tax deed under that section to serve notice upon the owners. They argue in effect that this statute contemplates actual notice to the owner when the property is assessed to a known owner. They contend that the defect with respect to the want of notice is one going to the jurisdiction, and therefore renders the tax sale void. This contention finds support in the case of Small v. Hull, 96 Mont. 525, 32 Pac. (2d) 4, where no notice at all was given. However, in this case notice was actually given as we shall point out, though it was not received. In other words, a notice pursuant to the requirements of the statute was sent by registered letter to the record owner of the property at his last known address, and notice was posted on the property. The registered letter being returned, notice was thereafter published. Hence we cannot treat this as a case where no notice at all was given.
Under our statutes property must be assessed in the name of the owner if known, but if unknown it must be assessed to unknown owners. (Sec. 2009, supra.) A mistake in the name of the owner or supposed owner does not affect the validity of the assessment. (Sec. 2002, Rev. Codes; County of Musselshell v. Morris Development Co., 92 Mont. 201, 11 Pac. (2d) 774.) This points to the conclusion that in some respects at least the procedure for taxation of real property and enforcing collection of taxes is in rem and not in personam, and this court has so indicated in State ex rel. Freetown v. Yellowstone County, 108 Mont. 21, 88 Pac. (2d) 6, as well as in Averill Machinery Co. v. Freebury Bros., 59 Mont. 594, 198 Pac. 130. Defendants assert that the Averill Case recognizes the proceedings as in rem only when the property is actually assessed to an unknown owner. We do not so-interpret that ease. They also rely upon the cases of Hilger v. Moore, 56 Mont. 146, 182 Pac. 477, State ex rel. Tillman v. District Court, 101 Mont. 176, 53 Pac. (2d) 107, 103 A. L. R. 376, Ford Motor Co. v. Linnane, 102 Mont. 325, 57 Pac. (2d) 803, and Christofferson v. Chouteau County, 105 Mont. 577, 74 Pac. (2d) 427, as sustaining the .view that tax proceedings in Montana are in personam. The opinions in those cases use language pointing to that conclusion. Those cases state that “taxes are levied against the person, not the property ’ ’; they do not treat of the precise question here under consideration. While taxes may be levied against the person, there is no continuing personal obligation on the part of the owner, but the obligation is terminated when the tax lien is foreclosed. (Calkins v. Smith, 106 Mont. 453, 78 Pac. (2d) 74.)
We hold that proceedings for the enforcement of a tax obligation when proceedings are against the property, as here, rather than by suit under section 2253, Revised Codes, are in rem. If that were not so, it is doubtful whether taxes could ever be collected against a non-resident owner of property in this state. Proceedings to effect collection of taxes on real property by foreclosure of the tax lien are in rem and not in personam.
Notice of application for a tax deed must be served upon the owner, if known. (Sec. 2209, Rev. Codes.) In case of mining property, notice must be by registered letter addressed to any known owner at least sixty days before the purchaser applies for a deed. Where the postofSce address of the owner is unknown, the applicant “shall publish once a -week for two (2) successive weeks in a newspaper published in the county where the property is situated, a notice, ’ ’ the form of which is set out in section 2209.
Examination of the statute discloses that whether publication of notice is permissible depends, not upon whether the owner is known or unknown, or whether it is assessed to known or unknown owners, but upon the fact whether the address of the owner is known, and this is so whether the owner be known by name or unknown. Here the name of the owner and his address were thought to be known, as shown by the record. It should be noted that the letter from Mr. Kirk advising as to the address to which tax notices should be sent, was addressed to the county treasurer. The county assessor is the person who assesses property. When land has been assessed and described on the assessment book it need not be described a second time, and any person claiming the same and desiring to be assessed therefor may have his name inserted with that of the person to whom such land is assessed. (Sec. 2055, Rev. Codes.) If Mr. Kirk desired that the land be assessed to him or to Mrs. MeFatrich or her daughters, he should have taken proper steps to have his or Mrs. MeFatrich’s name, or the names of the daughters and their address inserted in the assessment book. (Sec. 2055, supra.) While we do not commend the act of the county treasurer in not seeing that this was done, yet it is true that the request as to where tax notices should be sent should have been made to, the county assessor and not to the county treasurer. Again, when the property is struck off to the county and it applies for a tax deed, the proceedings are under the control of the county clerk under the order of the county commissioners (Arnold v. Custer County, 83 Mont. 130, 269 Pac. 396), and neither the county clerk nor county commissioners would be chargeable with notice given only to the county treasurer.
It may be true that the county treasurer should not have ignored the request that further tax notices be sent to the address designated in the letter of Mr. Kirk. But whatever we may say regarding this omission, the fact remains that it is incumbent upon a property owner to take notice of the known fact that all property is taxed annually, and unless the taxes are paid that the property will be sold at tax sale (61 C. J. 565; Detroit Life Ins. Co. v. Fuller, 228 Mich. 191, 199 N. W. 699; McGuire v. Bean, 151 Wash. 474, 276 Pac. 555), and where the notice was given to the record owner at his last-known address and also published, as here, the property owner cannot complain that he did not in fact receive the notice.
The Supreme Court of the United States in Huling v. Kaw Valley R. & Imp. Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045, made this pertinent statement: “ It is, therefore, the duty of the owner of real estate, who is a non-resident, to take measures that in some way he shall be represented when his property is called into requisition; and, if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such eases, it is his misfortune, and he must abide the consequences. Such publication is “due process of law” as applied to this class of cases.” Had the registered letter not been returned to the sender, there would have been a strict compliance with the statute without the publication of notice. Since, however, that letter was returned there was some proof that the address was then unknown, which made it necessary to publish the notice.
The service of the notice here involved was in compliance with section 2209, Revised Codes, and the tax deed subsequently issued was valid unless, as defendants contend, the substance of the notice which was published was not sufficient. Defendants urge that the published notice was insufficient and defective in that it was not addressed to anyone by name. There are eases which support this view. Among them may be cited the following: Eastman v. Little, 5 N. H. 290; Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410; Williams v. Bergin, 108 Cal. 166, 41 Pac. 287; Chicago & Alton R. R. Co. v. Smith, 78 Ill. 96; Geneva v. Thompson, 200 Iowa, 1173, 206 N. W. 132. This requirement is not necessary under our statute. Section 2209 gives the form of notice that should be given, and it does not require the name of the owner of the property to be given. The proceedings to enforce the tax lien are in rem, and “if the owners are named in the proceedings and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing is not lost to them, than from any necessity that the case shall assume that form.” (See. 1405, Cooley on Taxation, 4th ed.; and see Noble v. Aune, 50 Wash. 73, 96 Pac. 688, and 61 C. J. 1152.)
The next question presented by defendants is that the notice of application for tax deed does not sufficiently describe the property, in that it does not state that the property is located in Fergus county. It does appear, however, that the notice is signed by the county clerk of Fergus county, and recites that on a named date the undersigned would apply to the county treasurer of Fergus county for a tax deed. The notice also described the claims by name and survey number. The rule is that “the state and county in which the land is located need not be stated in direct connection with the description where such can be readily ascertained from the notice.” (61 C. J. 1265.) The description in the notice was sufficient, since anyone interested would have no difficulty in ascertaining what property was involved.
Rehearing denied June 15, 1940.
It is further contended that the notice is defective in that it includes property owned by different owners. Whether this renders the notice ineffectual is a question on which the authorities are divided. (61 C. J. 1265, notes 45 and 46.) Our statute (sec. 2209, supra) in giving the form of notice did not contemplate that a single notice could not include property owned by different persons. If the legislature contemplated a separate notice for each piece of property under separate ownership, it would have chosen language to indicate such a purpose. Not having done so, we are constrained to follow those decisions which hold that a notice may include tracts of land belonging to more than one owner, as here.
It is likewise contended that the tax deed is invalid for the reason that it states that the property was assessed to Mrs. McFatrieh, whereas the undisputed fact is that it was assessed to James B. McFatrieh. This is merely a clerical error which does not affect the validity of the deed. (Gallash v. Willis, 90 Mont. 148, 300 Pac. 569.)
The trial court was correct in sustaining the validity of the tax deed. The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
|
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MR. JUSTICE ERICKSON
delivered the opinion of the court.
This appeal is taken by the defendants from the judgment entered in the district court of Missoula county awarding damages to the plaintiff for personal injuries sustained by him as a result of a collision between an automobile owned by one of the defendants and driven by the other, and the automobile owned by the plaintiff in which he was riding at the time. The action was tried before a jury which returned the verdict awarding damages in the sum of $9,500. On this appeal defendants attack the verdict and judgment solely upon the ground that they are excessive; that they are not sustained or supported by the evidence, the pleadings or by law; and that they are the result of passion or prejudice on the part of the jury.
No question is raised as to the liability of the defendants. No argument is made that anything except the size of the verdict indicates passion or prejudice on the part of the jury. Several medical experts, including plaintiff’s doctor employed by the defendants, testified. The three questions presented here by the specifications of error then are:
1. Does the amount of the verdict show passion or prejudice under subdivision 5, section 9397, Revised Codes, which provides that a new trial may be granted where there are “excessive damages, appearing to have been given under the influence of passion or prejudice”?
2. Is the evidence sufficient to sustain a judgment in the amount awarded under subdivision 6 of section 9397, supra, which provides that a new trial'shall be granted where there is an “insufficiency of the evidence to justify the verdict”?
3. Did the court err in overruling the motion to strike testimony of certain witnesses relative to “a boil condition” of the plaintiff after the accident ?
Considering the third question first, several witnesses testified that after the accident many boils appeared on the plain'tiff’s head, neck and shoulders and particularly on the shoulder being treated for the injury plaintiff claimed to have received. After testimony of plaintiff’s doctor, a motion was made by defendants seeking to have the testimony of the doctor and other witnesses stricken as to the boil condition, the defendants reciting in their motion that the testimony was “not sufficient * * * to show that the boil condition was proximately caused by the injury or by any proper treatment given for injuries received in this accident.” Counsel for plaintiff objected that the motion was premature as there was medical testimony to be offered on this point. The court denied the motion on the statement of counsel for plaintiff that further medical testimony would be offered. In its ruling the court concluded with these words, “The motion will now be denied and it may be renewed later.”
After this another medical expert was called who testified in response to a hypothetical question that in his opinion, based on the hypothesis stated, the boils were one of the results of the accident. The motion was not then, or at all, renewed. Subsequently defendants offered an instruction which was given on the subject of the boils in these words: “You are instructed that if you find for the plaintiff you shall not allow any damage for the boils the plaintiff had following the accident unless the plaintiff has proven by a preponderance of the evidence that such boils were proximately caused by the injuries to plaintiff, if any, or by treatment by a competent physician of the injuries, if any, sustained by the plaintiff in the accident.”
The failure to renew the objection and the offer of the instruction constituted an abandonment of the motion, and the attempt to put the trial court in error at this time for its failure to strike the testimony, had it been insufficient for the purpose for which it was offered, merits no consideration here.
The second argument advanced by the defendants is that the evidence is insufficient to support an award of $9,500. The question of excessive verdicts has often been before this court, and it is unnecessary to discuss again all that has been said in these many cases. The rules for the guidance of the courts, both trial and appellate, are well settled by the statute and the decisions in this state. The rule is stated in Sullivan v. City of Butte, 87 Mont. 98, 285 Pac. 184: “ ‘A verdict in an action at law, attacked on the ground of insufficiency of the evidence to sustain it, will not be set aside on appeal, where the evidence is substantial, though conflicting, and the lower court has set the stamp of its approval on the findings by denying a motion for a new trial, in the absence of any showing of an abuse of discretion.’ (Doane v. Marquisee, 63 Mont. 166, 206 Pac. 426, 428; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 Pac. 253; Moelleur v. Moelleur, 55 Mont. 30, 173 Pac. 419.)” And also: “Manifestly, in personal injury actions, there is no measuring stick by which to determine the amount of damages to be awarded, other than the intelligence of a fair and impartial jury governed by a sense of justice; each ease must of necessity depend upon its own peculiar facts. The rule was succinctly stated by Mr. Justice Holloway, speaking for the court in Kelley v. John R. Daily Co., 56 Mont. 63, 181 Pac. 326, 332, in the following language: ‘In passing we may observe that the fact that a verdict appears to be excessive is not a ground for a motion for a new trial. It is only when the excessive damages appear to have been given under the influence of passion or prejudice that a new trial may be granted for that reason. * * * There is no standard fixed by law for measuring the value of human health or happiness. In every case of personal injury a wide latitude is allowed for the exercise of the judgment of the jury, and, unless it appears that the amount awarded is so grossly out of all proportion to the injury received as to shock the conscience, this court cannot substitute its judgment for that of the jury.’ To the same effect are: Jones v. Shannon, 55 Mont. 225, 175 Pac. 882; Burns v. Eminger, 84 Mont. 397, 276 Pac. 437.”
An examination of the record, with these rules in mind, convinces us that the trial court did not err in denying the motion. The trial court apparently had the Sullivan Case, supra, in mind when it stated in its order denying the motion for new trial that the verdict appeared excessive but not shockingly so.
Appellants devote much of their brief to a discussion of conflicting testimony of medical experts as to the nature of plaintiff’s injury, the degree of disability, and its permanency. There is direct testimony to the effect that his injury is permanent, or likely to be so; that the injury was of such a degree that plaintiff could not follow his usual occupation; that his pain and suffering were great; that prior to the injury he had an earning capacity of $120 per month; that he had already lost $960 in wages; that he had incurred doctor bills, up to the time of the trial, in the amount of $176; that continued treatment was necessary; that the pain, suffering and worry had affected his general health; and that his automobile had been damaged in the sum of $275. Some of the testimony relative to these questions was in conflict, and the jury resolved the conflicting testimony in plaintiff’s favor. We are bound by that determination. The evidence was sufficient, within subdivision 6 of section 9397, supra, to sustain the judgment, and the trial court, in the exercise of its discretion, properly denied the motion for a new trial on this ground.
Since the objection concerning the alleged passion and prejudice of the jury is based only on the amount of the award, and since the court ruled that the amount of the award was supported by testimony, which we find was true, there is no basis for the specification, and what we have said herein disposes of it.
The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
|
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] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
Defendants have appealed from a judgment in plaintiff’s favor quieting title to certain land -in Glacier county, in an action in which they had filed a cross-complaint to quiet title in themselves.
In 1919 defendants, then owners of the property, gave plaintiff a mortgage thereon, which it foreclosed in 1921. Plaintiff has claimed title since 1926 as successor in interest to the grantee named in the sheriff’s deed.
The defendants defaulted in the foreclosure suit and it is their contention here that the decree of foreclosure is void because of alleged defects in the sheriff’s return of service of summons. That return is as follows, the words not italicized constituting the printed form on the back of the summons, and the words italicized having been inserted with pen and ink by the deputy sheriff:
“Office of the Sheriff
“County of Glacier,
“State of Montana.
“I hereby certify, that I have received the within Summons on the 30th day of Sept. A. D. 1921, and personally served the same on the 30th day of Sept. A. D. 1921, upon Leo Brown Eva Brown by delivering to said Leo Brown & Eva Brown per sonally in the County of Glacier a copy of said summons, and a copy of the Complaint referred to in said Summons.
“Dated at Browning this 30th day of Sept. A. D. 1921.
“P. A. Davis, Sheriff
“By Chas. Simon, Dpty.
“Service ..............$2.00
“Copy ...............$-
“Mileage .............$ .40
“Total ...............$2.40”
The alleged defects in the return are, first, that the return merely states that service was made upon Leo Brown and Eva Brown without identifying them as the defendants in the case; second, that it states that it was made upon them “by delivering to said Leo Brown and Eva Brown personally in the county of Glacier a copy of said summons and a copy of the complaint referred to in said summons. ’ ’
In the present case the trial court set forth in its findings the return in the foreclosure suit and' expressly stated that no other evidence was submitted to it with reference to the service. The trial judge then proceeded to make further excellently detailed and complete findings and conclusions and to enter decree in plaintiff’s favor.
This is a collateral attack upon the foreclosure decree. By “collateral attack” is meant every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or on appeal thereof, and' except suits brought to obtain decrees declaring judgments to be void ab initio. (Burke v. Inter-State Savings & Loan Assn., 25 Mont. 315, 64 Pac. 879, 87 Am. St. Rep. 416; Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064; Sharkey v. City of Butte, 52 Mont. 16, 155 Pac. 266; Thompson v. Chicago, Burlington & Quincy R. R. Co., 78 Mont. 170, 253 Pac. 313; State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 Pac. (2d) 39; Frisbee v. Coburn, 101 Mont. 58, 52 Pac. (2d) 882; Hanrahan v. Andersen, 108 Mont. 218, 90 Pac. (2d) 494.) Thus, a quiet title suit is a collateral attack on former judgments or records. (Burke v. Inter-State Savings & Loan Assn., supra; Thompson v. Chicago, Burlington & Quincy R. R. Co., supra; Frisbee v. Coburn, supra.)
On collateral attack upon a judgment of a domestic court of general jurisdiction acting within its ordinary scope, the presumption of jurisdiction over the persons of the parties is conclusive, unless a lack of it affirmatively appears upon the face of the judgment roll. (Hanrahan v. Andersen, supra, and cases therein cited.)
The first objection that Leo Brown and Eva Brown were not identified in the return as the defendants is immaterial since the names there stated are identical with the names of the defendants in the suit, and identity of persons is presumed from identity of names. (Subd. 25, sec. 10606, Rev. Codes.)
The second objection is quite technical. The statutory requirement of course is that personal service be made by delivering a copy of the summons together with a copy of the complaint to each defendant, except that if two or more of them reside within the same county a copy of the complaint need be delivered to only one of them. (Secs. 9110, 9111, Rev. Codes.) Appellants’ contention is that the return shows that only one copy of the summons was delivered to the defendants, thus constituting a joint service, which is not valid service under the statute. But even if only one copy of the summons was actually used that fact would not necessarily indicate a joint service, since the one copy might in some way have been used successively in serving each party individually. Thus if we interpret that part of the return literally as indicating that only one copy of the summons was delivered to the two defendants, it does not follow that the record affirmatively discloses a want of jurisdiction. The most that can be said is that this part of the return is ambiguous. The ambiguity may well have arisen out of the fact that the words “a copy of said summons” constituted part of the printed form and that the deputy merely omitted inserting words to show anything other than the date of receipt and service of the summons and the names of the parties served and of the town and county, or that he considered anything further unnecessary. The portion of the form provided for showing costs, however, was filled ont tó show that two services were made. Since it is presumed that official duty has been properly performed and no wrongful charge made, that part of the return constitutes some evidence at least that copies of the summons were served upon each defendant.
Furthermore, in the findings of fact in the foreclosure suit the court expressly found that the summons was “duly and regularly served upon the defendants and each of them.” It does not appear whether the court received other evidence of the service than the return, but the recital is clearly entitled to due credit in the absence of matter in the record affirmatively demonstrating its manifest untruth, which is not here the case.
Our search of the authorities indicates that, although the precedents are not numerous, like returns are generally considered sufficient, Texas apparently being the only state whose courts hold otherwise. The majority rule is expressed in McMillon v. Harrison, 66 Fla. 200, 63 So. 427, 49 L. R. A. (n. s.) 946; Keith Bros. & Co. v. Stiles, 92 Wis. 15, 19, 65 N. W. 860; Martin v. Hargardine, 46 Ill. 322; Greenman v. Harvey, 53 Ill. 386; Isley v. Boon, 113 N. C. 249, 18 S. E. 174; and see note 49 L. R. A. (n. s.) 946.
None of these cases cited seems quite as strong as the present one, in which the inclusion in the printed form of the words “a copy of said summons” can readily have led to the ambiguity, and the sheriff’s charge for the service and the court’s express findings of fact both tend to cure any doubt about the return and to negative the alleged lack of service.
In the McMillon and Martin Cases, supra, emphasis was placed upon the effect of the statement of costs, while in the Keith, Isley and Greenman Cases, supra, it was held that the language used in the return “clearly imports,” or “is not inconsistent with the idea” that a copy was delivered to each defendant, or that such delivery of a copy to each “may reasonably be inferred therefrom.”
Most of the Texas cases contra seem to involve either direct attacks or clearly distinguishable fact situations, but in so far as. any of them may be considered to apply to the facts in this case we must decline to follow them.
Without expressly approving any of the decisions cited above with reference to the service, we regard them as establishing the correct rule on collateral attack, in weaker cases than the present one. Since it does not appear affirmatively upon the face of the record in the foreclosure suit that there was a lack of jurisdiction in the court, the decree appealed from in the present suit must be, and it is hereby, affirmed.
Associate Justices Morris, Angstman, Arnold and Erickson concur.
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment in favor of the defendant. The action is one seeking to set aside a judgment entered in a former action between the same parties and tried in the same court wherein M. Khan prevailed on two causes of action and plaintiff here on only one cause. Plaintiff in this action takes the view that the judgment in the other action was obtained by fraud. The court expressly found that the evidence in this case is insufficient to show that defendant in this action practiced “actual or constructive fraud extrinsic in nature” upon the plaintiff in obtaining the judgment in the other action.
The evidence supports a conclusion that the judgment in the former action was obtained by the defendant through and by means of perjured testimony. Also there was evidence, though conflicting, which tended to show that counsel for plaintiff in the former action but who does not appear in this case, failed and neglected to file a motion for new trial in the first action after promising the plaintiff that he would do so. As before stated, this evidence is disputed. There is also evidence tending to show that the plaintiff and his counsel were taken by surprise in the former action in that the defendant was permitted to introduce evidence that enlarged the issues as set forth in the pleadings. On this point too the evidence was conflicting.
Reduced to its.last analysis, plaintiff’s claim must stand or fall upon the effect of perjured evidence in the former case. It has been held by this court that a judgment will not be set aside upon the ground of fraud unless that fraud is extrinsic and collateral to the matter tried. (Kennedy v. Dickie, 34 Mont. 205, 85 Pac. 982; Dunne v. Yund, 52 Mont. 24, 155 Pac. 273; Clark v. Clark, 64 Mont. 386, 210 Pac. 93; Moser v. Fuller, 107 Mont. 424, 86 Pac. (2d) 1.)
Plaintiff relies upon the ease of Bullard v. Zimmerman, 88 Mont. 271, 292 Pac. 730, but there the fraud relied upon was fraud in keeping the adversary from appearing in court. It was extrinsic fraud without doubt. He also relies upon the ease of State ex rel. Sparrenberger v. District Court, 66 Mont. 496, 214 Pac. 85, 33 A. L. R. 464, but there too the fraud prevented the adverse party from being properly served with summons and, hence, from getting into court. It too was extrinsic.
That false, fraudulent and perjured testimony and the negligence and unskillfulness of counsel are not ground for setting aside a judgment is well settled. (34 C. J. 284, 285; Donovan v. Miller, 12 Ida. 600, 88 Pac. 82, 10 Ann. Cas. 444, 9 L. R. A. (n. s.) 524; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 43 Sup. Ct. 458, 67 L. Ed. 719; Steele v. Culver, 157 Mich. 344, 122 N. W. 95, 23 A. L. R. 564; Jacobowitz v. Herson, 268 N. Y. 130, 197 N. E. 169, 99 A. L. R. 1198; Hayward v. Larrabee, 106 Minn. 210, 118 N. W. 795, 130 Am. St. Rep. 606; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 25 Am. St. Rep. 159, 13 L. R. A. 336; Bolden v. Sloss-Sheffield Steel & I. Co., 215 Ala. 334, 110 So. 574, 49 A. L. R. 1206, and, see, Federal Land Bank of Spokane v. Gallatin Co., 84 Mont. 98, 274 Pac. 288.) The rule and the reason for it are stated in the case of Caldwell v. Taylor, 218 Cal. 471, 23 Pac. (2d) 758, 88 A. L. R. 1194, as follows: ‘ ‘ An analysis of the authorities upon the question of what fraud will warrant the aid of equity indicates that only upon proof of extrinsic and collateral fraud can plaintiff seek and secure equitable relief from the judgment. A showing of fraud practiced in the trial of the original action will not suffice. The authorities hold this to be intrinsic fraud, and uniformly hold that since there must be an end to litigation, and the fraud was part of the case presented in the former action, equity will not reopen the litigation.” (See, also, annotation 88 A. L. R. 1201.)
Rehearing denied September 26, 1940.
Plaintiff failed to make a showing entitling him to have the judgment set aside. If plaintiff has any remedy for fraud practiced upon him in obtaining the judgment that remedy under the circumstances here does not consist of the right to have the judgment set aside.
From what we have said, the court was correct in holding that there was no proof of extrinsic fraud entitling the plaintiff to have the judgment in question set aside. 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.
The relatrix, Alberta R. Flynn, respondent herein, and the appellant, Ruby S. Ellis, were rival candidates on the same party ticket for nomination to the office of county superintendent of schools at the primary election held in Blaine county in July, 1938., The appellant was nominated and became a candidate in the election held in November, 1938, whereupon she received the highest number of votes, was duly issued a certificate of election, and qualified by filing her oath of office and bond within the time required by law.
The respondent had been the incumbent in the above-mentioned office for the two years previous to January 3, 1939, the date upon which the appellant entered upon the discharge of her official duties. On the desk in the office she found a note from respondent wishing her success and turning the key of the office over to her. Thereupon the respondent accepted a teaching position in the public schools of Chinook.
On or about February 23, 1939, the respondent filed a proceeding in quo warranto against the appellant, seeking to oust her from office, alleging that she did not possess the requisite qualifications, in that she did not hold a state certificate to teach, as required by section 950.1, Revised Codes. The matter was tried before the court, and among other findings it found that the appellant neither had such required certificate at the time of the primary election, at the time of the general election, nor at the time- she entered upon the discharge of her duties, but that she had obtained such certificate on June 8, 1939. Judgment was entered upon the findings, ousting the appellant from office, which judgment declared that the respondent was entitled to the office, inasmuch as the appellant was at all times ineligible to hold the office. The respondent since July 27, 1939, has discharged the duties of the office.
It is the contention of appellant that the respondent abandoned the office by her acts in turning over the key, quitting the office and accepting employment as a public school teacher. ■ Appellant does not contend that she herself is entitled to the office. The respondent, on the other hand, contends that no vacancy existed in the office, as the election was void and no qualified person was elected, and, therefore, that she as a holdover is entitled to the office.
That the acts of respondent constituted abandonment is well settled. In Rainwater v. State ex rel. Strickland, 237 Ala. 482, 187 So. 484, at page 487, 121 A. L. R. 981, at page 986, we find the following language: “ ‘Abandonment is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser. Although the intention may be inferred, an office cannot be abandoned without an intention by the officer to relinquish it, and such a relinquishment is not produced merely by a temporary nonuser or neglect of duty. While, in order to constitute an abandonment of an office, it must be total, and under such circumstances as clearly to indicate an absolute relinquishment, the determination of the question whether an officer has abandoned an office is dependent upon his overt acts rather than upon his declared intention, and the law will infer a relinquishment where the conduct of the officer indicates that he has completely abandoned the duties of the office.’ (46 C. J. 980, sec. 137.)
“ ‘The abandonment of an office may be indicated by the action of the incumbent in voluntarily surrendering it to another under a mistaken belief that the latter has been elected as his rightful successor.’ (22 R. C. L. 560, sec. 264; Attorney General ex rel. Moreland v. Maybury, 141 Mich. 31, 104 N. W. 324, 113 Am. St. Rep. 512, and note, p. 518.)
“And if the incumbent, after competing with an opponent as a candidate in an election, is defeated, and by official action recognizes the election of his opponent and surrenders the office to him, he, as a matter of law, abandons the office and is estopped to invoke the court’s jurisdiction to inquire into the validity of such election, either to oust his opponent or have himself reinstated in the office. (Reg. v. Greene, 2 Q. B. 460, 6 Juris (1842) 777.)” (See, also, State ex rel. Klick v. Wittmer, 50 Mont. 22, 144 Pac. 648.)
The respondent contends that had she known that the appellant did not possess the requisite qualifications she would not have abandoned the office to her. We believe this avails the respondent nothing as a justification. The provisions of the law for hold-overs are for the benefit of the office and not the officeholder. We observe, however, that although the respondent was'defeated in the July primary election and was not a candidate in the November election, she made no serious effort to discover the facts of appellant’s lack of qualifications until long after the appellant had commenced her term of office. Even were we to hold that respondent’s acts did not constitute abandonment, it appears that her successor was elected and qualified within the meaning of the constitutional provision which would prevent a holding over. A certificate of election was issued to her and she filed her official bond and oath within the time required by law. To “qualify” means to file an official bond and oath.
The law under which the respondent was elected, section 5 of Article XVI, Montana Constitution, provides that she shall hold office for two years and until her successor is elected and qualified. Section 10 of Article IX, Montana Constitution, reads as follows: “All persons possessing the qualifications for suffrage prescribed by section 2 of this Article as amended and such other qualifications as the legislative assembly may by law prescribe, shall be eligible to hold the office of county superintendent of schools or any other school district office. ’ ’
Section 950.1, Revised Codes, recites that, “No person shall be eligible to the office of county superintendent of schools in any county of Montana, who, in addition to the qualifications required by the constitution, of the state of Montana, is not the holder of a state certificate offered by the state of Montana, granted by endorsement upon graduation from a standard normal school, or college, or university; or who is not the holder of a certificate offered by the state of Montana, designated as a state certificate granted by examination in accordance with the rules and regulations as prescribed by the state board of educational examiners; and who has not had at least three years successful experience as a teacher, principal or superintendent of public schools. The above qualifications shall not prohibit the re-election of present incumbents.”
Section 410, Revised Codes, provides: “No person is capable of holding a civil office in this state, who at the time of his election or appointment is not of the age of twenty-one years and a citizen of this state.” Thus the qualifications which must, under the statute, be present at the time of election, are limited to age and residence, so far as the particular office in question is concerned.
That all legal qualifications for holding public office are not in every instance required to be present at the time of election, is seen by reading provisions in the state and federal Constitutions relating to senators, representatives, judges, etc.; e. g., section 3, Article I, United States Constitution: “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”
In 22 Ruling Case Law, section 43, page 403, we find this language: “The courts do not agree as to the time at which the eligibility or qualification of a person for public office must be determined. The question has arisen most frequently under statutory or constitutional provisions using the words ‘eligible’ in connection with certain qualifications or disqualifications for public office. One line of authorities holds that the time of election is the proper time to test whether a person is qualified or eligible, and that it is immaterial that a person then disqualified removes the disqualification before actually entering on the duties of the office. * * * But the weight of authority appears to be that where the word ‘eligibility’ is used in connection with an office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold the office, rather than the qualification to be elected to the office. Hence a disqualification existing at the time of election may be removed before induction into office, or before the term of office to which such person is elected begins.”
Again, at page 400 of the same volume of Ruling Case Law, we find the following language: “All persons are normally eligible and qualified for office unless they are excluded by some constitutional or legal disqualification. Hence after one has been appointed to office there is a presumption that he possesses the prescribed qualifications and that the person appointing him properly looked into and determined the question of his eligibility.”
Here the appellant, of course, did not possess all of the qualifications until June 8, 1939.' She was not ousted until July, after having served as a cZe facto officer for nearly six months. That each of the parties involved in this proceeding was a de facto officer while discharging the duties of the office of county superintendent is apparent under the rule laid down in State ex rel. Buckner v. Mayor of Butte, 41 Mont. 377, 109 Pac. 710, 712. Therein the following language was adopted by this court: “The public has an interest in the continuous and unbroken discharge of official duty, and the necessities thereof, and cannot wait to try the title of conflicting claimants to an office. For this reason it has come to be held, so often as to be now settled, that the official acts of the incumbent of an office, with whom alone the public can, under the circumstances, transact business, shall be regarded as legal. The affairs of society could not be carried on in any other way than by treating as valid the official acts of persons de facto in office. ’ ’
For the reasons given, the judgment of the district court is affirmed wherein it ousts appellant and awards costs to respondent, but is reversed wherein it adjudges and decrees respondent entitled to hold the office of county superintendent of schools.
The district court is directed under the provisions of section 512, Kevised Codes, to give notice to the board of county commissioners of Blaine county that a vacancy exists in the office of county superintendent of schools. Each party shall pay her own costs in this appeal.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Erickson concur.
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PER CURIAM.
Application for alternative writ of mandate herein denied. (Concurred in by Chief Justice Johnson and Associate Justices Erickson and Arnold.)
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Richard L. Jackson and Paula Jackson (Jacksons) appeal from the decision of the Eleventh Judicial District Court, Flathead County, determining that Stageline Estates Homeowners’ Association, Inc.’s (Association’s) assessments against the Jacksons was in accordance with the Association’s Bylaws, Articles of Incorporation, and not beyond the scope of the Declaration of Covenants. The District Court entered judgment in favor of the Association in the amount of $3,286 representing delinquent assessments plus interest and attorney fees and costs. We affirm in part and remand for further consideration.
Factual and Procedural Background
¶2 Restrictive covenants concerning Stageline Estates subdivision in Flathead County were filed on April 21,1988 by way of a document entitled “Declaration of Covenants, Conditions and Restrictions” (Declaration). The Declaration established a Property Owners’ Association (POA). Pursuant to the Declaration, each owner of a lot subj ect to the covenants automatically became a member of the POA. The Declaration states that the purpose of the POA “shall be to maintain and provide for snow removal on the private road and any other private road utilized by the members to their lots, and to provide the architectural control for the subdivision.” In addition, the Declaration provided a means for the POA to annually assess the members for the maintenance of the roads, including snow removal. Finally, the Declaration provided that its provisions could be amended by an affirmative vote of 75% of its members.
¶3 On April 29,1991, the Association filed Articles of Incorporation with the Secretary of State as a nonprofit corporation. This document allegedly incorporated the original POA created by the Declaration. In addition, the Association enacted Bylaws on November 15, 1991. According to the Articles of Incorporation, the Association’s purpose is “[t]o promote the health, safety and welfare of the residents ... and to provide for the maintenance, preservation and architectural control of the residence lots and common areas ....” In addition, the Bylaws provide the Association with authority to assess the members for “the purpose of promoting the recreation, health, safety and welfare of the residents of the Properties, and in particular for the improvement or maintenance of the Properties, and for the facilities devoted to the use and enjoyment of the Common Area.” These assessments may be imposed annually or pursuant to a “special assessment.”
¶4 The Jacksons purchased their property within the subdivision on November 25, 1991. The Jacksons acknowledge that they purchased their property subject to covenants contained in the Declaration, but allege that the Articles of Incorporation and Bylaws were not recorded at the time they purchased their property and thus the terms of those documents are not binding on them.
¶5 The Jacksons paid annual assessments for the years 1992-94. The Jacksons stopped paying the assessments in 1995 and have not paid since. As a result, the Association filed a complaint in Justice Court on August 9, 1996 seeking to recover the unpaid assessments plus interest, attorney fees and costs. The Justice Court entered judgment in favor of the Association in the amount of $1,634. The Jacksons appealed to the District Court. The Association filed a second complaint in District Court. The Jacksons filed an answer and counterclaim asserting that they did not purchase their property subject to the Articles of Incorporation and Bylaws of the Association. The parties agreed to consolidate the Jacksons’ appeal from Justice Court with the new complaint instituted by the Association. The District Court entered judgment in favor of the Association in the amount of $3,286 concluding that the Association’s imposition of assessments was in accordance with its Articles of Incorporation and Bylaws, and not beyond the scope of the Declaration. The Jacksons appeal to this Court seeking a reversal of the District Court judgment and a declaration that they are not bound by the terms of the Articles of Incorporation and Bylaws. We affirm in part and remand for further consideration.
Discussion
¶6 The standard of review of a district court’s finding of fact is whether the court’s findings of fact are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. We limit the scope of this opinion to the issue of whether the Jacksons are responsible for past-due assessments for the years 1995-97. The Jacksons assert that they are not paying assessments because their property is subject only to the assessments authorized in the Declaration. The Declaration limits assessments to those collected for road maintenance and snow removal. The District Court found that the assessments collected by the Association for the years in question “seem to be used exclusively for road-related purposes” and are in concert with the overall intent of the Declaration. The court, therefore, concluded that the Association’s imposition of the assessments against the Jacksons was in accordance with its Articles of Incorporation and Bylaws and not beyond the scope of the Declaration and held that the Jacksons are liable for the unpaid fees.
¶7 The Jacksons do not seek to avoid their obligation to pay the costs of road maintenance and snow removal. However, the Jacksons contend that the authority given the Association in the Articles of Incorporation and Bylaws exceeds that contemplated by the Declaration and, thus, the Jacksons seek to preserve their right to object to the terms of the Articles of Incorporation and Bylaws in the event the Association seeks to enforce assessments other than those related to road maintenance. The District Court’s finding that the assessments collected to date by the Association were for the sole purpose of maintaining the road is not clearly erroneous. Additionally, the District Court’s conclusion that the assessments for road maintenance do not exceed the scope of the Declaration is correct. Therefore, since the road maintenance assessments are consistent with Article IV, sec. 5 of the Declaration, we hold that the Jacksons are responsible for the past-due assessments plus interest.
¶8 The Jacksons seek a declaration that their property is not bound by the terms of the Articles of Incorporation and Bylaws. The District Court did not rule on the merits of the Jacksons’ assertion that the Association has exceeded its authority in expanding the terms of the Declaration via the Articles of Incorporation and Bylaws. We remand to the District Court the issue of whether the Articles of Incorporation and Bylaws are binding on the Jacksons. Affirmed in part and remanded.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and GRAY concur.
|
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 The Fifth Judicial District Court, Jefferson County, declared invalid a petition for referendum to repeal a city ordinance requiring metering of water in the Town of Whitehall’s water system. We affirm.
¶2 We address the following issues raised on appeal:
¶3 1. Is this action barred under the applicable statute of limitation?
¶4 2. Did the District Court err when it determined that Town of Whitehall Ordinance Chapter 4.00 was administrative rather than legislative and was therefore exempt from the referendum proceedings allowed under the Montana Constitution and § 7-5-131(1), MCA?
¶5 The Town of Whitehall is a municipality located in Jefferson County, Montana. The Respondents and Appellants appear in their capacity as electors and taxpayers of the Town of Whitehall.
¶6 Whitehall has historically charged its residents a flat rate for water services. However, changes in and improvements to the town’s water system were pending and undergoing public discussion for several years prior to this lawsuit. In August 1992, in recognition that improvements were needed to the town’s water system as a whole, the Montana Public Service Commission (PSC) had approved an increase in water rates. At that time, the PSC directed the town to explore options for reducing its consumption of water, including the use of water meters. In May 1994, the Whitehall Town Council had passed a resolution approving the submission of an application to the State of Montana Department of Commerce for a $350,000 Community Development Block Grant to be used as partial funding for a water system improvement project, and in June 1995, the Town of Whitehall, through its mayor, contracted with the Department of Commerce for that block grant. In August 1995, the Whitehall Town Council had passed a loan resolution authorizing the town to borrow $450,000 from the United States Department of Agriculture Rural Economic Community Development Program to be used for the water system improvement project. In September 1995, Whitehall’s mayor had entered into a Treasure State Endowment Program Grant Contract with the Department of Commerce for a $500,000 grant to be used for the water system improvement project.
¶7 On November 29, 1995, the Whitehall Town Council adopted Whitehall Town Ordinance Chapter 4.00, entitled “Regulation of Water Use.” This Ordinance Chapter required, in part, that a water meter be installed on the service pipe for each water user served by the town water system. Another part of the Ordinance provided that Whitehall’s water rates would no longer be set by flat rate, but would be determined by the amount of water used by each household and each business, as measured by the water meters.
¶8 In January 1996, the Appellants filed with the office of the Jefferson County Clerk and Recorder a petition to place a referendum on the ballot for a special election to repeal Whitehall Town Ordinance Chapter 4.00. The town’s attorney approved the petition for form and compliance with §§ 7-5-131 and -132, MCA, and submitted it to the Jefferson County election administrator to be placed on the ballot for special election.
¶9 On January 31,1996, the Whitehall Town Council directed that suit be brought in District Court pursuant to § 7-5-135, MCA, to determine the validity and constitutionality of the referendum petition. On February 13, 1996, the town filed a complaint seeking a declaration that the petition for referendum was invalid under § 7-5-131, MCA, and the Montana Constitution. Following the parties’ submission of stipulated facts, briefing, and oral argument, the District Court found “generally” for the town and dismissed the petition for a referendum. The court determined that this was an administrative, as opposed to legislative, matter and was thus not subject to referendum. It also determined that allowing the referendum to proceed would potentially interfere with Whitehall’s contractual obligations on the grant and loan contracts.
ISSUE 1
¶ 10 Is this action barred under the applicable statute of limitation?
¶11 A suit to determine the validity and constitutionality of a petition for initiative or referendum must be initiated within fourteen days of the date the petition has been approved as to form by the local government attorney. Section 7-5-135(1), MCA. In this case, the petition for referendum was approved as to form on January 30,1996, and this action was filed fourteen days later, on February 13, 1996.
¶12 Appellants point out that under § 7-5-134, MCA, the county must, as a preliminary matter, approve or reject a petition for initiative or referendum within twenty-one days after the sample petition is submitted for approval as to form. In this case, the sample petition was filed on January 8, 1996, and the notice of approval as to form was filed twenty-two days later, on January 30, 1996. Appellants assert that the maximum time allowable between submission of a referendum for approval by the county and commencement of an action to challenge it is the sum of the time frames allowed under §§ 7-5-134 and -135, MCA: thirty-five days. In this case, a total of thirty-six days elapsed between those two events.
¶ 13 The District Court ruled that this argument did not have merit. We agree. Section 7- 5-135, MCA, sets the limitation period in which a local government must file suit on the validity of a petition for referendum or initiative; § 7-5-134, MCA, does not speak to that issue. Appellants’ consolidation of the two time frames is unsupported by statute; nor have they offered any case law in support of their position. We hold that this action was timely filed within fourteen days of approval of the referendum as to form as required under § 7-5-135, MCA.
ISSUE 2
¶14 Did the District Court err when it determined that Town of Whitehall Ordinance Chapter 4.00 was administrative rather than legislative and was therefore exempt from the referendum proceedings allowed under the Montana Constitution and § 7-5-131(1), MCA?
¶15 Montana’s Constitution reserves to the people of this State the powers to challenge and enact laws through the referendum and initiative processes. In Article V, “The Legislature,” the Constitution provides that “The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum.” Art. V., Sec. 1, Mont. Const.
¶16 In its General Government Article, Montana’s Constitution defines the initiative power at Article III, Section 4. It defines the referendum power in the following section:
Referendum. (1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. A referendum shall be held either upon order by the legislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. The total number of signers must be at least five percent of the qualified electors of the state. A referendum petition shall be filed with the secretary of state no later than six months after adjournment of the legislature which passed the act.
(2) An act referred to the people is in effect until suspended by petitions signed by at least 15 percent of the qualified electors in a majority of the legislative representative districts. If so suspended the act shall become operative only after it is approved at an election, the result of which has been determined and declared as provided by law.
Art. III, Sec. 5, Mont. Const.
¶17 A third reference to the powers of initiative and referendum appears under the Local Government Article. Article XI, Section 8, Mont. Const., provides:
Initiative and referendum. The legislature shall extend the initiative and referendum powers reserved to the people by the constitution to the qualified electors of each local government unit.
As directed by Article XI, Section 8, Mont. Const., Montana’s legislature has statutorily extended initiative and referendum powers to the electors of local government units:
Right of initiative and referendum. (1) The powers of initiative and referendum are reserved to the electors of each local government. Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government, except those set out in subsection (2), may be proposed or amended and prior resolutions and ordinances may be repealed in the manner provided in 7-5-132 through 7-5-137.
(2) The powers of initiative shall not extend to the following:
(a) the annual budget;
(b) bond proceedings, except for ordinances authorizing bonds;
(c) the establishment and collection of charges pledged for the payment of principal and interest on bonds; or
(d) the levy of special assessments pledged for the payment of principal and interest on bonds.
Section 7-5-131, MCA.
¶18 This Court has long recognized a distinction between legislative and administrative or quasi-judicial acts in relation to the powers of initiative and referendum; legislative acts have been held subject to referendum, while administrative or quasi-judicial acts have not. In City of Billings v. Nore (1966), 148 Mont. 96, 104, 417 P.2d 458, 463, this Court described the distinction between legislative and administrative acts as “whether the act was one creating a new law (legislative) or executing an already existing law (administrative).”
¶19 The Appellants point out that initiative and referendum powers must be broadly construed to maintain the maximum power in the people. See Nicholson v. Cooney (1994), 265 Mont. 406, 411, 877 P.2d 486, 488. Their argument continues based upon the special concurrence to this Court’s opinion in Greens at Fort Missoula v. City of Missoula (1995), 271 Mont. 398, 897 P.2d 1078. In Greens, the issue was whether a city referendum could validly cancel rezoning of an area then newly annexed to the City of Missoula. The parties debated whether rezoning was a legislative act, like zoning, or an administrative act not subject to referendum. The Court determined that rezoning, like zoning, is a legislative act, and is therefore subject to referendum. Greens, 271 Mont. at 403, 897 P.2d at 1080-81. In a special concurrence, Justice Nelson concluded that under Montana’s Constitution, any act of a local government body — not just a legislative act — is subject to referendum. Greens, 271 Mont. at 407, 897 P.2d at 1083-84. Justice Nelson reasoned that the reference to “any act of the legislature” in Art. III, Sec. 5, Mont. Const., does not distinguish between legislative and administrative or quasi-judicial acts in describing the powers of initiative and referendum. Greens, 271 Mont. at 407, 897 P.2d at 1083.
¶20 Local governing bodies are empowered to exercise legislative, administrative, and other powers pursuant to Article XI, Section 4, Mont. Const. Based on the concurring opinion in Greens, Appellants assert that § 7-5-131, MCA, is unconstitutional insofar as it limits the referendum power against local government to “[r]esolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government....”
¶21 Courts in other jurisdictions with constitutional provisions extending the power of referendum to “acts of the legislature” have recognized “act” as a term of art, meaning a bill passed by the legislature and enacted into law. See, e.g., Whittemore v. Terral (Ark. 1919), 215 S.W. 686, 687; Weldon v. Bonner County Tax Coalition (Idaho 1993), 855 P.2d 868, 875; Klosterman v. Marsh (Neb. 1966), 143 N.W.2d 744, 749; Herbring v. Brown (Or. 1919), 180 P. 328, 330. This is consistent with authority generally addressing the meaning of an “act of the legislature.” See Black’s Law Dictionary 25 (6th ed. 1990), defining “act” in the sense of “legislative act” as “[a]n alternative name for statutory law.”
¶22 Moreover, the distinction recognized in Nore and other Montana cases between legislative acts and administrative or quasi-judicial acts vis-a-vis their subjectivity to referendum applies in virtually all other jurisdictions. The “sound rationale for limiting the referendum to legislative actions is that to permit referenda on executive and administrative actions would hamper the efficient administration of local governments.” Wennerstrom v. City of Mesa (Ariz. 1991), 821 P.2d 146, 149. See also City of Idaho Springs v. Blackwell (Colo. 1987), 731 P.2d 1250, 1253; In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma Numbered 74-1 and 74-2 (Okla. 1975), 534 P.2d 3. The Supreme Court of Nebraska has reasoned:
[T]o allow [the referendum] to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. In many cases it would entirely prevent the exercise of the executive power necessary to carry out the acts determined upon by the legislative department. In the absence of a very clear declaration to the contrary it must be presumed that the power of referendum was intended to apply solely to the legislative powers of the city.
Read v. City of Scottsbluff (Neb. 1941), 297 N.W. 669, 671 (quoting 7 McQuillin, Municipal Corporations, Supp. 6621, sec. 351c).
¶23 Montana’s 1889 Constitution reserved to the people “power to propose laws, and to enact or reject the same at the polls.” Art. V, Sec. 1,1889 Montana Constitution. No case law under the 1889 Constitution suggests that the powers of initiative and referendum in Mon tana ever extended to anything other than legislative acts. Nor does anything in the transcript of the proceedings of the 1972 Constitution suggest an intent to expand the power of initiative and referendum to anything other than legislative power. In fact, in recommending the adoption at the 1972 Montana Constitutional Convention of the referendum provision which was adopted as Article III, Section 5, Delegate Mark Etchart stated, “This provision is parallel to the present referendum provisions as contained in Article V, Section 1, of the present Constitution.” 1972 Mont. Const. Conv. Tr., March 18, 1972, Vol. VII at 2717. In short, Montana’s 1972 Constitution does not contain a “very clear declaration to the contrary,” as the Nebraska court suggested is required, to the general rule that the power of referendum is intended to apply solely to legislative powers.
¶24 Instead, as noted above, the provision by which the people retain the right of initiative and referendum appears in the Constitutional Article on “The Legislature.” No comparable provisions appear in the Articles concerning the Executive and the Judiciary. Article VI, Section 4, Mont. Const., vests the entire executive power with the governor. There is no reservation of executive power to the people by initiative and referendum. Article VII, Section 1, Mont. Const., vests the judicial power of the state in this Court, the district courts, justice courts, and other courts that the legislature may create. There is no reservation of judicial power to the people by initiative and referendum.
¶25 Under Article XI, Section 8, Mont. Const., the Montana Legislature is to extend to the qualified electors of local government units “the initiative and referendum powers reserved to the people by the constitution.” Even under the policy of broadly construing the powers of initiative and referendum, the legislature cannot extend to the people greater powers against local government than those which the people have reserved to themselves in the Constitution. The powers of initiative and referendum have been reserved under the Constitution as to legislative acts only.
¶26 For these reasons, we decline to abandon the rule set forth in Nore or to adopt the position set forth in the concurring opinion in Greens. We reaffirm that under Montana’s Constitution, the people have retained the powers of initiative and referendum as to legislative acts only. Because we so rule, the question here raised as to the constitutionality of § 7-5-131, MCA, is resolved in the statute’s favor.
¶27 Our next task is to determine whether Whitehall Town Ordinance Chapter 4.00 is legislative or administrative in nature. It is agreed that denomination of an act of local government as a resolution or as an ordinance is not dispositive as to whether the act is legislative or administrative; that determination is fact-driven. We recognize, as suggested in the briefs and at oral argument, that guidelines in addition to those set forth in Nore will assist in making such a determination.
¶28 Counsel have pointed out, and we agree, that the expansion of the Nore standard set forth in Chouteau County v. Grossman (1977), 172 Mont. 373, 563 P.2d 1125, and Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127, is not of assistance. In those cases, this Court held that local governments were performing administrative functions based upon “existing law” consisting of statutory grants of authority to local governments. In Grossman, the existing law was a statute authorizing local governments to lay out, maintain, control and manage county roads; the Court held that this statute rendered administrative a county’s decision to expend funds and accept bids to pay for paving a road. Grossman, 172 Mont. at 378, 563 P.2d at 1128. In Dieruf, the Court held that a statute authorizing city or county commissions to assess property owners for improvements to create off street parking rendered administrative the City of Bozeman’s adoption of an ordinance establishing a formula for assessing property for purposes of creating an off street parking facility and a resolution creating a special improvement district to establish that facility. Dieruf, 173 Mont. at 451, 568 P.2d at 129-30. The rule adopted in Grossman and Dieruf renders the Nore standard practically meaningless, because virtually all municipal actions are, either directly or indirectly, taken pursuant to statutory authority. Therefore, to the extent that Grossman and Dieruf stand for the rule that a local government’s act is administrative based solely upon a statutory grant of authority, we hereby overrule those cases.
¶29 The amicus brief submitted by the office of Montana’s Attorney General recommends guidelines for distinguishing between legislative and administrative acts of a local government set forth by the Supreme Court of Kansas in Wichita v. Kansas Taxpayers Network (Kan. 1994), 874 P.2d 667. The first guideline in Kansas Taxpayers is essentially the distinction set forth by this Court in Nore. The other three guidelines expand upon and add to that distinction. We hereby approve and adopt the Kansas Taxpayers guidelines for use in Montana. The guidelines are:
1. An ordinance that makes new law is legislative, while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance.
2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative.
3. Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of a policy.
4. No one act of a governing body is likely to be solely administrative or legislative, and the operation of the initiative and referendum statute is restricted to measures which are quite clearly and fully legislative and not principally executive or administrative.
Kansas Taxpayers, 874 P.2d at 671-72.
¶30 Applying these guidelines to the facts of the present case, we begin with the question of whether Whitehall Town Ordinance Chapter 4.00 makes new law or executes existing law. The Town of Whitehall argues that the ordinance executes existing laws, those being the town council’s prior resolutions to seek grants and a loan to make improvements to the Whitehall water system. In the town’s view, those resolutions were its legislative acts. We note that even a cursory examination of the applications for grants establishes that water meters were part of Whitehall’s water system improvement plan.
¶31 However, Appellants claim that a view that the first-in-time" act by the town council is the only “legislative” act allows for artificial manipulation by the local government and yields no meaningful distinction between legislative and administrative acts at all. Appellants argue that Whitehall’s voters never had the opportunity to exercise their legislative review authority with regard to the proposed improvements, because the details of the improvements were not previously acted upon by the town council in any manner by which effective review was possible. They point out that Ordinance Chapter 4.00 is the first act of the Whitehall Town Council which specifically adds the new requirement that water meters be installed for the users of Whitehall’s water system.
¶32 In this case, we conclude that application of this first guideline does not conclusively establish whether Ordinance Chapter 4.00 is legislative or administrative. We therefore proceed to consider the other three guidelines.
¶33 The second Kansas Taxpayers guideline asks whether the ordinance deals with a small segment of an overall policy question. In this case, the overall question was how to improve the town’s water system to provide water to consumers. The record includes copies of Whitehall’s 1994 applications for a Community Development Block Grant and for a grant from the Treasure State Endowment Program, which explain the nature of the problem which the town was facing. Portions of the existing water system dated back to 1915. The town had had problems for a decade with low water pressure and inadequate fire flows. In 1991, the town had retained a consulting firm to perform an analysis of the water system to determine deficiencies and make recommendations for improvements. Replacing worn out and obsolete pipes and installing a new 500,000 gallon water reservoir were two aspects of the proposed improvements to Whitehall’s water system to increase water capacity and pressure. Installation of water meters to encourage water conservation was another.
¶34 As mentioned above, in 1992 the PSC had directed Whitehall to explore options for reducing its consumption of water, including the use of water meters. Whitehall’s water system used more than three times as much water as did the system of a comparable Montana town where water was metered. The use of water meters had been proposed and specifically identified as a goal in the project summaries in both the Treasure State Endowment Program Grant application and the Community Development Block Grant application. We conclude that the decision to install water meters was a small segment of an overall policy question.
¶35 As to the third guideline, the most effective means of operating and managing a city-wide water system reasonably fits within the context of decisions that require specialized knowledge and experience with respect to city management. In Kansas Taxpayers, which involved an ordinance concerning billing for a municipality’s storm water utility system, the court stated:
The physical structure of the system, maintenance, and fee assessment and collection all fit within the purview of the City’s expertise. The City already owns and maintains the existing system; [the challenged ordinance] also fits within a city’s expertise in terms of fiscal management.
Kansas Taxpayers, 874 P.2d at 672. The same may be said here. The best method of billing for the use of water services is clearly a part of a larger decision-making function requiring specialized knowledge and experience with respect to city management.
¶36 While the record does not indicate that prior to the enactment of Whitehall Town Ordinance Chapter 4.00, the 'Whitehall Town Council had voted upon the singular issue of installing water meters, the record does establish that the proposal to install water meters had been endorsed as part of several acts of the town council, specifically the resolutions to submit the two grant applications. The town has submitted into the record copies of numerous notices of town meetings in which water meters were listed as a topic of discussion.
¶37 Among those, an April 11, 1994 public hearing included a “Review of [the] Community Development Block Grant Program,” a “Review [of] General Needs,” and solicitation of comments from the public. That public hearing preceded the town council’s April 14,1994 meeting which included agenda items on finalizing the financial plans for the water project and grant applications plans, and its May 23,1994 resolution approving the submission of the application for a Community Development Block Grant. The Community Development Block Grant application included a statement in the initial project description that “water meters will be installed on individual residential and commercial services to encourage conservation of water,” and, in the body of the application, several paragraphs on the water meter plan.
¶38 Similarly, a public meeting announced in two area newspapers, the Whitehall Ledger and the Montana Standard, was held on March 23,1995, “to provide the community with updated information on the proposed water improvements and the results of the grant applications.” Thereafter, the notice of the July 10,1995 town council meeting included as an agenda item the “TSEP contract,” which grant contract was then approved by resolution of the town council and subsequently entered into by the mayor on the town’s behalf on September 4, 1995. The project summary included in the TSEP (Treasure State Endowment Program) grant application stated that “water meters will be installed on individual residential and commercial services to encourage conservation of water.”
¶39 The parties have stipulated that various citizens of Whitehall had previously voiced objections, either informally, or not properly formalized, concerning the installation of water meters. The existence of the previous public hearings and town council resolutions and the previous objections to the installation of water meters confirms that this issue was not addressed for the first time with the adoption of Whitehall Town Ordinance Chapter 4.00. We are thus led to the conclusion that Whitehall Town Ordinance Chapter 4.00 was not “quite clearly and fully legislative” under the fourth Kansas Taxpayers guideline but was, to at least some extent, an administrative act to carry out previous plans to which the council had agreed.
¶40 Using the guidelines set forth in Kansas Taxpayers and now adopted by this Court, we conclude that the enactment of Whitehall Town Ordinance Chapter 4.00 was an administrative act and was accordingly not subject to referendum. Having so determined, we hold that the District Court did not err in declaring the referendum invalid. We therefore need not address the issue raised on appeal concerning whether the referendum was unconstitutional because it would substantially interfere with contracts.
¶41 We do not address the statutory debt limitation issue raised at the end of Appellants’ opening brief because the issue was not raised before the District Court. See Kapner, Wolfberg & Assoc. v. Blue Cross (1995), 270 Mont. 283, 286, 891 P.2d 530, 532.
¶42 We affirm the decision of the District Court.
JUSTICES REGNIER, LEAPHART, HUNT, TRIEWEILER and GRAY concur.
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Aloysius Big Hair appeals his conviction of driving while under the influence of alcohol (DUI), fourth offense, in the Thirteenth Judicial District Court, Big Horn County. We affirm.
¶2 The issues are whether the District Court erred in denying Big Hair’s motions to continue trial due to the unavailability of a witness and to quash reference to his previous DUI convictions on grounds that he had not been properly advised of his right to counsel in relation to those convictions.
¶3 On April 5, 1996, Big Hair was arrested in Hardin, Montana, on a DUI charge. He was charged under § 61-8-401, MCA(1985), with DUI, fourth offense, based on his previous DUI convictions in 1987, 1988, and 1989.
¶4 At the jury trial on the April 1996 charge, Big Hair and his wife testified that their pickup had disappeared from their home south of Crow Agency, Montana, during a party some time the night before his arrest. They both testified that they had caught a ride to Hardin on the morning of April 5 to look for the track. Mrs. Big Hair testified that she waited for her husband with friends in a bar while he searched for the truck. Big Hair testified that he walked around Hardin looking for the truck, periodically returning to the bar where his wife waited for him, and finally found the truck parked in the downtown area. Just as he found the truck and reached in through the window to retrieve the keys, a highway patrol officer approached him and arrested him for DUI.
¶5 The highway patrol officer testified that he had received a radio transmission concerning a possible DUI driver in a pickup truck at about 6:00 p.m. on April 5,1996. The report included a description of the truck and its license plate number, and information that it had three occupants. The officer did not find the truck at the reported location.
¶6 A few minutes later, the officer received a second radio transmission concerning the location of the pickup. He made a U-turn and found the truck parked with three occupants in a spot where it had not been minutes before. Big Hair was seated behind the steering wheel. The officer testified that as he approached the truck, Big Hair got out and began walking across the street. The officer stated that Big Hair admitted that he had been driving and that he had had “a couple beers.” After administering field sobriety tests, the officer arrested Big Hair and took him to the local police station, where his blood alcohol concentration was measured at .337.
¶7 The jury convicted Big Hair of DUI. The District Court denied Big Hair’s post-trial motions to quash reference to his prior DUI’s and for new trial based on denial of his pretrial motion for a continuance.
Issue 1
¶8 Did the District Court err in denying Big Hair’s motion to continue trial due to the unavailability of a witness?
¶9 Section 46-13-202, MCA, gives a district court discretion in considering a motion to continue trial. At subsection (3), the statute provides that it is to be construed “to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.” When reviewing the denial of a motion for continuance, this Court determines whether the district court abused its discretion. State v. Haskins (1992), 255 Mont. 202, 207, 841 P.2d 542, 545.
¶10 Big Hair moved for a continuance on the day before trial. His motion stated that an eyewitness to the alleged offense, an alleged passenger in his truck who had previously stated his willingness to come to court, could not be located. The defense alleged that this witness would testify to Big Hair’s level of intoxication and, the defense believed, that Big Hair was not driving the pickup. The defense contended that “because of the relatively short trial setting in this matter, [the witness] was not able to be informed thereof.”
¶11 In oral argument on this motion just before voir dire of the jury, the State responded that the evidence would speak for itself — the State would offer the results of the breath test as to Big Hair’s level of intoxication, and the testimony of the arresting officer as to whether Big Hair was driving the truck. The State objected to a continuance on grounds that the arresting officer had accepted a job in Oregon and would be leaving Montana, resulting in the potential expense of having him come back to Montana to testify if the continuance were granted.
¶12 Big Hair’s trial was set six months in advance, in April 1996, for October 7, 1996. On October 11, 1996, trial was rescheduled for October 17, 1996, apparently due to the court’s crowded docket on October 7.
¶13 There is no record or claim that Big Hair objected to the rescheduled trial date when it was set. Nor did he present any basis for his stated belief that his witness could be located within a reasonable time if a continuance was granted. He provided only rather vague oral representations by his counsel regarding the nature of the proposed witness’s testimony.
¶14 The District Court denied Big Hair’s October 16 motion for a continuance on grounds that it was belatedly filed. After reviewing the record, we hold that the District Court did not abuse its discretion in denying the motion for a continuance.
Issue 2
¶15 Did the court err in denying Big Hair’s motion to quash reference to his previous DUI convictions on grounds that he had not been properly advised of his right to counsel in relation to those convictions?
¶16 In Montana, a rebuttable presumption of regularity attaches to a prior DUI conviction during a collateral attack such as the one Big Hair raises here. This presumption must be overcome by direct evidence of irregularity by the defendant; the burden then shifts to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant’s rights. State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d 431, 436.
¶ 17 At the hearing on the motion to quash, the District Court heard testimony from Big Hair and from Judge Snively, the justice of the peace who presided at Big Hair’s 1987, 1988, and 1989 DUI convictions. In its written order denying the motion to quash, the District Court reasoned as follows:
[T]he records of the lower court for each of the Defendant’s three convictions and the testimony of Judge Snively established that the Defendant’s right to counsel was explained to him and that he knowingly and intelligently waived his right prior to the entry of his plea of guilty. The Defendant did not controvert this evidence, he merely testified that he did not recall whether his rights had been explained and whether he understood them and waived them. The Court concludes, under the facts of this case, that the lower court record was not silent and that the State of Montana sustained its burden of proving that the Defendant’s Sixth Amendment right had been afforded to him during each of his prior convictions.
Big Hair argues that there was insufficient evidence that he was properly advised of and waived his constitutional right to counsel in his 1987, 1988, and 1989 DUI convictions.
¶18 Big Hair did not present any direct evidence in support of his claim that his constitutional right to counsel was violated in the prior proceedings. He testified only that he could not recall whether he had been advised of his right to counsel and whether he had waived that right. We conclude that, like the defendants in State v. Perry (1997), 283 Mont. 34, 938 P.2d 1325, and State v. Stubblefield (1997), 283 Mont. 292, 940 P.2d 444, Big Hair has failed to rebut the presumption of regularity with any direct evidence that his constitutional right to counsel was violated. Therefore, we hold that the District Court did not err in denying his motion to quash.
¶19 Affirmed.
JUSTICES NELSON, GRAY and REGNIER concur.
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal by petitioner Angela Heath (Heath) from a September 25,1997 order of the Workers’ Compensation Court granting summary judgment in favor of Montana Municipal Insurance Authority and the City of Lewistown Police Department (collectively referred to as the City). We affirm.
BACKGROUND
¶2 Heath began working as a dispatcher for the City of Lewistown Police Department on April 2,1996. The police department is located in the Lewistown City Building. This building fronts on Watson Street, a public street maintained by the City of Lewistown. Adjacent to and abutting the street is a public sidewalk, which for ease of reference will be referred to as the “Watson Street sidewalk.”
¶3 On the side facing Watson Street, the Lewistown City Building has three separate entrances, one for the fire department, one for the police department, and the third for other city offices. Separate sidewalks link each of the three entrances to the Watson Street sidewalk. In addition to the front entrances, the police department has an additional entrance at the rear of the building. The police department’s rear entrance is locked, but police department employees are provided keys to that entrance. Heath had not yet received a key when she was injured.
¶4 Parking lots are located behind the Lewistown City Building and adjacent to and on the right side of the building when viewed from Watson Street. A “throughway” or alley separates the adjacent lot from the building. There is also a third parking lot across Watson Street from the building. The rear parking lot has several parking spaces reserved for police department employees. Otherwise, all spaces in the parking lots and on the street, with the exception of a fire lane directly across from the Lewistown City Building, are unreserved and open for parking not only by city employees but by the general public as well. The parking lot adjacent to the building serves both the Lewistown City Building and a nearby community center.
¶5 Heath was not required to drive to work and was not paid to do so. She was told that she could park in any of the parking lots on or near the street, except on Watson Street immediately in front of the building.
¶6 On her second day of work, April 3, 1996, Heath left her home for work at approximately 7:30 a.m. She drove to work in her car, arriving at the Lewistown City Building approximately five minutes later. She parked in the lot adjacent to the building and after exiting her car walked across the throughway and then down the Watson Street sidewalk. As she approached the sidewalk leading to the police department, she slipped and fell, injuring herself. At the time of her fall she was still on the Watson Street sidewalk and had not entered the sidewalk leading to the police department. Moreover, at the time she fell, Heath’s shift had not begun, she was not being paid, nor was she performing work-related duties.
¶7 On the date of her injury, the City of Lewistown was insured by Montana Municipal Insurance Authority. Heath submitted a claim for workers’ compensation benefits to the City’s insurer. The insurer denied the claim on the ground that Heath’s injuries did not occur in the course and scope of her employment. Thereafter, Heath petitioned the Workers’ Compensation Court to enter an order requiring the insurer to accept liability for her injuries, to pay her medical expenses, and to determine and order payment for any disability arising from her injuries. Following discovery, the matter was submitted to the Workers’ Compensation Court on cross motions for summary judgment. The motions were orally argued, and following Heath’s deposition, the court deemed the motions submitted. On September 25, 1997, the court entered its order granting summary judgment to the City and dismissing Heath’s petition with prejudice. This appeal followed.
ISSUE
¶8 The sole issue presented by Heath on appeal is whether her injury of April 3, 1996, arose within the course and scope of her employment.
STANDARD OF REVIEW
¶9 This Court’s standard of review of a grant or denial of summary judgment by the Workers’ Compensation Court is the same as that used by the trial court in ruling upon the motion for summary judgment. Heisler v. Hines Motor Co. (1997), 282 Mont. 270, 274, 937 P.2d 45, 47 (citations omitted). We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Our review of the court’s conclusions of law is plenary; we simply determine whether its legal conclusions are correct. Loss v. Lumbermens Mut. Cas. Co. (1997), 282 Mont. 80-81, 936 P.2d 313, 314 (citations omitted).
¶10 In the case at bar, neither party contends that genuine issues of material fact are in dispute. Accordingly, we determine only whether the trial court correctly ruled in favor of the party entitled to judgment as a matter of law. We hold that the trial court did.
DISCUSSION
¶ 11 Historically, the general rule in Montana is that employees are not covered under the Workers’ Compensation Act while going to and from work. This rule was established in Murray Hospital v. Angrove (1932), 92 Mont. 101, 109, 10 P.2d 577, 580, and has been reaffirmed in numerous cases during the intervening years. See, e.g., Griffin v. Industrial Acc. Fund (1940), 111 Mont. 110, 115, 106 P.2d 346, 348; Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 251, 570 P.2d 893, 894; Gorden v. H.C. Smith Const. Co. (1980), 188 Mont. 166, 170, 612 P.2d 668, 670; Courser v. Darby School Dist. No. 1 (1984), 214 Mont. 13, 16, 692 P.2d 417, 418; Correa v. Rexroat Tile (1985), 217 Mont. 126, 128, 703 P.2d 160, 162; Ogren v. Bitterroot Motors, Inc. ( 1986), 222 Mont. 515, 520, 723 P.2d 944, 947; Hetland v. Magnum Petroleum (1987), 225 Mont. 389, 391, 733 P.2d 343, 345; Buhl v. Warm Springs State Hosp. (1989), 236 Mont. 363, 364, 769 P.2d 1258, 1259. The exceptions to this general rule of no coverage typically involve cases in which the employee is paid for his or her travel and/or the travel benefits the employer. Hetland, 225 Mont. at 391, 733 P.2d at 345; Courser, 214 Mont. at 16, 692 P.2d at 418-19.
¶12 In 1987, the Legislature enacted a statute specifically addressing travel. This statute, § 39-71-407, MCA (1995), was in effect at the time of Heath’s injury and provides in pertinent part:
(1) Each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section, to an employee of an employer that it insures who receives an injury arising out of and in the course of employment or, in the case of death from the injury, to the employee’s beneficiaries, if any.
(3) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:
(a) (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee’s benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b) the travel is required by the employer as part of the employee’s job duties.
¶13 In State Comp. Mut. Ins. Fund v. James (1993), 257 Mont. 348, 849 P.2d 187, we noted that this statute encompassed the historical “going and coming” rule as well as the exceptions which had evolved to it over the years. James, 257 Mont. at 350, 849 P.2d at 188-89. Accord Dale v. Trade Street, Inc. (1993), 258 Mont. 349, 357, 854 P.2d 828, 832- 33; Carrillo v. Liberty Northwest Ins. (1996), 278 Mont. 1, 8, 922 P.2d 1189, 1194.
¶14 In James, we stated:
Under subparagraph (b), [of § 39-71-407(3)] the employee is not covered unless the travel is required as “part of’ the employee’s job duties. Prior to the enactment of the above statute, we held in Massey v. Selensky (1987), 225 Mont. 101, 731 P.2d 906, that the general rule was that travel to and from an employee’s place of work was outside the course and scope of his employment. We here construe the phrase “as part of’ from paragraph(b) of § 39-71-407(3), MCA, as equivalent to the phrase “in the course and scope of’ employment from the previous common law.
James, 257 Mont. at 352, 849 P.2d at 190.
¶15 Here, applying the facts of this case to the elements of the statute as interpreted in James and our prior case law, it is clear that Heath cannot satisfy the statutory exception in order to claim compensation for injury while traveling.
¶16 Heath was traveling to work at the time of her slip and fall. It is undisputed that the City did not furnish Heath transportation nor did it reimburse her for any costs of travel, gas, or oil as part of her benefits or employment agreement. Heath’s travel was not necessitated by or on behalf of her employer as an integral part or condition of her employment and, of particular importance here, Heath’s travel was not required by her employer as part of her job duties. She was simply on her way to work. In this regard, the Workers’ Compensation Court correctly noted that going to and from work does not in itself provide a special benefit to the employer. “If merely securing the employee’s presence at work is in every case a ‘special benefit,’ the exception swallows up the rule.” Buhl, 236 Mont. at 365, 769 P.2d at 1259. Clearly, on the facts here and given the requirements of the statute and our prior case law, Heath was not in the course and scope of her employment when she was injured traveling to work.
¶17 Notwithstanding, Heath argues that our decision in Nicholson v. Roundup Coal Mining Co. (1927), 79 Mont. 358, 257 P. 270, mandates a different result. In that case we stated:
The employer has control of the ways of ingress and egress within its property and leading to and from the place of work, and it is universally held that, where an industrial accident occurs while an employee is going to or from work while on the premises of the employer and while passing over ways of egress and ingress furnished by the employer, without deviation for purposes of his own, an injury suffered by reason of the accident arose out of and in the course of his employment, as he was under the protection of, and using the things furnished him by, his employer.
Nicholson, 79 Mont. at 379-80, 257 P. at 276.
¶ 18 In further support of her position that her case falls outside the statute because her accident did not occur away from the employer’s premises, Heath cites to several pages ofVolume 4 of Larson’s Workers’ Compensation Law. The cited sections state that benefits are properly awarded to the injured employee under circumstances where the employee travels along or across a public road between two portions of the employer’s premises either going, coming or pursuing his active duties. This view would include travel on a parking lot owned or maintained by the employer and an off-premises route of travel which lies on the normal route which employees must traverse to reach their employment. Heath contends that where the employee is injured on the employer’s premises or within the “zone of employment,” compensation should be awarded for injuries sustained. Heath maintains that because the City maintained the sidewalk on which she fell she was, thus, on her employer’s premises and that the going and coming rule does not apply.
¶19 We rejected a similar contention in Griffin v. Industrial Acc. Fund (1940), 111 Mont. 110, 106 P.2d 346, wherein we stated:
The rule has been settled in this state that a workman is not entitled to compensation for injuries received while traveling to and from his place of work by an instrumentality not under the control of the employer, and when he is subjected only to the ordinary street hazards common to all pedestrians. [Citing Murray Hospital v. Angrove, supra.] Here it is true that the instrumentality causing the injury — the sidewalk — was an instrumentality under the control of the employer — the city; in other words, the injury occurred on premises under the control of the employer. But unless the instrumentality causing the injury, or the premises on which the injury occurred were used in connection with the actual place of work where the employer carried on the business in which the employee was engaged, there can be no recovery.
Griffin, 111 Mont. at 115, 106 P.2d at 348 (emphasis added) (citations omitted).
¶20 Here, Heath was not required to drive to work, was not assigned a parking space or provided with any special parking area, and was traversing a public sidewalk when injured. She had not reached the sidewalk leading into her workplace and was, therefore, not on a sidewalk used only by employees or persons conducting City business. See McMillen v. Arthur G. McKee and Company (1975), 166 Mont. 400, 404, 533 P.2d 1095, 1097 (“the sidewalk was not used by the employer in carrying on his business in which the employee was employed and consequently the employee was injured only by an ordinary street hazard common to all pedestrians”).
¶21 While Heath attempts to distinguish Griffin on the basis that her place of injury “did not occur at a location distant from the place of employment” our decision in Voorhies v. Park Cafe, Inc. (1978), 175 Mont. 232, 573 P.2d 202, made clear that the legal principle applicable to sidewalks and other public ways does not fade or disappear as the worker gets closer to her place of employment. We stated:
There is no legal support in the record to suggest that Montana has recognized the so-called “special hazard” doctrine. The fact there was ice in the alley [behind claimant’s place of employment and where she parked her vehicle] would not present a special hazard for cafe employees. Any person traversing the alley would be subject to the same condition.
Voorhies, 175 Mont. at 234, 573 P.2d at 203.
¶22 Furthermore, the facts in the case at bar are distinguishable from Nicholson. In that case a coal miner died of shock when he was exposed to extreme temperature fluctuations as he exited the mine through a tunnel into which outside air was being forced. We agreed that the miner’s death occurred in the course of his employment and that he was “placed in a position wherein he was ... specially and peculiarly subject to a risk and danger not shared by members of the community generally. ...’’ Nicholson, 79 Mont. at 379, 257 P. at 275. There, the tunnel was part of the employer’s premises and was used by miners to enter and leave the mine and was not open to the general public. That is obviously not the fact situation in this case. Heath was injured when she slipped and fell on a public sidewalk adjacent to her employer’s premises and she was not specially and peculiarly subject to any risk and danger not shared by members of the community generally.
¶23 Moreover, we made clear in Strickland v. State Comp. Mut. Ins. Fund (1995), 273 Mont. 254, 901 P.2d 1391, that whether injuries sustained while traveling to and from work are compensable is governed solely by § 39-71-407, MCA, and that subsection (3) of this statute “provides the only circumstances under which an employee’s travel-related injuries are compensable.” Strickland, 273 Mont. at 258-59, 901 P.2d at 1394.
¶24 Finally, Heath attempts to avoid the statutory requirements on the basis that at the time of her slip and fall she was no longer traveling to work but, in fact, had arrived. Heath’s argument, however, is not supported by the record. In her deposition Heath admitted that at the time of her fall she was still on her way to work.
Q. At the time of — what is your best estimate of what the time was when you fell?
A. I would say once again probably between 25 and 20 till the hour of 8:00.
Q. And you were not being paid at that time, is that right?
A. That is correct.
Q. Your shift hadn’t started at that time?
A. Correct.
Q. And you weren’t performing any work related duties at that time?
A. Correct.
Q. Just on your way to work?
A. Correct.
Q. On a sidewalk that the general public traverses also, is that right?
A. That’s correct.
Q. Coming from a parking lot where the general public parks?
A. They can, correct.
¶25 In summary, we conclude that on the undisputed facts in this case, Heath is not entitled to workers’ compensation benefits for the injury which she sustained traveling to her place of employment. She has failed to satisfy the requirements of § 39-71-407(3), MCA, and accordingly, her petition was properly dismissed with prejudice by way of summary judgment.
¶26 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and TRIEWEILER concur.
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] |
JUSTICE REGNIER
delivered the opinion of the Court.
¶1 Forrest Sanders appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to hold the State of Montana in contempt of court for its failure to reinstate his driver’s license. For the reasons stated below, we affirm.
¶2 The sole issue on appeal is whether the District Court erred in denying Sanders’ motion to hold the State of Montana’s Department of Justice in contempt for its refusal to reinstate Sanders’ driver’s license after a six-month suspension and its decision to instead revoke his license for a period of one year.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On November 6,1995, Sanders filed an action in District Court, seeking the reinstatement of his driver’s license which had been suspended by the Montana Department of Justice following his arrest for driving under the influence of alcohol and refusal to submit to a breath test. Sanders asked the District Court to review the suspension, arguing the officer who stopped him lacked probable cause to pull him over. On May 8, 1996, the District Court issued its findings of fact and conclusion of law, upholding the suspension of Sanders’ driving privileges for a ninety-day period. On May 10,1996, the State filed a motion to amend the court’s order, conceding it had erroneously stated to the court that Sanders’ license had been suspended for a period of ninety days, when in fact the State had suspended his driving privileges for a period of six months. On May 15, 1996, the District Court amended its findings of fact and conclusions of law to uphold the suspension of Sanders’ license for a period of six months.
¶4 Sanders appealed, and we affirmed the District Court’s decision in a nonciteable opinion dated January 14,1997. In so doing, we first concluded the District Court did not err in finding the officer had reasonable grounds to believe Sanders was driving under the influence of alcohol. We also concluded the court had properly amended its findings of fact and conclusions of law to correct an error in the procedural history of the case and affirm the suspension of Sanders’ license for a period of six months.
¶5 On July 8,1997, Sanders’ counsel wrote a letter to the Attorney General’s office, seeking reinstatement of Sanders’ driver’s license. Sanders’ counsel argued that “both the District Court and the Supreme Court ruled that this was a six (6) months suspension,” but recognized “[t]he Driver Improvement Bureau has put this down as a second refusal and a one year revocation.” The Department of Justice refused to reinstate Sanders’ license on the grounds that a one-year revocation was statutorily required under the circumstances of this case.
¶6 On July 24,1997, in light of the Department of Justice’s refusal to reinstate his license, Sanders filed a motion for contempt. Sanders argued that both this Court and the District Court had upheld the suspension of his license for a period of six months, and that respondents were in contempt of court for refusing to reinstate Sanders’ license after the expiration of the six-month period.
¶7 In a September 18, 1997, order and memorandum, the District Court denied Sanders’ motion for contempt, reasoning that the six-month suspension period had not become the law of the case, and concluding that a one-year revocation period was indeed statutorily mandated. On September 22,1997, Sanders filed his notice of appeal from the District Court’s order denying his motion for contempt.
¶8 Moreover, Sanders filed a petition for writ of supervisory control on October 1, 1997, and an amended petition on October 31, 1997. Sanders represented that the District Court had refused to stay its order denying Sanders’ motion for contempt, pending appeal. Sanders argued that, unless this Court issued a writ of supervisory control, the one-year revocation period he complained of would expire before his appeal could be heard, thereby rendering his appeal moot. Thus, on November 18, 1997, we granted Sanders’ petition for supervisory control, and ordered any further suspension of Sanders’ driver’s license stayed pending the present decision.
STANDARD OF REVIEW
¶9 We review contempt proceedings only to determine whether the District Court acted within its jurisdiction and whether the evidence supports the court’s order. Gillespie v. Sherlock (1996), 279 Mont. 21, 24, 929 P.2d 199, 200 (citing State ex rel., Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342, 345).
DISCUSSION
¶10 Did the District Court err in denying Sanders’ motion to hold the Department of Justice in contempt for its refusal to reinstate Sanders’ driver’s license after a six-month suspension?
¶11 On appeal, Sanders argues this Court should not permit the State to disobey what Sanders characterizes'as a direct ruling by the District Court, affirmed on appeal, that his driver’s license be suspended for a period of six months. Sanders argues the six-month suspension became the law of the case, and asserts the District Court was thus without authority to approve the State’s decision to revoke Sanders’ license for a period of one year. Sanders also argues the District Court was collaterally estopped from doing anything other than granting his motion for contempt in light of the State’s refusal to reinstate his license after six months.
¶ 12 The law of the case doctrine relied upon by Sanders stands for the proposition that “the final judgment of the highest court is the final determination of the parties’ rights.” Scott v. Scott (1997), 283 Mont. 169, 175, 939 P.2d 998, 1002 (quoting Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). We have explained that when “the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.” Scott, 283 Mont. at 175-76, 939 P.2d at 1002 (quoting Fiscus, 180 Mont. at 437, 591 P.2d at 197).
¶13 As noted above, on May 8, 1996, the District Court issued an order upholding the suspension of Sanders’ driving privileges for a period of ninety days. Two days later, however, the State filed a motion to amend the court’s order on the grounds that Sanders’ driver’s license had in fact been suspended for a period of six months, rather than ninety days. Thus, on May 15, 1996, the court amended its findings of fact and conclusions of law to reflect that Sanders’ “driving privileges were suspended October 30, 1995, for six (6) months by the State of Montana, Department of Justice, Motor Vehicle Division.” Although the court noted the Department of Justice had suspended Sanders’ license for six months, that observation was but incidental to the court’s ultimate conclusion that the officer who stopped Sanders had reasonable grounds to believe he was operating his vehicle while under the influence of alcohol.
¶ 14 We affirmed the District Court’s decision on appeal, concluding in pertinent part that the court had properly amended its findings of fact and conclusions of law to correct an error in the procedural history of the case and uphold the State’s suspension of Sanders’ license for a period of six months, rather than ninety days.
¶15 Relying on the foregoing decisions, Sanders argues this Court, as well as the District Court, has directly ordered that Sanders’ license be suspended for a period of six months. Sanders argues our pronouncement became the law of the case, and asserts the District Court failed to adhere to our decision when it denied Sanders’ motion to hold the State in contempt for its refusal to reinstate his driver’s license after a six-month suspension.
¶16 As noted, the law of the case doctrine applies only to those principles or rules of law enunciated by this Court which are “necessary to the decision” before it. Haines Pipeline Construction, Inc. v. Montana Power Co. (1994), 265 Mont. 282, 289, 876 P.2d 632, 637 (citing Zavarelli v. Might (1989), 239 Mont. 120, 124, 779 P.2d 489, 492); Phalen v. Rilley (1970), 156 Mont. 91, 93, 475 P.2d 998, 999. Moreover, we have recognized that “[t]he doctrine does not extend so far as to include matter which was consequential, incidental, or not decided by the court.” Phalen, 156 Mont. at 93, 475 P.2d at 999 (quoting O’Brien v. Great Northern Ry. Co. (1966), 148 Mont. 429, 439-40, 421 P.2d 710, 715).
¶17 Review of the record indicates that the only substantive question addressed by the District Court in its amended findings of fact and conclusions of law was whether the officer who stopped Sanders had reasonable grounds to believe he was operating his vehicle while under the influence of alcohol. Moreover, although we held the District Court had not erred in amending its decision to uphold the suspension of Sanders’ license for six months, the issue on appeal was whether the court erred in concluding the officer had reasonable grounds to believe Sanders was driving while under the influence of alcohol.
¶18 In fact, clearly not at issue before the District Court, or on appeal, was the applicable license suspension or revocation period pursuant to § 61-8-402, MCA. Thus, neither this Court nor the District Court has had occasion to determine whether § 61-8-402, MCA, mandated that the Department of Justice suspend Sanders’ license for a period of ninety days, six months, or one year. As mention of the six-month suspension term was not necessary to our conclusion that the officer had reasonable grounds to stop Sanders, it did not become the law of the case.
¶19 Instead, as we recognized in our January 14, 1997, decision, “[t]he Montana Department of Justice is responsible for determining the applicable driver’s license suspension period in accordance with § 61-8-402, MCA.” Section 61-8-402(6), MCA, provides as follows:
The following suspension and revocation periods are applicable upon refusal to submit to one or more tests:
(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.
¶20 The record indicates that the suspension of Sanders’ license on October 30, 1995, resulted from his second testing refusal within a five-year period. Accordingly, as determined by the Department of Justice and as reflected by Sanders’ certified driving record, § 61-8-402(6), MCA, mandated that Sanders’ driving privileges be revoked for a period of one year. Moreover, the record indicates that Sanders had notice that his refusal to take a breath test for the second time within a five-year period would result in the revocation of his driving privileges for a period of one year. On January 19, 1996, the parties stipulated that Officer Longin had read an Implied Consent Advisory form to Sanders on the night of his arrest. The form explained the following: “If you have refused similar testing within the past five years and you refuse again today, your driver’s license will be seized and revoked for one year.”
¶21 The record thus indicates Sanders had notice that, in light of his prior driving record, the Department of Justice would revoke his license for a period of one year.
¶22 That the District Court and this Court previously referenced a six-month suspension does not mean the court was then bound, pursuant to the law of the case doctrine, to adhere to a six-month suspension period. Rather, we conclude that the law of the case doctrine is inapplicable under the circumstances, and that the District Court did not err in denying Sanders’ motion to hold the State in contempt for its refusal to reinstate his driving privileges following a six-month suspension.
¶23 Sanders also argues the District Court was collaterally estopped from doing anything but granting his motion for contempt. As with the law of the case doctrine, however, the collateral estoppel bar only prevents relitigation of those issues actually decided in a prior adjudication. Haines Pipeline, 265 Mont. at 288, 876 P.2d at 636. As neither the District Court nor this Court had previously addressed the question of whether a six-month suspension was in fact appropriate under the circumstances of this case, we conclude the District Court was not collaterally estopped from denying Sanders’motion for contempt.
¶24 We have held that a party may not be held in contempt of court for violating an order, unless the terms of the order are definite, certain, and specific. Goodover v. Lindey’s, Inc. (1993), 257 Mont. 38, 42, 847 P.2d 699, 701. Furthermore, we have recognized that “[i]f there is no command, there is no disobedience.” Goodover, 257 Mont. at 42, 847 P.2d at 701. Here, although both the District Court and this Court made mention of a six-month suspension period, neither court evaluated the statutory propriety of that term or specifically ordered its imposition. Based on the foregoing, we affirm the District Court’s decision denying Sanders’ motion for contempt.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Victor A. Johansen (Johansen) and the Department of Natural Resources and Conservation (Department) have filed cross-appeals from an order of the First Judicial District Court, Lewis and Clark County. Johansen had filed a petition for judicial review in the District Court of the Department’s decision to cancel his lease of agricultural land for failing to make timely lease payments. The District Court granted summary judgment in favor of the Department and dismissed Johansen’s petition for lack of jurisdiction. We reverse and remand.
¶2 The sole issue we address on appeal is whether the District Court erred in holding that it did not have jurisdiction to review Johansen’s petition for judicial review of the Department’s decision to cancel his agricultural lease pursuant to § 77-6-506, MCA, for failing to make timely lease payments.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 For decades, Johansen’s family leased agricultural land from the State of Montana. Johansen continued leasing the same land that had originally been leased by his grandfather. The date when Johansen’s rental payments were due are set by statute. Section 77-6-506(2), MCA. Pursuant to that statute, his latest lease payment was initially due on November 15, 1995. If he failed to make a payment by that date, then the full rental and a $25.00 penalty were due on December 31, 1995. The statute also provides the Department with the discretion to extend the deadline past that date. Specifically, that statute provides:
For agricultural leases and the agricultural portion of leases containing both grazing and agricultural land, when the rental is paid on a crop share basis or on a crop share/cash basis, the rental is due in cash on or before November 15 of the year in which the crop is harvested. If the rental is not paid on or before November 15 of the year of crop harvest, a $25 penalty shall be imposed on the lessee. If the full rental and the $25 penalty are not paid on or before December 31 of the year in which the crop is harvested, the entire lease is canceled. The department may extend the deadline in writing. If the lessee does not make the rental payment by the date of extension, the entire lease is canceled. Any rental payment made after November 15 of the year in which the crop is harvested, including payment made after an extension of the deadline, must include the $25 penalty.
Section 77-6-506, MCA.
¶4 Because Johansen had not paid the rent by November 15, the full rental plus a $25 penalty was due on December 31. Johansen attempted to make this payment from his rural postal box. Postal service for his route is provided by a contract carrier. Contractors, including the contractor on Johansen’s route, routinely accept letters for mailing that are placed in the postal box without the stamps affixed when the customer has provided the correct amount of money for postage. In such a case, the contractor accepts the mail, takes it to the post office, and affixes the postage.
¶5 Johansen testified that he and his father before him have mailed the lease payments in this fashion from his rural postal box for the past 38 years. On Friday, December 29, 1995, Johansen again attempted to mail his lease payment in this fashion. He placed the envelope containing his payment in his rural postal box with 32 cents. The postal carrier did not take the letter, however, because snow had blown into the mailbox. The postal carrier left Johansen a note stating that because the box was filled with snow, she was unable to find all the money to pay the required postage. She requested that Johansen remove the snow.
¶6 On Saturday, December 30, 1995, when Johansen went to the mailbox, he discovered the postal carrier’s message. He removed the snow and again left the rental payment in the mail box with money to pay the required postage. That day the postal carrier found the mail and the money in the mailbox, which had been cleaned. Once again, she declined to accept the letter. She left a note, stating that she did not have any stamps and would be unable to get any more because it was a Saturday.
¶7 The next two days, Sunday, December 31, 1995, and Monday, January 1,1996 were both legal holidays, so the post office was closed and mail was not delivered. See § 1-1- 216(a) and (b), MCA. On Tuesday, January 2, 1996, Johansen went to his mailbox and discovered the note left by the postal carrier the previous Saturday and saw that the envelope containing the rental payment was still in his postal box. That same afternoon, he drove to East Helena and personally mailed the payment from the East Helena post office. However, the envelope did not receive a postmark until the next day, January 3,1996.
¶8 By letter dated January 24, 1996, and delivered February 9, 1996, the Department notified Johansen that it was canceling his agricultural lease, for failure to timely pay his rent. It notified him that he no longer had the right to use the leased land, and that any use would be considered a trespass. The Department also informed him that it would be advertising the land for lease.
¶9 By letter dated April 1, 1996, Johansen requested that the Department reinstate his lease. He argued that the Department had the authority to do so pursuant to § 77-6-211(3), MCA, which provides that a lease may be reinstated where “the violation is not serious enough to warrant cancellation. ...” Alternatively, Johansen requested that the Department give him a contested case hearing pursuant to the Montana Administrative Procedure Act (MAPA), § 2-4-601, et seq., MCA.
¶10 The Department informally discussed the cancellation of the lease with Johansen. With regard to Johansen’s claim that he mailed the letter from the East Helena post office on January 2, 1996, the Department admitted that if had been postmarked that day rather than January 3, it would not have canceled the lease. Subsequently, by letter dated May 30, 1996, the Department denied his request for a contested case hearing, stating that because no person could verify (1) that he indeed placed the rental payment in the mail in a timely fashion; and (2) that the post office routinely accepts letters for mailing without postage stamps affixed to them, there were no issues of fact or law to be resolved by a contested case hearing. It also denied his request for reinstatement of the lease, and stated that the letter constituted a final agency decision pursuant to MAPA, § 2-4-623, MCA, which pertains to final agency decisions adverse to a party in a contested case.
¶11 On June 11, 1996, Johansen requested a redetermination of the Department’s decision or alternatively an appeal to the State Board of Land Commissioners pursuant to § 77-6-211, MCA. In direct response to the Department’s statement that no person could verify whether the postal carrier accepts letters for mailing without postage stamps affixed to them, Johansen submitted a letter from the post master in East Helena verifying that the postal carrier accepts such mail so long as money is provided for the stamps. He additionally submitted relevant excerpts from the USPS Handbook. Johansen also challenged the Department’s failure to address or make factual findings or legal conclusions that addressed the issues raised by Johansen in his original request for reinstatement.
¶12 At some point, the postal carrier servicing Johansen’s route testified by affidavit that she routinely accepts letters from the Johansen residence without the stamps affixed when the correct amount of money is provided for postage. She also confirmed Johansen’s statements that she found mail in his mailbox on Friday, December 29, and again on Saturday, December 30, but did not take the mail because snow had blown into the mailbox on Friday, and she was unable to get stamps on Saturday. Although this affidavit was filed with the District Court in connection with various motions below, the record is unclear as to when she signed the affidavit or when Johansen provided it to the Department, if at all.
¶13 By letter dated June 25, 1996, the Department again refused to reinstate his lease and rejected his request for a hearing before the State Board of Land Commissioners. The Department stated that the cancellation of the lease was “automatic.” Although the Department insisted that cancellation was “automatic,” it did not address its statutory authority to extend the rental due date past the December 31,1995 deadline, nor did it explain under what circumstances it has done so in the past. See § 77-6-506, MCA. It also rejected Johansen’s evidence that his rural postal carrier accepted letters without postage affixed to it, even if there was money for the postage in the mailbox along with the letter. Additionally, although it had earlier stated in its April 1, 1996 letter that its decision was a final decision under contested case proceedings pursuant to MAPA, § 2-4-623, MCA, it now stated for the first time that Johansen had no statutory right to a contested case hearing, because termination for nonpayment of rent was automatic pursuant to § 77-6-506, MCA. The Department also stated that its purpose in meeting informally with Johansen was to verify that his payment was not received by the statutory deadline. In its view, whether it set out a formal division of facts and law was thus “irrelevant.” Finally, it stated its view that § 77-6-211, MCA, which allows for reinstatement when the lease violation is not serious, only applies to cases where the lease is canceled “for cause,” such as for overgrazing, and not where the lease is canceled for failure to timely pay rent.
¶14 Consequently, Johansen filed a petition for judicial review with the District Court. The court ruled in favor of the Department on the parties’ cross-motions for summary judgment. It held that the Department’s action in this case was not a contested case proceeding, and that it therefore had no jurisdiction under MAPA to review the agency’s decision. Accordingly, it dismissed the petition for lack of jurisdiction. It is from this decision that the parties have filed cross-appeals.
STANDARD OF REVIEW
¶15 This Court reviews the grant or denial of summary judgment rulings de novo. Seeley v. Davis (1997), [284 Mont. 517], 946 P.2d 119, 121. It applies the same Rule 56, M.R.Civ.P., criteria used by the district court. Seeley, 946 P.2d at 121. In response to a motion for summary judgment in this case, the court dismissed the case based upon lack of jurisdiction. This Court reviews that legal determination to determine whether the court erred. Seeley, 946 P.2d at 121.
DISCUSSION
¶16 The District Court held that the Department’s action in this case was not a contested case proceeding under MAPA, § 2-4-601, et seq., MCA. It held that judicial review pursuant to MAPA was therefore not appropriate, and concluded that it had no jurisdiction to review Johansen’s claim.
¶17 On appeal, Johansen argues that the Department unlawfully denied him his right to a contested case proceeding pursuant to MAPA, § 2-4-601, et seq., MCA. He contends that the District Court did have jurisdiction under MAPA, § 2-4-701, et seq., MCA, to review his petition and that it should have ordered the Department to grant him a full contested case hearing prior to canceling his lease.
¶18 The Department agrees with Johansen that the District Court had jurisdiction to review his petition. However, it disputes Johansen’s contention that he was entitled to a contested case hearing or that the District Court had jurisdiction to review the petition pursuant to MAPA. Instead, it argues that the District Court had authority to review the petition pursuant to the standard of review for informal agency decisions set forth in Langen v. Badlands Co-op State Grazing District (1951), 125 Mont. 302, 234 P.2d 467; and North Fork Pres. v. DSL (1989), 238 Mont. 451, 778 P.2d 862.
¶19 For the reasons elaborated below, this Court agrees with the District Court’s determination that Johansen was not entitled to a contested case hearing and that MAPA was therefore inapplicable. But we do not agree with the court’s conclusion that it therefore lacked jurisdiction to review Johansen’s petition. We hold that the District Court did have jurisdiction to review the Department’s decision to determine whether the lease cancellation was arbitrary, capricious, unlawful, or unsupported by substantial evidence.
I.
¶20 Johansen is correct in asserting that pursuant to MAPA, an administrative agency must afford all parties a trial-type hearing in a “contested case.” Sections 2-4-601, 2-4-612, MCA. He is equally correct in asserting that the District Court has jurisdiction to conduct a judicial review of such contested cases. Section 2-4-701, et seq., MCA. But the statutory requirement of a trial-type hearing does not apply to every situation where a person’s interest is adversely affected by agency action. Rather, such a hearing is required only in “contested cases.”
¶21 A “contested case” within the meaning of MAPA is:
a proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. The term includes but is not restricted to ratemaking, price fixing, and licensing.
Section 2-4-102(4), MCA. The lease of agriculture land does not constitute ratemaking or price fixing, and Johansen does not contend that the lease constitutes a “license.” We therefore turn to the statutory provisions governing the lease of agricultural land to determine whether the Department was “required by law” to afford Johansen a trial-type hearing prior to canceling his lease.
¶22 The termination of a lease for failing to make a rental payment is provided for in § 77- 6-506(2), MCA. That section contains no provision requiring the Department to hold a hearing prior to canceling the lease. In contrast, § 77-6-211, MCA, provides for an administrative hearing when a lease is canceled pursuant to § 77-6-113, MCA (for failing to properly manage agricultural lands), § 77-6-208, MCA (for violating rules regarding subleasing of land), § 77-6-209, MCA (for failing to seek approval before changing a grazing lease to an agricultural lease), and § 77-6-210, MCA (for various causes, such as fraud, misrepresentation, or using the land for purposes other than those authorized by the lease). No provision requires the Department to hold a hearing when the lease is canceled for nonpayment.
¶23 Although a contested case hearing is not required by-statute, Johansen argues that such a hearing is required by Montana’s constitution. Specifically, he contends that such a hearing is “required by law” pursuant to Article II, Section 17 of the Montana State Constitution, which provides:
Due process of law. No person shall be deprived of life, liberty, or property without due process of law.
However, Johansen cites no legal authority and sets forth no analysis to support his argument. Johansen fails to provide analysis as to whether he had a property interest in the continuation of the agricultural lease that was canceled for failure to timely pay rent. Even were we to assume that it does constitute “property” within the meaning of Montana’s constitution, he provides no analysis as to what process was due in this case. For example, he cites no case law that requires the Department to hold a formal, pre-termination hearing as opposed to an informal post-termination hearing. Finally, Johansen provides no analysis as to how the Department allegedly violated his constitutional rights.
¶24 Johansen must cite authority for the position he advances. Rule 23, M.R.App.P. It is not this Court’s job to conduct legal research on his behalf, to guess as to his precise position, or to develop legal analysis that may lend support to that position. State v. Carter (1997), [285 Mont. 449], 948 P.2d 1173, 1180; State v. Fina (1995), 273 Mont. 171, 181, 902 P.2d 30, 38. Johansen has failed to establish that the Montana State Constitution required the Department hold a formal, trial-type hearing prior to canceling his lease. We hold that such a hearing was not “required by law” prior to terminating his lease, and the District Court did not have jurisdiction pursuant to MAPA to review his petition.
II.
¶25 Simply because an administrative decision is not a “contested case,” however, does not mean that Johansen has no avenue to seek review of the Department’s decision. Indeed, the Department itself admits that the courts have the inherent power to review its decisions, whether or not they involve “contested cases.” Citing Langen and North Fork Pres.,the Department contends that the District Court may review any informal administrative decision to determine whether the Department used a fair procedure, whether questions of law were properly decided, and whether the decision was supported by substantial evidence. Johansen does not directly re spond to the Department’s argument, other than to argue that the District Court has jurisdiction to review its decision pursuant to MAPA. He does not challenge the Department’s interpretation of the correct standard of review for non-MAPA agency decisions.
¶26 In North Fork Pres., this Court addressed its power to review a non-MAPA administrative decision. That case involved a challenge to the Department of State Lands’ approval of an operating plan on an oil and gas lease on school trust lands. North Fork Preservation Association filed a complaint, alleging that the Department of State Lands had failed to prepare an environmental impact statement as required by law. North Fork Pres., 778 P.2d at 863. Upon reviewing the case, this Court noted that § 2-4-704, MCA, the standard of review for judicial review of contested case hearings under MAPA was inapplicable, because that section deals with review of “contested cases,” and that case did not involve a contested case. North Fork Pres, 778 P.2d at 865-66. We thus addressed the standard of review the district court should use in that non-MAPA case and stated:
The review by the district court is only for the purpose of determining the legal rights of the parties involved. This is so because of the division of governmental powers under the Constitution, neither the district court nor the Supreme Court may substitute their discretion for the discretion reposed in boards and commissions by the legislative acts.
The appeal from the commission to the district court is for the purpose merely of determining whether upon the evidence and the law of the action of the commission is based upon any error of law, or is wholly unsupported by the evidence or clearly arbitrary or capricious. On such review courts will only inquire insofar as to ascertain if the board or commission has stayed within the statutory bounds and has not acted arbitrarily, capriciously or unlawfully.
North Fork Pres., 778 P.2d at 866 (citing Langen, 234 P.2d at 470).
¶27 We further stated that in reaching its decision, the Department of State Lands was carrying out a statutory duty assigned to it and not to the courts and that its decision involved expertise within its province. Accordingly, we held that the standard of review to be applied by the trial court and this Court was whether the record established that the agency acted “arbitrarily, capriciously, or unlawfully.” North Fork Pres., 778 P.2d at 867.
¶28 In this case, the Department is charged by the legislature with managing state trust lands, including the leasing of agricultural lands. Section 77-1-301(1), MCA, provides in part:
Under the direction of the board, the department has charge of the selecting, exchange, classification, appraisal, leasing, management, sale, or other disposition of the state lands.
The Department thus has jurisdiction in the first instance to determine whether to cancel a lease. We agree with the Department that it is the courts’ function to review its decision to determine whether its decision is arbitrary, capricious, unlawful, or unsupported by substantial evidence.
¶29 The Department additionally argues that when conducting its review, the District Court should afford its decision great deference. The Department is correct in noting that the courts defer to an agency’s decision where its resolution implicates substantial agency expertise. However, whether Johansen timely mailed his rental payment, whether the U.S. postal service “accepts” letters for mailing without postage on rural routes serviced by a contract carrier where a person has provided money for the postage, or whether mailing takes place upon placing a letter in a mailbox or only upon the receipt of a postmark are not disputes that invoke any particular expertise within the Department’s province. They do not involve the high level of technical expertise that is required, for example, when the Department cancels alease due to mismanagement of State land. Thus, although the reviewing courts will conduct a limited review of the Department’s decision, it is not necessary that they accord any particularly special deference to the decision in this case.
¶30 We hold that the District Court did have jurisdiction to review the Department’s decision to cancel Johansen’s lease for failing to make timely lease payments. We reverse and remand for further proceedings consistent with this opinion.
¶31 Reversed and remanded.
JUSTICES NELSON, TRIEWEILER, REGNIER and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion and Order of the Court.
¶1 The State of Montana moves this Court to dismiss Petitioner Kristofer Hans’ (Hans’) second amended petition for post-conviction relief or, in the alternative, to strike claims. Hans has filed a brief in opposition to the motion and a cross-motion to strike certain material from the State’s brief.
Factual and Procedural Background
¶2 On May 10, 1988, Hans pled guilty to charges of deliberate homicide, attempted deliberate homicide, and two counts of aggravated assault. On June 3,1988, Hans was sentenced to the Montana Department of Institutions for two concurrent 100-year terms plus 3 years for the use of a weapon and two 10-year terms plus 2 for the use of a weapon, to be served concurrently. Hans’ counsel, Bradley Parrish, filed a notice of appeal with this Court, which was subsequently withdrawn. As a result, no direct appeal was taken. On April 12, 1993, Hans filed herein a pro se petition for post-conviction relief. This Court appointed the appellate public defender to represent Hans. Hans’ counsel filed an amended petition for post-conviction relief on his behalf, which raised the following claims:
¶3 1. Hans’ guilty pleas were not voluntarily, knowingly, or intelligently entered.
¶4 2. Parrish rendered ineffective assistance of counsel by:
a) failing to investigate and prepare for trial; b) failing to adequately discuss the case with Hans; c) failing to adequately inform Hans of the elements of the crimes charged and consequences of his guilty pleas; d) failing to object when mental health evaluations were provided to the court and prosecution; e) failing to inform Hans of his rights or to protect his rights regarding those procedures; f) failing to object when Hans was asked to testify under oath about the attorney/client relationship; and g) failing to protect Hans’ right to appeal.
¶5 3. The court erred in not appointing a psychiatrist to assist in Hans’ defense.
¶6 4. The court erred in ordering the mental health experts to report to the court and to both counsel.
¶7 5. The mental health experts’ failure to advise Hans of his right to counsel and fifth amendment privilege violated those rights.
¶8 On August 25,1994, this Court entered its order denying claims three and four, remanding to the District Court for an evidentiary hearing on the ineffective assistance of counsel claims, and reserving ruling on the remaining issues. On November 30, 1994, the District Court held an evidentiary hearing and entered its findings on November 21, 1996. The District Court found that Parrish had not been ineffective, except in failing to preserve Hans’ right to appeal.
¶9 On July 2, 1997, this Court entered its opinion and order denying Hans relief on the remaining claims. Hans v. State (1997), 283 Mont. 379, 942 P.2d 674 (hereinafter Hans I). We agreed with the District Court’s finding that Parrish rendered ineffective assistance by abandoning Hans’ appeal. We held that “all claims foreclosed from appeal because of counsel’s abandonment on appeal may be raised in a post-conviction petition” and allowed Hans to further amend his petition to address these issues. Hans I, 942 P.2d. at 693.
¶10 On September 25, 1997, Hans filed his second amended petition for post-conviction relief, which raises eleven issues related to sentencing. The State filed a motion to dismiss Hans’ petition or, in the alternative, to strike claims. The State contends that in Hans I, this Court limited the issues that could be raised in Hans’ second amended petition to claims that Hans had adequately raised in the first petition, but had declined to fully address based upon a perceived procedural bar. The State argues that Hans’ second amended petition raises many issues that were not preserved for appeal in the District Court, have been waived by Hans’ failure to raise them in his first amended petition, or have already been decided by this Court in earlier proceedings. In response, Hans argues that this Court intended to create a new remedy for his counsel’s failure to perfect his right to appeal that replaced the out-of-time appeal to which he was entitled. Thus, Hans argues that he is allowed to raise all issues otherwise appealable in the first instance and all sentencing issues normally raised in a petition for post-conviction relief.
¶11 Hans has also filed a cross-motion to strike pages one through three of the State’s reply memorandum in support of its motion to dismiss or strike. Hans claims that the State’s memorandum suggests that he engaged in abuse of process in filing his second amended petition for post-conviction relief. Hans argues that abuse of process is a civil tort that has no application in these proceedings and that the State has no legal basis for arguing that Hans deliberately withheld the claims brought in the second petition.
Discussion
I.
¶12 In our recent opinion and order we allowed Hans “to further amend his petition for the sole purpose of fully addressing the sentencing issues.” Hans I, 942 P.2d at 693. Based on this language, the parties disagree as to which claims are properly before this Court in what has been labeled a second amended petition for post-conviction relief. Thus, we first clarify the scope of the remedy that we intended to provide to Hans and to other defendants who are prejudiced by their counsel’s failure to perfect a direct appeal.
¶13 In Hans I, we stated:
Hans has brought to this Court’s attention the dilemma posed by Finney and Tecca. Although Finney appears to provide a remedy for abandonment on appeal by way of post-conviction relief, Tecca limits post-conviction claims to those that could not have been raised on appeal. Hans argues that the constraints of Tecca foreclose his ability to raise the appealable issues arising out of sentencing in this post-conviction proceeding. That is, since they could have been raised on appeal, they cannot be raised in a post-conviction proceeding. For this reason, Hans claims that an out-of-time appeal is the appropriate remedy.
Hans I, 942 P.2d at 693. In his first amended petition, Hans raised the issue of counsel’s ineffectiveness in abandoning his appeal. He argued that, to put him in the position he would have been in but for his counsel’s abandonment, this Court should follow federal and other state courts in adopting an out-of-time appeal as the appropriate remedy. See Dickerson v. Vaughn (3rd Cir. 1996), 90 F.3d 87; Broeckel v. State (Alaska App. 1995), 900 P.2d 1205.
¶14 Under § 46-21-101, MCA, a person “who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or laws of this state or the constitution of the United States” may petition for post-conviction relief. In asking this Court for an out-of-time appeal, Hans was presuming that he had an adequate remedy of appeal and that if he was granted an out-of-time appeal, it would then be followed by a subsequent post-conviction petition in which he could challenge the validity of his sentence.
¶15 However, this Court rejected the out-of-time appeal followed by a subsequent petition for post-conviction relief procedure and held: “To resolve the confusion created by the anomalous results in Finney and Tecca, we now hold that all claims foreclosed from appeal because of counsel’s abandonment on appeal may be raised in a post-conviction petition.” Hans I, 942 P.2d at 693. The State argues that by this language, we expressly limited Hans’ second amended petition to appealable issues. However, in his brief in support of the second amended petition Hans stated that “[t]he consequence of this [Court’s] resolution is to require petitioner to combine the issues that previously may have been appropriate for direct appeal, with those that are more appropriately characterized as post conviction issues. That is, Mr. Hans may not present merely direct appeal-type issues in this petition. The prior practice [sic] first pursuing an appeal, even an out-of-time appeal, and then pursuing post conviction relief seems to have been rejected.”
¶16 Indeed, this Court intended to reject the procedure that Hans urged us to employ. However, contrary to the State’s assertion, in rejecting this procedure and allowing Hans to raise appealable issues in a second amended petition for post-conviction relief, we did not intend to limit Hans to only those claims that could have been raised on direct appeal. Rather, we only intended to simplify what we believe to be a needlessly cumbersome and time-consuming procedure. Had we allowed Hans an out-of-time appeal, the result would have been a three-step procedure: (1) an initial petition for post-conviction relief raising, inter alia, counsel’s abandonment of the appeal; (2) an out-of-time appeal to remedy the abandonment; and (3) a subsequent petition for post-conviction relief addressing the validity of the sentence under § 46-21-101, MCA. In Hans I, we simply combined the second and third steps.
¶17 Hans argues that he should be allowed to raise all issues related to sentencing, those that normally would have been brought in a direct appeal and those more appropriately raised in post-conviction proceedings. However, Hans has already filed, and this Court has already decided, one petition for post-conviction relief. Accordingly, we cannot allow Hans to raise all claims without regard to whether they have already been decided. As the State notes, this Court did not by its opinion declare open season and waive all other procedural bars. Therefore, we hold that in this second amended petition for post-conviction relief, Hans may raise two types of issues: (1) those issues that could have been raised in a direct appeal but for counsel’s abandonment of his appeal; and (2) those issues properly raised in a petition for post-conviction relief under § 46-21-101, MCA, that have not already been raised.
¶18 In a direct appeal, the defendant is limited to those issues that were properly preserved in the district court, § 46-20-104(2), MCA, and to allegations that the sentence is illegal or exceeds statutory mandates. State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997. In a petition for post-conviction relief under § 46-21-101(1), MCA:
A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, ... or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence to vacate, set aside, or correct the sentence or revocation order.
Hans is likewise limited in the issues he may raise.
¶ 19 To clarify the new procedure set forth by this Court in Hans I, in the future, a defendant whose counsel has abandoned his or her appeal should raise, in one petition for post-conviction relief, the claim that counsel was ineffective in abandoning the appeal, all claims that could have been raised on direct appeal, and all claims that would normally be appropriate in a petition for post-conviction relief, including challenges to the validity of the sentence under § 46-21-101, MCA, and other ineffective assistance claims.
¶20 Having clarified our opinion in Hans I, we proceed to apply this holding to the claims raised in Hans’ second amended petition for post-conviction relief.
II.
¶21 Hans raises the following claims:
¶22 1. The District Court:
a) made erroneous findings of fact at sentencing regarding Hans’ prospects for rehabilitation; Hans’ age as the only mitigating factor; whether Hans suffered from a mental disease or defect; Hans’ ability to appreciate the criminality of his conduct and conform his conduct to the requirements of the law; and Hans’ relatively high IQ supporting the sentence; and
b) erred as a matter of law in equating the mental state elements of “purpose” or “knowledge” with the requirements of § 46-14-311, MCA.
¶23 2. The District Court violated applicable law and statutes by failing to make findings regarding whether Hans suffered from a mental disease or defect, which resulted in the imposition of a cruel and unusual punishment.
¶24 3. The sentence imposed, and the statutes on which it was based, failed to account or provide for the prospect of rehabilitation and thus violated Hans’ rights under the Eighth Amendment and Article II, §§ 15, 22, and 28 of the Montana Constitution.
¶25 4. The sentence imposed, and the statutes upon which it was based, violated Hans’ due process rights by impermissibly shifting the burden of proving mental disease or defect to him.
¶26 5. Alternatively, the sentence was based on a mutual mistake or misunderstanding regarding the manner in which Hans’ custody determination would be made.
¶27 6. The District Court failed to properly designate Hans a dangerous offender or to fully and appropriately explain the reason for this designation.
¶28 7. Hans’ counsel was ineffective by:
a) investigating, preparing, and proceeding according to an incorrect theory of the manner of Hans’ custody determination;
b) failing to object to testimony of Dr. Van Hansel based on an interview and mental exam given during the sentencing phase;
c) eliciting testimony adverse to the defense’s position;
d) failing to object when the District Court relied on communications of people who were not witnesses at the hearing;
e) failing to advise Hans that the court could use and consider the Montana State Hospital (MSH) evaluation at sentencing; and
f) failing to object when the court considered prior incidents involving Hans in which the sentencing judge was a victim.
¶29 8. Each of counsel’s acts prejudiced Hans.
¶30 9. Hans was denied his right to due process when he was denied a defense mental health expert at sentencing; the sentencing judge discussed the case with people not called as witnesses; the judge relied on Hans’ prior acts of misconduct in which the judge was a victim; the State’s mental health expert conducted a mental evaluation of Hans prior to testifying at the sentencing; and Hans was not advised that the mental health evaluation could be used at sentencing.
¶31 10. Hans was prejudiced by each of the deprivations of due process alleged in claim 9.
¶32 11. Hans was denied his Sixth and Fourteenth Amendment rights to counsel when the State’s mental health expert evaluated Hans and testified based on the evaluation without notice and in violation of Hans’ fundamental rights.
A. Challenges to the Validity of Hans’ Sentence
¶33 In claims 1, 5, and 6, Hans alleges that the District Court made erroneous findings of fact and incorrectly applied the law in sentencing him. Claims 2, 3, 4, 9, 10, and 11 allege that the District Court violated, or that the sentence itself violates, the U.S. Constitution or Montana constitution and statutes. As stated in Part I, in a direct appeal, the defendant is limited to those issues that were properly preserved in the district court, § 46-20-104, MCA, and to allegations that the sentence is illegal or exceeds statutory mandates. Lenihan, 602 P.2d at 1000. Upon reviewing the record, we determine that claims 1, 2, 3, 4, 5, 6, 9, 10, and 11 were not properly preserved for appeal below and do not challenge the legality of the sentence. Thus, they could not have been raised in a direct appeal or an out-of-time appeal.
¶34 This Court addressed a defendant’s failure to properly preserve sentencing issues for appeal in State v. Nelson (1995), 274 Mont. 11, 906 P.2d 663. In Nelson, the defendant pled guilty to felony assault and appealed his sentence of imprisonment, arguing that the district court failed to properly consider alternatives to incarceration as required by §§ 45-5-201 and -202, MCA, in sentencing nonviolent offenders. Nelson, 906 P.2d at 664, 666. Nelson had not objected below nor had he requested that the court reconsider the matter after it pronounced sentence. Nelson, 906 P.2d at 667. This Court held that because Nelson failed to alert the District Court to its alleged failure to consider alternatives to imprisonment, he was barred by § 46-20-104, MCA, from raising the issue on appeal. Nelson, 906 P.2d at 667.
¶35 In this case, Hans claims that the District Court made erroneous findings and conclusions and that it violated applicable statutes and the Montana and U.S. constitutions at sentencing. However, Hans did not object on these bases at sentencing nor did he file a motion for reconsideration or to amend findings in the District Court. Thus, these issues were not properly preserved for appeal.
¶36 Further, though Hans claims that he was sentenced in violation of the laws of Montana, the sentence itself is not outside the statutory parameters and, thus, not illegal. We have held that “an appellate court may review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Nelson, 906 P.2d at 667 (citing Lenihan, 602 P.2d at 1000). This Court’s review is limited to questions of legality, and a sentence is not illegal when it is within the parameters provided by statute. State v. Gunderson (1997), 282 Mont. 183, 936 P.2d 804; see also State v. Goulet (1996), 277 Mont. 308, 921 P.2d 1245; Nelson, 906 P.2d at 667.
¶37 For example, in Nelson, we discussed whether the court’s failure to consider alternatives to incarceration, as it was required to do by statute, thereby rendered the sentence illegal. Nelson, 906 P.2d at 668. We held that while the court had an affirmative duty to consider certain matter at sentencing, the failure to abide by the statutory requirements, in the absence of an objection, does not render the sentence illegal. Nelson, 906 P.2d at 668.
¶38 Likewise, in this case, the sentence imposed did not exceed the statutory maximum for the crime. Hans pled guilty to one count of deliberate homicide, for which he was sentenced to a term of 100 years plus 3 for the use of a dangerous weapon; one count of attempted deliberate homicide, for which he was sentenced to 100 years plus 3 for the use of a dangerous weapon, concurrent; and two counts of aggravated assault, for which he was sentenced to two terms of 10 years plus 2 for the use of a dangerous weapon, concurrent to the sentence on Count I. Each of these sentences was within the statutory mandates. See § 45-5-102(2), MCA (1985) (providing that the offense of deliberate homicide or attempted deliberate homicide shall be punishable by death, life imprisonment, or imprisonment in the state prison for a term of not less than 10 years or more than 100 years); § 45-5-202(3), MCA (1985) (providing that the offense of aggravated assault shall be punishable by imprisonment of a term of not less than 2 years or more than 20 years). Therefore, Hans’ sentence is not illegal.
¶39 Though these issues were not properly preserved and would be barred on appeal, we determine that they are properly brought under the post-conviction relief statute. As stated in part I, under § 46-21-101, MCA, Hans may challenge his sentence on the grounds that it “was imposed in violation of the constitution or the laws of this state or the constitution of the United States... or is otherwise subj ect to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. ...’’Thus, the challenges brought under claims 1,2, 3, 4, 5, 6, 9,10, and 11 may be raised in this second amended petition for post-conviction relief.
B. Ineffective Assistance of Counsel
¶40 In claims 7 and 8, Hans claims that his counsel was ineffective in representing him at sentencing and that he was therefore prejudiced. Hans raised issues of ineffective assistance of counsel in his first amended petition for post-conviction relief, including the claim that counsel was ineffective in abandoning the appeal. Therefore, in addition to discussing whether the ineffective assistance claims raised here would have been appropriate in a direct appeal or more appropriately raised in a petition for post-conviction relief, we must also determine whether they have already been decided.
¶41 This Court has held that when ineffective assistance of counsel claims can be decided upon the record, such claims are appropriate for consideration on direct appeal. In re Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156. But, when ineffective assistance of counsel claims require consideration of factual matters outside the record, the claims are inappropriate in the context of a direct appeal. Petition of Evans, 819 P.2d at 157.
¶42 In claims 7(b), (c), (d), and (f), Hans alleges that his trial counsel was ineffective by failing to object to errors or by eliciting damaging testimony at sentencing. Because all of these claims can be decided on the basis of the record, we determine that they could have been raised in a direct appeal. Thus, they are appropriately raised in this petition.
¶43 Conversely, to consider claims 7(a) and (e), this Court must look outside the record. Accordingly, these claims are of the type usually raised in a petition for post-conviction relief. Petition of Evans, 819 P.2d at 157. Under § 46-21-101, MCA, the petitioner may claim, in a petition for post-conviction relief, that his or her sentence is “subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy.” Therefore, the allegations of ineffective assistance contained in claims 7(a) and (e) are generally appropriate in a petition for post-conviction relief.
¶44 However, as stated above, the unique procedural posture of this case requires further scrutiny to ensure that this Court does not consider again claims of ineffective assistance brought and decided in Hans I. In claim 7(e), Hans alleges that his counsel was ineffective in failing to advise him that the court could use and consider the MSH evaluation at sentencing. We determine that Hans raised a substantially similar claim in his first amended petition for post-conviction relief and, thus, that he is barred from raising the issue here.
¶45 In his first amended petition for post-conviction relief, Hans argued that his counsel was ineffective in failing to advise him of his constitutional right to remain silent during the mental health evaluation at MSH and that the mental health evaluation could be used against him in future proceedings. Hans I, 942 P.2d at 688. This Court agreed that informing a client of the consequences of a mental health evaluation, including how that information can be used, is part of an attorney’s general duty to keep the client informed regardless of whether the defense requested the evaluation. Hans I, 942 P.2d at 688. We held that Hans’ counsel’s failure to inform him of the consequences of his participation in the mental health evaluation was deficient, but that this deficiency did not meet the second prong of the Strickland test. Hans I, 942 P.2d at 689-90.
¶46 The allegation made in claim 7(e) — that Hans was prejudiced by his counsel’s ineffective failure to advise him that the MSH evaluation could be considered at sentencing — was decided in Hans I when we held that his counsel’s failure to inform Hans of the possible uses for the evaluation was ineffective but did not satisfy the Strickland test. Thus, we hold that Hans is barred from raising this claim again, and we order it stricken from his second amended petition for post-conviction relief.
III.
¶47 Hans has also filed a cross-motion to strike or to disregard allegations of abuse of process in the State’s reply memorandum. To the extent the State’s brief suggests abuse of process, this Court will disregard these allegations.
IV.
¶48 Based on the foregoing, it is ORDERED that the State’s motion to dismiss is DENIED.
¶49 It is ORDERED that the State’s motion to strike claim 7(e) is GRANTED. It is further ORDERED that the State’s motion to strike the remaining claims is DENIED.
¶50 It is ORDERED that Hans’ motion to strike is DENIED.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, GRAY, HUNT and TRIEWEILER concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Steve and Julie Quigley (the Quigleys) contracted with John and Elizabeth Acker (the Ackers) for the purchase of land owned by the Ackers. The Quigleys defaulted on their payment obligation, and were unable to pay the accelerated balance of the purchase price on time. The Ackers then sought to terminate the contract and impose a forfeiture. The Quigleys brought this action to obtain a declaration that the Ackers’ notices of default and termination were defective; to obtain relief from forfeiture; and to obtain attorney fees and costs of suit. The Sixth Judicial District Court, Park County, entered judgment in favor of the Quigleys on the issues of defective notices and relief from forfeiture, but held that each party was responsible for their own attorney fees and costs. From that judgment, the Ackers appeal on the issues of defective notice and relief from forfeiture, and the Quigleys cross-appeal on the issue of attorney fees and costs. We affirm in part and reverse in part.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err in finding and concluding that the Ackers’ Default and Termination Notices were defective?
¶4 2. Did the District Court err in concluding that the Quigleys were entitled to relief from forfeiture under § 28-1-104, MCA?
¶5 3. Did the District Court err in ordering the parties to pay their own attorney fees and costs?
¶6 4. Are the Quigleys entitled to attorney fees and costs on appeal?
BACKGROUND
¶7 This action involves the interpretation and resolution of a contract for sale of land described as Section 19, Township 4 North, Range 10 East, M.P.M., Park County, Montana (Section 19). The original parties to this contract were the Ackers as sellers and Robert and Jeannette Baldwin (the Baldwins) as buyers. On August 15, 1988, the Ackers agreed to sell to the Baldwins Section 19 and Section 29 of Township 4 North, Range 10 East for $450,000. Between 1988 and 1991, the Baldwins’ right to purchase Section 19 was assigned to several different successors.
¶8 On November 15, 1991, the Quigleys agreed to buy Section 19, and an additional 640 acres different from that of Section 29, from Gary and Audrey Swenson (the Swensons) and Wilderness Images Ltd. Profit Sharing Plan (Wilderness Images). The Quigleys agreed to pay $706,932.07 for the two tracts of land and assume the obligations of buyer under the original Acker/Baldwin contract for Section 19. At the time of Quigleys’ purchase, the principal balance remaining on the Acker/Baldwin contract was $131,432.07 with an interest rate of 9%. Starting in November 1991, pursuant to the terms of the contract, the Quigleys made payments of $2185.22 on the fifteenth of each month to the parties’ escrow agent, Citizens Bank and Trust of Big Timber, Montana. Also, pursuant to the terms of the contract, the Quigleys paid the real property taxes assessed on the property.
¶9 In 1994, the Quigleys decided to sell their California construction company and use the proceeds to prepay the balance due under the contract with the Swensons and Wilderness Images. The Swensons and Wilderness Images agreed to the prepayment, but only to the extent of principal excluding the balance owed on the Acker/Baldwin contract. The Acker/Baldwin contract provided that prepayment could be made only upon written consent of the Ackers. The Quigleys requested the Ackers’ consent to prepay, but the Ackers refused for tax reasons.
¶10 The Quigleys continued to meet their obligations under the contract to the Ackers until August 1996 when they missed a payment. At the time of default, the Quigleys had paid $657,204.07 of the $706,932.07 principal due under their contract with the Swensons and Wilderness Images. The difference of $49,728 reflected the balance of the principal owing on the Acker/Baldwin contract. The Quigleys had also spent more than $20,000 in labor, improvements, and maintenance of the house and shop building located on Section 19.
¶11 Several adverse events contributed to the Quigleys’ default. First, after sale of the California construction company, the Quigleys were unable to collect the estimated $200,000 in accounts receivable. This was due in part to clients unwilling or unable to pay their bills, and to inexperienced administrative personnel attempting to wind up the affairs of the company. Second, in October 1993, the Quigleys started a new construction company in Wilsall, Montana. The Montana company experienced unanticipated problems with cash flow, and again the Quigleys had trouble collecting amounts owed them by their customers. One customer owed the Quigleys more than $50,000. Third, on September 9, 1996, a judgment in the amount of $125,000 was filed against the Quigleys and their California construction company as the result of a lawsuit filed by the carpenters’ union. Lastly, In October 1996, the Internal Revenue Service filed a tax lien in the amount of $126,230 against the Quigleys. The tax lien involved a dispute over business related deductions taken by the Quigleys on earlier tax returns with the advice of their accountant.
¶12 On September 17,1996, the Quigleys made their August 1996 payment to the escrow agent. On September 21, 1996, the Quigleys received a Notice of Default for Contract for Deed (Default Notice), but the Quigleys’ check did not accompany the Default Notice. Upon the direction of the Ackers, the escrow agent held the check. The Default Notice informed the Quigleys that they had defaulted on their August and September payments, and that to cure the default, the Quigleys were to pay $4370.44 of the principal, $782.18 in unpaid taxes, $100.00 in attorney fees, and interest and penalties, within thirty days. However, the Default Notice failed to specify the amount of interest and penalties due and the place where payment was to be made as required by the Acker/Baldwin contract. The Default Notice stated that if the default was not cured within thirty days, the contract for deed would be terminated and forfeiture would be imposed.
¶13 For the same reasons stated above, the Quigleys were unable to cure the default on time. On November 2, 1996, the Quigleys received a Notice of Termination of Contract for Deed (Termination Notice). The Termination Notice informed the Quigleys that no payments had been received by the escrow agent, and that the Ackers had elected to accelerate the entire balance due on the contract plus 9% interest per annum computed from July 25, 1996. The Termination Notice stated that to prevent termination of the contract and forfeiture, the Quigleys must pay the accelerated principal balance of $49,728.00, $782.18 in unpaid taxes, $200.00 in attorney fees, and interest and penalties, within thirty days. Again, the Termination Notice failed to specify the amount of interest and penalties due and the place where payment was to be made. Also, the Acker/Baldwin contract provided a sixty-day period in which a buyer could pay the accelerated balance and prevent termination of the contract. Realizing the error of the notice period, the Ackers sent the Quigleys an amended Termination Notice on November 12, 1996, allowing sixty days, until January 11, 1997, to pay the required sums and prevent termination and forfeiture. This amended Termination Notice was not signed by or on behalf of the Ackers. Meanwhile, on November 6, 1996, the Ackers had returned the Quigleys’ check to them.
¶14 The Quigleys attempted to obtain sufficient funds to pay the amounts demanded by the Ackers but were unsuccessful. The Quigleys inquired about the possibility of a loan from both a California bank and a Montana bank but the banks told the Quigleys they would not qualify. The Quigleys’request to receive advance payments from the buyer of their California construction business was also unsuccessful. The Quigleys then attempted to sell Section 19 to an adjacent landowner, Sherry Nicholas. On December 13, 1996, Ms. Nicholas signed a nonbinding preliminary agreement to buy Section 19 for $930,000. However, the Quigleys did not expect to close this sale before the January 11, 1997 termination deadline. On January 9,1997, the Quigleys approached the Ackers and offered to pay more money in exchange for an extension of time in which to complete the sale of Section 19 to Ms. Nicholas, and pay the Ackers the amounts due under the Acker/Baldwin contract. Mr. Acker responded that he would talk to Ms. Acker and would have an answer to the Quigleys by the next morning. Mr. Acker never responded to the Quigleys’ request.
¶15 On January 14, 1997, the Ackers terminated the Acker/Baldwin contract and directed the escrow agent to release a reconveyance deed to Section 19. That same day, the Ackers took title to Section 19 and attempted to cause the forfeiture of all of the Quigleys’ rights under the Acker/Baldwin contract.
¶16 On February 4, 1997, the Quigleys attempted to resolve the matter by sending a letter and a cashier’s check for $54,263.11 to the Ackers. The letter stated that the check was being tendered pursuant to § 28-1-104, MCA, Montana’s anti-forfeiture statute, and that the Quigleys’ failure to make the August and September payments on time did not result from any grossly negligent, willful, or fraudulent breach of duty. The letter further indicated that the amount tendered represented the $49,728.00 accelerated balance due on the Acker/Baldwin contract; $2,378.44 in interest calculated at 9% from July 25, 1996 to February 4, 1997; $1946.67 in unpaid taxes; and $200.00 in attorney fees. The Ackers held the check until February 27, 1997, when it was returned to the Quigleys.
¶17 The Quigleys filed a complaint in District Court seeking relief from the Ackers’ attempt to terminate the Acker/Baldwin contract and impose a forfeiture. The Quigleys argued that first, the Ackers failed to follow the default and termination procedures provided in the contract, and second, the Quigleys were entitled to relief from forfeiture pursuant to § 28-1-104, MCA. A bench trial was held on April 25, 1997. On May 28, 1997, the District Court entered its Findings of Fact, Conclusions of Law, and Order in favor of the Quigleys. The District Court made the following findings of fact:
10. From November 1991 to August 1996, the Quigleys paid a total of $657,204.07 of the principal balance of $706,932.07 originally due under the contract for deed with the Swensons. During this period, the Quigleys paid the Ackers $82,204.07 of principal [$131,432.07] due pursuant to the Acker/Baldwin contract, plus 9% interest.... [T]he Quigleys spent over $20,000 in labor, improvements, and maintenance of the house and shop building located on Section 19.
11. In 1994, the Quigleys attempted to pre-pay the balance due under the contract The Ackers did not agree to the pre-payment because of tax considerations.
21. The Quigleys’ failure to pay the sums due was not the result of gross, negligent, willful or fraudulent breach of duty. The Quigleys suffered a series of financial set-backs beyond their control. These included a judgment filed in favor of a carpenter’s union for over $125,000 and an IRS tax lien filed in the amount of $126,230. The latter involved a dispute over deductions taken with the advice of the Quigleys’ accountant. These two liens made it very difficult to obtain a loan from a financial institution to pay the default.
22. Further, the Quigleys left a lucrative construction business in California and started one in Montana in 1993 called Quigley Construction. The Montana business has been slow to grow and has experienced severe cash flow problems. However, had some of the business’ customers paid their bills, the Quigleys would have been in a position to make the required payments under the contract.
23. Beginning in the fall of 1996, the Quigleys attempted to sell Section 19 in order to raise money sufficient to pay the Ackers the amounts demanded in the Termination Notice .... The sale could not be completed because of disputes in the language of the contract, but the selling price for the property was set at $930,000.
25. The application of a forfeiture of the Acker/Quigley [Acker/Baldwin] contract would result in a windfall to the Ackers, for they have received, and would keep, over $300,000 in principal payments (plus interest) while retaining Section 19. The Quigleys would have paid the Ackers over $82,000, plus interest, and would receive nothing. The Ackers lose nothing by accepting the money due under the contract, but would receive a windfall if the forfeiture were allowed to stand. Application of a forfeiture in these circumstances would be harsh and inequitable.
On the basis of these findings, the District Court made the following conclusions of law:
4. The Quigleys were unable to make payments due on the Acker/Baldwin contract ... due to temporary cash flow shortages resulting from legitimate and unexpected business problems. In the face of these shortages, the Quigleys acted reasonably to raise money to pay off the contract and also attempted to sell Section 19. These efforts were reasonable under the circumstances, and the Quigleys have established that they are equitably entitled to the relief they seek because their failure to pay amounts demanded by the Ackers was not the result of a grossly negligent, willful, or fraudulent breach of duty.
5. The Quigleys are entitled pursuant to Section 28-1-104, MCA, to relief from the forfeiture of their rights under the Acker/Baldwin contract upon their re-tender to the Ackers of the $54,253.11 tendered to them earlier.
The District Court also ordered that the parties bear their own attorney fees and costs. On June 19, 1997, the Ackers filed a notice of appeal on the issues of defective notices and relief from forfeiture, and on June 24, 1997, the Quigleys filed a cross-appeal on the issue of attorney fees and costs.
STANDARD OF REVIEW
¶18 Regarding the standard of review for the first and third issues, this Court will not overturn a district court’s findings of fact unless those findings are clearly erroneous. Rule 52, M.R.Civ.P.; Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. Daines, 888 P.2d at 906. In determining whether a finding of fact is clearly erroneous, “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), M.R.Civ.P. We review a district court’s conclusions of law to determine whether the court’s interpretation of law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶19 The second issue concerning relief from forfeiture is equitable in nature and, therefore, requires a more deferential standard of review. In equity cases, we apply the standard of review set forth in § 3-2-204(5), MCA. Glacier Park Co. v. Mountain, Inc. (1997), [285 Mont. 420], 949 P.2d 229, 233. Under § 3-2-204(5), MCA, we have a duty to determine all of the issues of the case and to do complete justice. Glacier Park, [285 Mont. 420], 949 P.2d at 233 (citations omitted).
DISCUSSION
Issue 1
¶20 Did the District Court err in finding and concluding that the Ackers’ Default and Termination Notices were defective?
¶21 The Acker/Baldwin contract provides the following with regard to default and termination procedures:
In case of the failure of the purchasers to make any payments of principal or interest, ... the sellers at their election may declare this contract in default by sending written notice to the purchasers and the escrow agent, setting forth the amount due upon the contract, time and place where payment can be made, and any breach or breaches. Should such default remain uncured for more than thirty (30) days after written notice to purchasers, the sellers may at their option, by an additional written notice to purchasers and escrow agent, accelerate the entire outstanding balance, together with accrued interest immediately due and payable, and upon nonpayment after sixty (60) days, sellers may terminate and forfeit this agreement without further notice. (Emphasis supplied.)
The Ackers argue that their Default and Termination Notices complied with the above provisions in that they “clearly set forth the amount owed and how to cure the defaults.” We disagree.
¶22 The Ackers’ Default and Termination Notices did not comply with the procedures outlined in the above provision. We have held:
[T]here must be strict pursuance of the course prescribed by the contract in foreclosing the vendee’s rights thereunder, particularly when it involves a forfeiture of the payments made by the vendee, including a reasonably correct statement in the notice of the amount due and required to be paid to avoid forfeiture.
Shuey v. Hamilton (1963), 142 Mont. 83, 91, 381 P.2d 482, 486 (citing Rader v. Taylor (1958), 134 Mont. 419, 427, 333 P.2d 480, 486). The Ackers’ Default and Termination Notices failed to specify two key items required by the terms of the Acker/Baldwin contract: the amount of interest and penalties due on the contract, and the place where payment was to be made. Additionally, the amended Termination Notice was not signed by or on behalf of the Ackers. By not including these missing items in their Default and Termination Notices, the Ackers did not strictly pursue the course and procedures for default and termination prescribed by the Acker/Baldwin contract.
¶23 In addition to being facially defective, the notices were defective because they were based on an erroneous assessment that the Quigleys were in default at the time the Default and Termination Notices were sent. Section 30-3-310, MCA codifies Section 3-310 of the Uniform Commercial Code (U.C.C.) and provides:
Effect of instrument on obligation for which taken. (1) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument.
(2) Unless otherwise agreed and except as provided in subsection (1), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken.
(3) In the case of an uncertified check, suspension of the obligation continues until dishonor of the note or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check.
¶24 Although the courts of Montana have not had occasion to interpret § 30-3-310, MCA, other jurisdictions have interpreted the identical Section 3-310, U.C.C., and have applied it to facts similar to those in the instant case. In Grumet v. Bristol (N.H. 1984), 484 A.2d 1099, a buyer of real estate gave the seller a mortgage to secure a note for a portion of the purchase price. The note provided that the buyer was to make monthly payments on the fifteenth of each month, and that a default for a period of one month would entitle the seller to accelerate the entire balance of the note. The buyer did not make his December 1982 payment on time. On January 13, 1983, the buyer sent the seller a postdated check for the previous month’s payment. The seller received the check and held it for one week. On January 20, 1983, the seller deposited the check. However, on the same day, the seller sent the buyer a notice of mortgagee’s foreclosure sale and informed the buyer that the entire balance of the note had been called due. The buyer then petitioned for an injunction against foreclosure.
¶25 Upon these facts, the New Hampshire Supreme Court applied Section 3-310, U.C.C. (then Section 3-802, U.C.C., now repealed) and granted the injunction against foreclosure. The court held:
The retention of the check ... was a taking for an underlying obligation within the meaning of the statute .... Consequently, by January 20, the underlying obligation to pay the December installment had been suspended, pending presentment of the check. Since the obligation was suspended, there was, by definition, no default on the obligation during the period of suspension. In the absence of default, the defendant [seller] had no right to make a further demand and to elect to accelerate. In summary, the defendant [seller] purported to act on the basis of a default during the very time that his right to claim the default was suspended. As a matter of law, therefore, his purported election to accelerate had no legal effect.
Grumet, 484 A.2d at 1101 (citations omitted).
¶26 We find Grumet persuasive in resolving the instant case. The following facts are undisputed: (1) prior to September 17, 1996, the Quigleys were in default on the Acker/Baldwin contract; (2) on September 17,1996, the Quigleys tendered a personal, uncertified check for the previous month’s payment to the escrow agent; (3) the escrow agent received the check; (4) the Ackers instructed the escrow agent to hold the check; (5) on September 21, 1996, the Quigleys received a Default Notice; (6) the Quigleys did not cure the default; (7) on November 2, 1996, the Quigleys received a Termination Notice informing them that the entire balance on the Acker/Baldwin contract had been accelerated; and (8) on November 6, 1996, the Ackers returned the Quigleys’ personal check to them.
¶27 Like the court in Grumet, we determine that the Ackers’ retention of the Quigleys’ personal, uncertified check was a taking for an underlying obligation and suspended that obligation. Section 30-3-310(2), MCA. This suspension lasted until November 6, 1996, when the Ackers dishonored the Quigleys’ check and returned it to them. Section 30-3-310(3), MCA. Because the obligation was suspended, there was, by definition, no default on the obligation during the period of suspension. Consequently, the Ackers’ Default and Termination Notices were based on an erroneous assessment of default and had no legal effect.
¶28 We hold that the District Court’s finding that the Ackers’ Default and Termination Notices were defective was supported by substantial evidence and, therefore, was not clearly erroneous. Further, we hold that the District Court’s conclusion that the Ackers’ Default and Termination Notices were defective was a correct interpretation of the law.
Issue 2
¶29 Did the District Court err in concluding that the Quigleys were entitled to relief from forfeiture under § 28-1-104, MCA?
¶30 The Ackers next argue that the District Court should have denied the Quigleys relief from forfeiture. The Ackers rely on Aveco Properties, Inc. v. Nicholson (1987), 229 Mont. 417, 421-22, 747 P.2d 1358, 1360-61, and cases cited therein, for the assertion that contracts for deed are distinct from trust indentures and mortgages in that contracts for deed do not allow redemptive rights for a party in default. The Ackers contend that in relieving the Quigleys from forfeiture, the District Court rewrote the Acker/Baldwin contract by inserting redemptive rights. The Ackers argue that the District Court erred in looking beyond the four corners of the Acker/Baldwin contract and creating a remedy for the Quigleys that was never contemplated by the parties.
¶31 The Ackers’ reliance on Aveco is misplaced. This Court has long recognized that equity abhors forfeitures. Yellowstone Co. v. Wight (1943), 115 Mont. 411, 418, 145 P.2d 516, 518. Montana’s anti-forfeiture statute, § 28-1-104, MCA, reflects this policy and authorizes a district court to relieve a party from forfeiture “in any case where he sets forth facts which appeal to the conscience of a court of equity.” Parrott v. Heller (1976), 171 Mont. 212, 214, 557 P.2d 819, 820 (citations omitted). Specifically, § 28-1-104, MCA, provides:
Relief from forfeiture. Whenever by the terms of an obligation a party thereto incurs a forfeiture or a loss in the nature of a forfeiture by reason of his failure to comply with its provisions, he may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, wilful, or fraudulent breach of duty.
In interpreting § 28-1-104, MCA, we have stated:
[Section 28-1-104, MCA] was enacted for the benefit of obligors whose failure to punctually perform would result in loss to them in the matters in respect to which they have contracted. ... The intention of the law under this statute is that a forfeiture should not be needlessly enforced.
Yellowstone Co., 115 Mont. at 417-18, 145 P.2d at 518.
¶32 Thus, although Aveco correctly states the law regarding interpretation of contractual obligations, it is not controlling in this case because § 28-1-104, MCA, clearly authorizes a court to relieve a party from forfeiture when the interests of fairness and equity so require. Simply put, “even though the parties agreed that forfeiture would result from [Quigleys’] default, this Court may, under appropriate circumstances, still grant equitable relief.” Glacier Park, 285 Mont. at _, 949 P.2d at 233.
¶33 The Ackers argue that even if this Court determines, as we have, that § 28-1-104, MCA, is applicable, the District Court still erred in granting the Quigleys relief from forfeiture because the Quigleys did not meet all the requirements of § 28-1-104, MCA. A party qualifies for relief from forfeiture under § 28-1-104, MCA, if he has tendered full compensation for his obligation; his default under the contract was not the result of a grossly negligent, willful, or fraudulent breach of duty; and he asserts facts which appeal to the conscience of the court of equity. Glacier Park, 285 Mont. at _, 949 P.2d at 234.
¶34 It is undisputed that the Quigleys tendered full compensation for their obligation. The letter that accompanied the Quigleys’ $54,253.11 cashier’s check stated that the amount of the check represented the $49,728.00 accelerated balance due on the Acker/Baldwin contract; $2,378.44 in interest calculated at 9% from July 25, 1996 to February 4, 1997; $1946.67 in unpaid taxes with interest and penalties calculated to February 4,1997; and $200.00 in attorney fees. The only questions at issue then are whether the Quigleys’ default was due to a grossly negligent, willful, or fraudulent breach of duty, and whether the facts and circumstances of this case warrant equitable relief from forfeiture.
¶35 The Ackers contend that the Quigleys’ default was due to a grossly negligent, willful, or fraudulent breach of duty, and that the facts and circumstances of this case do not warrant relief from forfeiture. The Ackers cite Kovacich v. Metals Bank & Trust Co. (1961), 139 Mont. 449, 451-52, 365 P.2d 639, 640, for the rule that a mere inability to pay is not sufficient to appeal to the conscience of a court of equity and relieve a party from forfeiture. In Kovacich, we held that buyers of a mobile home who had defaulted on the sales contract, and who were unable to make further payments due to an employment strike, were not entitled to relief from forfeiture. Kovacich, 139 Mont. at 451-52, 365 P.2d at 640-41. The Ackers argue that Kovacich directly applies to the instant case, and that the Quigleys’ inability to make the August 1996 payment on time is insufficient to invoke equitable relief from forfeiture.
¶36 We reject the Ackers’ argument because Kovacich is distinguishable from the instant case. The instant case is not a case of “mere” inability to pay. The Quigleys took affirmative steps to cure their default and eventually tendered full compensation for their obligation. The Quigleys tried to collect accounts receivable from their California construction business, they applied for loans, and they attempted to sell Section 19 to Sherry Nicholas. Within six months, the Quigleys tendered full compensation to the Ackers. In contrast, the Kovaciches took no affirmative steps to cure their default and failed to tender full compensation to the sellers.
¶37 This Court considers several factors in determining whether a party’s default was the result of a grossly negligent, willful, or fraudulent breach of duty. These factors include: (1) whether the party experienced financial setbacks beyond his control; (2) whether the party made good faith efforts to raise money to pay the accelerated balance; and (3) whether the party tendered full compensation of the accelerated balance within a reasonable time. Parrott, 171 Mont. at 215, 557 P.2d at 820-21. See also Yellowstone Co., 115 Mont. at 416-17, 145 P.2d at 517-18; Sharp v. Holthusen (1980), 189 Mont. 469, 473-75, 616 P.2d 374, 377-78. In Parrott, we granted equitable relief from forfeiture to buyers in default on a real estate contract based on the following considerations: (1) the buyers suffered a financial set back due to crop failure and an inability to collect from their debtors; (2) the buyers attempted to secure a loan but were unsuccessful due to a judgment lien that had been filed against their property; (3) the buyers secured employment outside of their farming operation to help make the accelerated payment; and (4) the buyers made the accelerated payment within nine months of their default. Parrott, 171 Mont. at 215, 557 P.2d at 820-21.
¶38 Another important factor in our determination is whether the party made significant improvements and paid a significant amount of the principal before default such that a forfeiture would result in the seller’s unjust enrichment. Roberts v. Morin (1982), 198 Mont. 233, 241, 645 P.2d 423, 428. In Roberts, we noted that if forfeiture were imposed, the seller would receive the property, not at its 1974 value of $9,500, but at its greatly increased 1982 value of $23,000. The seller would also receive the benefit of improvements valued at $4981. This factor, coupled with other factors mitigating against forfeiture, led us to conclude that the buyer was entitled to relief from forfeiture. Roberts, 198 Mont. at 241, 645 P.2d at 428. See also Sharp, 189 Mont. at 473-75, 616 P.2d at 377-78; Blakely v. Kelstrup (1994), 267 Mont. 274, 278, 883 P.2d 814, 817.
¶39 In the instant case, it is evident from the District Court’s Findings of Fact and Conclusions of Law that the court considered these factors in granting relief from forfeiture to the Quigleys. The court found that the Quigleys suffered a financial setback due to circumstances beyond their control, that the Quigleys made good faith efforts to raise money to pay the accelerated balance, that the Quigleys tendered full compensation of the accelerated balance within a reasonable time, and that a forfeiture would result in unjust enrichment, or a “windfall,” to the Ackers. The Ackers have not submitted, nor have we found, any facts in the record at variance with the court’s findings. The Ackers only dispute the court’s discretionary finding that forfeiture of the Acker/Baldwin contract would be inequitable because it allows the Ackers a windfall. The Ackers counter that it is just as inequitable to grant the Quigleys relief from forfeiture because it allows them a windfall. However, the Ackers have provided no facts, analysis, or case law in support of their position. The record clearly shows that upon forfeiture, the Ackers would keep more than $300,000 in principal payments plus interest, would have the Quigleys’ $20,000 in improvements, and would retain Section 19 valued at nearly double the amount of the Ackers original sale price. We determine that sufficient evidence exists in the record to support the District Court’s finding that a forfeiture of the Acker/Baldwin contract would result in unjust enrichment to the Ackers.
¶40 The facts of this case warrant application of § 28-1-104, MCA. Therefore, we hold that the District Court did not err in granting the Quigleys relief from forfeiture.
Issue 3
¶41 Did the District Court err in ordering the parties to pay their own attorney fees and costs?
¶42 In their cross-appeal, the Quigleys claim the District Court erred in not awarding them attorney fees and costs. Section 25-10-301, MCA, provides:
Determining compensation of attorneys. The measure and mode of compensation of attorneys and counselors at law is left to agreement, express or implied, of the parties .... But parties to actions or proceedings are entitled to costs and disbursements as provided by law.
¶43 With respect to attorney fees, the Quigleys and Ackers expressly agreed in paragraph XVII of the Acker/Baldwin contract that “[i]f litigation occurs concerning the rights of any party in this agreement, the successful party shall recover reasonable attorney fees ....” Section 28-3-401, MCA, provides that if the language of a written agreement is clear and does not involve an absurdity, the language governs the interpretation of the agreement. Also, we have held that where the language of a contract is clear and unambiguous, it is the trial court’s duty to enforce the contract as written. Wortman v. Griff (1982), 200 Mont. 528, 536, 651 P.2d 998, 1002. The language of paragraph XVII of the Acker/Baldwin contract is clear and unambiguous, and does not involve an absurdity. Therefore, it was error for the District Court not to have enforced the provision as written and awarded attorney fees to the Quigleys.
¶44 With respect to court costs, Section 25-10-101(5), MCA, provides that costs are allowed as a matter of course to a successful plaintiff in an action involving “the title or possession or right of possession of real estate ....” The Quigleys have met the requirements of this statute. This case clearly involves title or possession of real estate, and the Quigleys received judgment in their favor. Upon these facts, the District Court erred in not awarding the Quigleys their costs of suit.
¶45 We therefore reverse and remand for determination of attorney fees and costs incurred, and for further proceedings consistent with this opinion.
Issue 4
¶46 Are the Quigleys entitled to attorney fees and costs on appeal?
¶47 The Quigleys request that they be awarded attorney fees and costs on appeal. Costs on appeal in civil actions are automatically awarded to the prevailing party under Rule 33, M.R.App.P. Additionally, we previously have held that where an award of attorney fees is based on a contract, the prevailing party is also entitled to an award of reasonable attorney fees incurred on appeal. Smith v. Johnson (1990), 245 Mont. 137, 145, 798 P.2d 106, 111 (citing Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200). Because the Quigleys are the prevailing party on appeal, we hold that they are entitled to reasonable attorney fees and costs incurred in this appeal.
¶48 We affirm in part, reverse in part, and remand to the District Court for determination and award of the Quigleys’ attorney fees and costs, both below and on appeal.
JUSTICES GRAY, NELSON, REGNIER and TRIEWEILER concur.
|
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PER CURIAM.
The petition of relatrix herein for a writ of prohibition against the above-named respondents, presented to the court this day, is after due consideration denied.
|
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MR. JUSTICE COOPER
delivered the opinion of the court.
In 1915 the legislative assembly enacted Chapter 31 (Laws 1915, p. 45), amendatory of sections 2503-2505 of the Revised Codes, relating to the assessment of real estate owned by banks, national and state, and shares of stock of such institutions. Section 1 of the Act provides: “All shares of stock in state and national banks and banking corporations, whether of issue or note [not?], existing by authority of the United States or of this state, and located within this state, and doing business within the state shall be assessed to the owners thereof; * * * all such shares must be listed and assessed with regard to their value at 12 o’clock noon, on the first Monday of March of each year, to be ascertained by adding the surplus and undivided profits to the face value of such shares, provided, that if any portion of the capital stock of any bank or banking corporation herein named, shall be invested in real estate and such bank or banking corporation shall hold title thereto, the assessed valuation of such real estate shall be deducted from the total value of the shares of stock of such bank' or banking corporation * * * and such real estate shall be assessed to the bank or banking corporation holding the same, as other real estate. The persons or corporations who appear upon the records of the bank or banking corporation herein named, to be the owners of shares at the close of the business day next preceding the first Monday in March in each year, shall be taken and deemed to be the owners thereof for the purpose of this section. Such shares of stock shall not be assessed at any higher rate than other property and shall be' subject to all deductions allowed or given in the assessment of other property.”
Section 2 provides that the bank shall pay the assessment upon the shares above mentioned, and that for convenience their assessment shall be entered on the personal property list in the name of the bank.
• Section 3 prescribes the duties of bank officers, requiring them to furnish to the assessor certain information with relation to the capital stock, surplus, etc., of the bank.
Pursuing the provisions of the Act, the assessor of Cascade county assessed the shares of the capital stock of the First National Bank of Great Falls more particularly described below. Tbp bank refused to abide by the assessment and a suit was instituted by the treasurer of the county against the bank to have determined the rights of the parties. The matter was submitted to tbe court on an agreed statement of facts, tbe more salient features of which may be briefly epitomized thus:
It is agreed that the cashier of defendant bank delivered to the assessor the statement required by section 2 of the Act, including the face value of the bank’s capital stock ($200,000), the amount of surplus ($150,000), and undivided profits ($35,161.90), making a total of all three items of $385,161.90; that $344,358.98 of this amount was represented by and invested in real estate owned by the bank and situate in Montana, upon all of which the taxes have been duly paid by the bank; that the real estate owned by it in Cascade county was for the year 1917 assessed by the assessor and valued for assessment at the sum of $229,730 ; that the assessor, acting under the provisions of section 1 of the statute above, deducted from the total of capital stock, surplus, and undivided profits amounting to $385,161.90 the sum of $229,730, the assessed valuation placed by him upon the bank’s real estate located in Cascade county, and thus ascertained that there remained the sum of $155,431.90, not represented by real estate and taxable to the stockholders of the bank as provided by the statute, and assessed such amount at seventy-five cents upon the dollar, making a total of $116,575 ; that agreeably to a ruling of the state board of equalization that all bank stock should be assessed at sixty-five cents upon the dollar the sum last above mentioned was reduced to $101,030, at which amount the shares were assessed, the tax levied amounting to $3,705. It was further agreed that if the contention of the bank should be sustained, i. e., that the assessor should have deducted from the total of capital stock, surplus and undivided profits, $385,161.90, the amount invested in real estate owned by it, to-wit, $344,358.98, there would have remained $40,902.92 assessable to the stockholders, which, assessed at sixty-five cents upon the dollar (agreed to be the true valuation for present purposes), would have been of the assessable value of $26,586.89 only, and that the legal tax on that amount for the year in question would have been but $975 instead of $3,705.26, which, sum of $975 was tendered and paid into court by the bank.
The district court found in favor of the defendant’s contention and entered judgment accordingly. The county treasurer has appealed.
The trial court in its preface to the “conclusions of law” stated the point at issue in these words: “The only question presented by the facts in this case is whether the actual amount of real estate investments or the assessed value of the real estate of the defendant should be deducted from the aggregate of the capital, surplus and undivided profits in ascertaining the value of the shares of the capital stock of the defendant for taxation, section 1 of Chapter 31 above providing that ‘the assessed valuation of such real estate shall be deducted from the total value of the shares of stock,’ etc.” The court concluded: “That the assessment of the stock of the defendant * * * is illegal and void, * * and that $975 was the total amount of legal assessment that could be levied and assessed against the stockholders of the bank.” This in effect means that, inasmuch as the assessor’s action in assessing the property in question as he did was in substantial compliance with the provisions of Chapter 31, the statute itself is as illegal and void as the assessment, and that if we uphold the judgment, the Act must of necessity be declared unconstitutional.
Section 1 of Article XII of the state Constitution reads thus: ‘ ‘ The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this Article.”
Section 17 of the same Article is as follows: “The word property as used in this Article is hereby declared to include moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership, but this shall not be construed so as to authorize the taxa tion of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the state and has been taxed.”
“All taxable property must be assessed at its full cash value,” says section 2502 of the Revised Codes, and stocks of banks, national or state, fall within the definition of “property” given in section 17 of Article XII above, and must be assessed at their full cash, not assessed, value, except to the extent that they are represented by real estate otherwise taxed. In Daly Bank etc. Co. v. Board of Commrs., 33 Mont. 101, 81 Pac. 950, this court said, referring to section 17, supra: “As that section of the Constitution is in the nature of a prohibition, it is so far self-executing as to prohibit the assessment upon the stocks of a bank or trust company of any greater valuation than the full cash value of such stocks, less the amount of the property representing that stock, which is assessed to the bank or trust company. ’ ’
With the doctrine there enunciated, we are in full accord; and we affirm that the principles there laid down apply with equal force to national banks doing business- within this state. The framers of our Constitution in the matter of providing the necessary revenues for the support of the state, directed the legislatures to come thereafter to levy a uniform rate of assessment and taxation under such regulations as would secure a just valuation for taxation of all property. (Sec. 1, Art. XII.) And then, with prophetic vision, and in the exercise of a wise precaution against inequality of taxation, in language of plainest import, they defined the word “property” to include moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership. This important work they did not leave to other hands. And then, to make “assurance double sure” that property once fairly and legally assessed should be immune from again being taxed, they used these plain and unmistakable words: ‘ ‘ This shall not be construed so as to authorize the taxation of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the state and has been taxed.” Mark the words, “and has been taxed”!
On the record before us, then, the ultimate question to be resolved is whether the method prescribed by the legislature for ascertaining the value of the shares of stock for taxation purposes is not in conflict with the provisions of section 17 of Article XII above which prescribe a different method; and whether such requirement does not also do violence to the provisions of section 5219 of the federal statutes (U. S. Rev. Stats. [U. S. Comp. Stats., sec. 9784]), by which a state is limited and circumscribed in the taxation of national banks to the extent that it shall not be “at a -greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.” (First Nat. Bank of San Francisco v. San Francisco, 129 Cal. 96, 61 Pac. 778.)
In our opinion, the language of Article XII above is unmistakable. The method therein specified for ascertaining the value of the shares of stock is by deducting from the cash value of the shares the amount invested in real estate within the state which has been taxed. (First Nat. Bank of Albia v. City Council, 86 Iowa, 28, 52 N. W. 334.) This mode the court below recognized and applied.
It is settled law that a state can impose such a tax only upon a national bank as is authorized by the federal law. Such banks derive their authority to do business in the state from the federal government, and by virtue of federal laws, which are supreme. A state can tax the real estate of a national bank the same as other real estate is taxed, because authority to do so is expressly given by the Act of Congress above referred to. Beyond that it cannot go. That is the measure of its authority. “By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void.” (Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 43 L. Ed. 850, 19 Sup. Ct. Rep. 537. See, also, Third Nat. Bank v. Stone, 174 U. S. 432, 43 L. Ed. 1035, 19 Sup. Ct. Rep. 759; Rosenblatt v. Johnson, 104 U. S. 462, 26 L. Ed. 832; First Nat. Bank v. San Francisco, 129 Cal. 96, 61 Pac. 778.)
The statute in question, then, in so far as it conflicts with the views herein expressed, must be declared a nullity, because its requirements are repugnant to both the letter and the spirit of the constitutional declarations above referred to. From this there is no escape. The result obtained by the assessor in following its specific requirements is itself conclusive against the legality of the assessment and the life of the statute. The provisions of the Constitution are mandatory, and in this instance required that the total amount invested in real estate within the state be deducted from the total of the capital stock, surplus and undivided profits. But notwithstanding this fact, the assessor, acting pursuant to the statute, increased the assessed value of the shares of stock from $40,902.92 to $155,431.90. To our minds, the infirmity of a statute could not be more clearly demonstrated nor could its intent be more palpably at variance with the spirit of the Constitution. Thus the statute is made to work out its own destruction and it cannot stand against constitutional safeguards such as these. The people have a right to the Constitution of their adoption and to have all its provisions enforced; and it is the duty of the courts, imperative and unshunnable, to give to its mandates vitality and force.
The judgment is therefore affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
Suit by William Walsh to quiet title to the Peosta quartz lode, situate in Broadwater County, Montana. He claims exclusive ownership based upon discovery and location 'made July 10, 1914, followed by an appropriate marking of the boundaries and a due filing of the requisite certificate. The answer of the defendants asserts prior valid locations of the same ground under the title of Sidewiper by Harry Keinschmidt, Albert R. Kleinschmidt and the plaintiff on June 6 and July 2; the interests of the said Kleinsehmidts being thereafter and before the commencement of this action transferred to the defendant Ellen Kleinschmidt. The reply admits an attempted location of said ground as the Sidewiper on June 4, 1914, but alleges failure to mark the boundaries or make the recordation required by law; it also denies that the second Sidewiper location was made until August 2, 1914, or that it was followed by the requisite excavation or by the necessary filing. The findings of the jury material to this appeal were: (1) That the boundaries of the original Sidewiper located June 4. 1914, were marked within thirty days thereafter; (2) that the second notice of location of the Sidewiper was posted on July 2, 1914; (4) that plaintiff consented to the second location of the Sidewiper; (7) that the Kleinschmidts. did not on July 8 tell plaintiff they had abandoned the Sidewiper claim and would have nothing to do with it; (8) that the Kleinschmidts consented to plaintiff’s location of the Peosta for himself; (9) that such consent was upon the condition that they should have a one-fourth interest in the claim and a right of tunnel site. The court adopted these findings, and further found that Harry and Albert R. Kleinschmidt had assigned all their right, title and interest to Ellen Kleinschmidt. From these findings it was deduced as conclusions of law that by the first location of the Sidewiper on June 4 the land was withdrawn from entry, and the location of the Peosta was void “even though the locators of the Sidewiper did not complete their work in discovery shaft within the sixty days.” By the decree it was adjudged that the plaintiff “has no right, title, or interest in and to the premises * * * under and by virtue of the attempted location of the Peosta.” From this judgment, as also from an order denying him a new trial, the plaintiff has appealed.
If we accept as controlling the theory assigned in the conclusions of law, it is perfectly clear that the judgment cannot be affirmed; for it is certainly not correct to say that a prior location which subsequently fails so absolutely withdraws the land from entry as to defeat a junior location of the same ground otherwise valid; quite the contrary was the holding of "this court in Helena Gold & Iron Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455. Reverting, however, to the facts found in order that we may either uphold the judgment or otherwise finally determine the case — and we say without further elaboration that these findings are supported by sufficient evidence — we are met by this situation: The Peosta was located after the second Sidewiper location, but by consent of the Kleinschmidts on certain conditions. This was tantamount to an agreement by the Kleinschmidts to abandon the claim or yield precedence to the appellant; hence it cannot be said that the Peosta was void because of conflict with the second Sidewiper location, assuming the latter to have been followed by proper recordation. But such abandonment or yielding was upon condition, accepted by the appellant, to-wit, that he should charge the Peosta with a one-fourth interest and a tunnel site in favor of the Kleinschmidts, and the claim stands charged accordingly.
Counsel say that this is beside the present case and is a matter cognizable only in another action. We think otherwise. The controversy is in equity; all of it is before the court, and even though this feature was not elaborated in the pleading's, it was shadowed forth therein, was injected into the case at the outset by the appellant himself, evidence of it was presented, and the matter was permitted to go to a submission as though it were a defined issue in the case. The pleadings will therefore be considered as amended to conform to this proof; and the findings will be accepted as stating the established facts. Under these facts the decree should have been to recognize the Peosta as a valid location, but to decree that Ellen Kleinschmidt, as assignee of Harry and Albert K. Kleinschmidt, has an interest therein, to-wit, a one-fourth interest and the right of tunnel site.
The cause is therefore remanded, with directions to modify the decree accordingly. Each side will pay its own costs of appeal.
Modified.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
Certiorari to the district court of Fergus county. The record discloses that on November 13, 1918, the relator brought his action against the defendant, who had left the state and become a resident of the state of Kentucky, to obtain a decree of divorce on the ground of desertion. Instead of service of summons by publication under section 6520 of the Revised Codes, personal service was had upon the defendant, as provided in section 6521. The proof of service was made by affidavit, which, omitting formal parts, is the following:
“W. H. Myers, being first duly sworn, says': That I received the within summons on the 18th day of November, 1918, that I personally served the within summons on the 19th day of November, 1918, upon Myrtle D. Smith, the defendant named therein, by delivering a copy of said summons to her personally in the said county of Warren. That at the time when I served the within summons upon the said Myrtle D. Smith, and at the same place, I also served upon her a copy of the complaint upon which said summons was issued, by delivering said copy to her personally.
“W. H. Myers, D. S.”
Defendant having failed to appear in the action, her default was entered on December 31. On January 7 of this year, the court, Hon. Roy E. Ayers presiding, heard the evidence submitted by plaintiff, made its findings of fact and conclusions of law, and rendered and signed a decree granting him a divorce. On the same day, before the decree was entered and without notice to counsel, the court of its own motion amended its order granting the decree. The amended order is as follows: “This cause came on regularly to be heard this day, Mr. E. G. Worden appearing as counsel for plaintiff, defendant not appearing. The court now heard the proofs offered, the testimony of William G. Smith who was now duly sworn and examined on behalf of plaintiff, and the court being fully advised in the premises, thereupon it was ordered, adjudged and decreed that plaintiff have decree of divorce. It having come to the knowledge of the court, ex parte, that the court was without jurisdiction to grant the decree above ordered, for the reason that the plaintiff had not been deserted by the defendant for more than one year prior to his filing a complaint herein, praying for divorce on the ground of desertion, and the court being satisfied upon such information that further proof is necessary in the said case, it is hereby ordered that the said decree heretofore on this day made and signed in the ease be, and the same is hereby, ordered stricken from the files and records of the case and the ease is continued for further hearing and evidence. And it is further ordered that the plaintiff and his counsel be notified of this order.” The plaintiff then instituted this proceeding to have the order annulled, in so far as it directed the decree to be stricken from the files and records of the ease and a further hearing to be had.
It will be observed that the court in amending the original order did not formally set it aside or vacate the decree, but the effect of the amendment was to annul all former proceedings and leave the case in the condition in which it stood before the trial. In other words, by making the amendment to the order, the court in effect, on its own motion, awarded a new trial on the ground of newly discovered evidence; for notwithstanding the order recites that the court was without jurisdiction to grant the decree, the recital, “it having come to the knowledge of the court, ex parte, that the court was without jurisdiction * * * , for the reason that the plaintiff had not been deserted by the defendant for more than one year,” etc., means nothing more nor less than that evidence had come to the knowledge of the court other than that submitted at the hearing. Hence its conclusion that its finding in this regard on the evidence submitted ought to have been other than that made.
This court pointed out in the early cases of Whitbeck v. Montana Cent. Ry. Co., 21 Mont. 102, 52 Pac. 1098, and Ogle v. Potter, 24 Mont. 501, 62 Pac. 920, that in this state relief by way of new trial can be granted only in the manner, within the time and upon the grounds provided in the statute, and that in the absence of observance by the moving party of the required steps, the court has no power to grant a new trial. The conclusion announced in these cases has been since adhered to. (Porter v. Industrial Printing Co., 26 Mont. 170, 66 Pac. 839, 67 Pac. 67; State ex rel. Walkerville v. District Court, 29 Mont. 176, 74 Pac. 414.) A necessary result of this rule is that a court has no power to grant a new trial of its own motion. It may amend its judgments in order to make them express what was actually decided. This may be done at any time, though the particular judgment has been entered by the clerk. A mistake by this officer in making the entry does not bind the court nor will it be permitted to prejudice rights of parties. But when the court has once rendered its judgment as intended, though it may be erroneous, it becomes final and must stand until it has been revised and corrected by some method pointed out by the statute — generally through a motion for a new trial made by the losing party in the ordinary way, or on appeal. (Whitbeck v. Montana Cent. Ry. Co., supra; State ex rel. McHatton v. District Court, ante, p. 324, 176 Pac. 608.)
There may be a question whether the foregoing rule applies in those districts in which there are regularly fixed terms for holding court. Under the rule observed by the English courts and by the courts of those states in which the common-law practice prevails, a judgment rendered during the term may be revised at any time before the end of the term, because until that time the record had not been finally made up and is in the plenary control of the judge (23 Cyc. 860). But we are not now concerned with this question. This case arose in a county which is a district in itself, as did the two cases last cited supra, and, as was pointed out in Whitheck v. Montana Cent. Ry. Co., the common-law rule has no application.
Counsel for the respondents did not favor this court with a brief but made an oral argument at the hearing. He insisted that though the district court was in error in vacating the judgment for the reason stated in its order, the order should nevertheless be affirmed because upon the face of the-record the judgment if! void, in that it appears that the proof of service of summons was insufficient to give the court jurisdiction of the defendant, and in that the affidavit required by section 4(a) of the Act of the Extraordinary Session of the Fifteenth Legislative Assembly (Chap. 8, Laws Extra. Session, 15th Legislative Assembly, p. 17), showing that the defendant was not in military service, was not filed before judgment was rendered. If we admit counsel’s premises, the conclusions he draws from them necessarily follow. A judgment void on its face is a mere nullity and serves no purpose other than to encumber the court’s records. It may be vacated at any time (1 Freeman on Judgments, sec. 98; 1 Black on Judgments, see. 307; 23 Cyc. 913; People v. Greene, 74 Cal. 400, 5 Am. St. Rep. 448, 16 Pac. 197; Olney v. Harvey, 50 Ill. 453, 99 Am. Dec. 530.) The [8] particular respect in which it was urged that the proof of service was insufficient, was that the affidavit of Myers does not contain the statement that he was not a party to the action, and that he was over the age of eighteen years. By reference to the statute declaring how proof of service must be made (Rev. Codes, sec. 6518), we observe that it does not require the affidavit to state the facts showing the competency of the person making the service. It merely requires the affidavit to show service of the summons and a copy of the complaint when service of the latter is required. The affidavit here shows a literal compliance with this requirement. The omission of the statement showing the competency of Myers at best only constitutes an irregularity, rendering the judgment voidable and not void. It is therefore valid as against collateral attack. ■Such would have been the result if the service had been made in this state (Burke v. Inter-State S. & L. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879) ; and since it was not questioned by counsel that the order for publication had been regularly made as provided in section 6520 of the Revised Codes, and since personal service outside the state thereafter is made the equivalent of service by publication by section 6521 (McLean v. Moran, 38 Mont. 298), there is no valid reason why the result should not be the same here. In Burke v. Inter-State S. & L. Assn., supra, the attack upon the judgment was collateral, by objection to the introduction of it as evidence. The proof of service was the same as in this ease. This court held that the service, though irregular, was nevertheless service sufficient to give the court jurisdiction, rendering the judgment voidable only and not subject to collateral attack. Here attack is made upon the judgment by objection to the sufficiency of the proof of service of summons only, by way of argument in this court. We think the judgment not open to attack in this way, nor otherwise except by appeal or by proper application to the trial court.
Nor do we think the omission to file the affidavit required by the statute cited, showing that the defendant was not at the time in military service, renders the judgment void. If it be assumed that the definition of the expression “persons in military service,” found in section 2 of the Act, included the defendant, the failure to file the affidavit did not affect the jurisdiction of the court to render the judgment and order it entered. Section 4(a) declares: “That in any action or proceeding commenced in any court, if there shall be a default of an appearance by the defendant, the plaintiff before entering judgment, shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit, plaintiff shall, in lieu thereof, file an affidavit setting forth that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest and the court shall, on application, make such appointment.” Then follow provisions to the effect that unless it appears that the defendant is not in military service, the court may require as a condition before judgment is entered that the plaintiff file a bond to indemnify him against any loss or damage that he may suffer by reason of the judgment. The court is also authorized to make any other order, or to enter such a judgment as in its opinion may be necessary to protect the defendant. These are all the provisions in the Act on this subject. A mere reading of them makes it clear that they have to do only with the entry of judgments in order to render them enforceable, and not the rendition of judgments. In other words, their purpose is to delay the entry of judgment in any case when there has been a default, until the court has taken such measures and made such requirements of the plaintiff as will furnish the defendant with all necessary protection against the enforcement of a judgment which may injuriously affect him or his interests while he is absent in military service. The filing of the affidavit does not affect the power of the court to render judgment, nor would the omission to file it affect the judgment after entry or be more than an irregularity within jurisdiction.
The order is annulled.
Order a/n/mlled.
Mr. Justice Holloway and Mr. Justice Cooper concur.
|
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] |
PER CURIAM.
— Pursuant to the motion of respondent herein, and for good cause shown, the appeal in the above-entitled action is hereby dismissed.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In May, 1908, Bjorneby Bros., respondents herein, by an agreement in writing became the representatives of the Minneapolis Threshing Machine Company for the sale of its farm machinery in Flathead county. The contract provided that sales should be made at prices fixed by the company and that the commission to the agents should be computed upon that basis. This action was brought to recover commissions alleged to be due plaintiffs on account of the sale of a threshing outfit, including stacker, to one Clark Meade.
-It is alleged that the list price of the machinery was originally $4,005.80, but that by" directions of the company, it was sold to Meade for $3,041.85, and that the defendant has refused to pay the commission or any part of it. The answer contains certain admissions and denials, not now material, and an affirmative defense to the effect that plaintiffs and defendant had stated an account between them and had mutually agreed that there was not anything due from defendant to plaintiffs as commissions on the Meade sale. The allegations of this affirmative defense were put in issue by reply, and a trial of the cause resulted in a judgment in favor of plaintiffs for $963.95, interest and costs, from which judgment defendant appealed.
We deem it unnecessary to consider appellant’s specifications of error in detail. The real questions in issue arise over the proper construction of the agency contract, in view of certain correspondence between the parties, and the force or effect of a so-called settlement agreement, Exhibit “B.”
There is not any conflict in the evidence. The negotiations with Meade were initiated by the company through Wood, its Spokane agent. Different terms had been under consideration, but a proposal in the form of an order had been submitted to the company for approval or rejection. By the terms of this proposal, Meade was to turn over to the company a second-hand engine, give his notes for sums aggregating $2,650, and pay the freight on the machinery he was to purchase. It was while this proposition was before the company that the business was first called to the attention of plaintiffs, in a letter from the company to them dated August 5, 1908. By that letter the company disclosed the terms of the proposed sale, but indicated its intention to decline to fill the order because of the insufficiency of the security. Plaintiffs were directed to see Meade and inform him that, if he would execute a real estate mortgage as additional security, the proposition would be considered; otherwise, it would not be. The letter concluded: “If you can get the thing fixed up with him, let us know right away, and we can fill the order promptly, as we have the goods ready to ship.” In compliance with the directions given, plaintiffs obtained the order upon the terms already mentioned, but with the additional security required, and this order was accepted by the company and the machinery shipped and delivered. On August 13 the company in a letter to plaintiffs acknowledged the receipt of the Meade notes and securities, and inclosed “settlement sheets” in duplicate, one of which was signed by plaintiffs and returned to the company. On the debit side of this sheet the machinery sold to Meade is listed at $4,005.80. On the credit side are enumerated the Meade notes for $2,650, and the further items as follows:
1 14 H. Port Huron engine net.......................391.85
Commission 25 per cent on $3,755.80..................938.95
Commission 10 per cent on 250.00..................... 25.00
The account was thus balanced, the total on each side being $4,005.80. The sheet concluded with these recitals:
“Upon receipt of settlement as above, there will be due dealer, as per terms of contract commission certificates.............0
‘ ‘ Com. to be paid when old engine is resold and Co. gets their net out of it.
“This settlement is correct, there are no claims for shortage, etc.”
Notwithstanding plaintiffs were the procuring cause of the sale and had performed their services under the direction of the company, it is now insisted that, by signing this sheet, an account was stated, whereby plaintiffs agreed that they should not receive any compensation for their labor. In support of our conclusion that an account was not stated, we quote the following from the opinion of this court in Voight v. Brooks, 19 Mont. 374, 48 Pac. 549: “An ‘account stated’ means a balance ascertained between the parties to a settlement, and, where plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled and a balance struck, the law implies a promise to pay that balance. (Watkins v. Ford, 69 Mich. 357, 37 N. W. 300.) It is strictly evidence of the admission of a debt; it is the acknowledgment of the existing condition of liability between the parties. ‘From an account stated the law implies a promise to pay whatever balance is thus acknowledged to be due.’ ”
In the letter accompanying the sheet the company wrote: “You will notice we are not figuring any commission due you at this time.” While on the sheet, which was a printed form, was written: “Commission to be paid when old engine is resold and company gets their net out of it. ’ ’ When it- is recalled that plaintiffs’ commission was fixed by the agency contract, it cannot be said that, by terms so indefinite and uncertain as those employed in this settlement sheet, plaintiffs agreed that nothing whatever should be paid them for effecting the Meade sale.
It is suggested that the company could not have intended to pay any commission on a sale at such a reduced price, otherwise it would have suffered a distinct loss. The sale price, $3,041.85, is exactly the net amount which the company would have received if the sale had been for $4,005.80 and commissions had been paid according to the terms of the contract. The force of the suggestion is destroyed by the record made by the company itself. In its letter to plaintiff dated August 11 it said: “You can tell Meade for us that he has got the cheapest and best outfit we ever sold in the state of Montana, but it is all right if he only makes good with it and we open the way for good trade, we will try to forget the loss that we are malting.” If it paid no commission, it could not suffer any loss, and it is only upon the theory that it contemplated the payment of commission in some amount that its statement is intelligible.
It is further insisted that plaintiffs cannot claim commission because they sold for less than the list price and extended the time of payment over a longer period than their contract authorized. The sale price and terms of payment, however, were not fixed by these plaintiffs, but by the defendant itself. Paragraph 10 of the agency contract provided: “The company reserves the right to change or abridge at any time the terms of sale or the factory list price of its machinery, repairs and supplies.” By directing plaintiffs to sell upon the terms and at the price stated, the company elected to exercise the right reserved to it, and for the purposes of the Meade transaction the longer terms became the contract terms, and $3,041.85 became the list price upon which commission should be calculated.
Neither is there any merit in the suggestion that plaintiffs cannot claim commission upon the amount represented by the value set upon the second-hand engine. That particular term of the sale was also imposed by the company. Plaintiffs had no choice in the matter, and as to them it represented so much money.
The agency agreement provides that commissions upon time sales shall be due only as the installments are paid to the company. One of Meade’s notes for $600 had not been paid when this action was commenced, and plaintiffs are not entitled to commission on that amount until it is paid.
The sale price of the stacker was $225, and of the thresher proper, $2,816.85. Upon the former, the commission provided by paragraph 11 of the contract is $25, and upon the latter (after deducting $600 for the unpaid note) the commission is 25 per cent or $554.21, making a total of $579.21, for which the verdict should have been returned and the amount upon which interest should have been computed.
The cause is remanded to the district court, with directions to’ modify the judgment accordingly, and, when so modified, it will stand affirmed. Each party will pay his costs of this appeal.
Mr. Chief Justice Brantly concurs.
Mr. Justice Pigott did not hear the argument and takes no part in the foregoing decision.
|
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] |
PER CURIAM.
Respondents’ motion to dismiss the appeal in the above-entitled cause is hereby granted and the appeal accordingly dismissed.
|
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] |
PER CURIAM.
This cause coming on for judgment and decision, it is now here ordered and adjudged by this court that a writ of supervisory control issue as prayed for, directing the district court of Chouteau county, and the Honorable John W. Tattan, judge thereof, to set aside the order made on Friday, January 10, 1919, revoking the order made on January 8, 1919, transferring the cause entitled Hazel Loundagin v. Herbert Buhl et al., to the district court of Cascade county for trial, and to enter an order retransferring said cause to Cascade county for trial. Costs herein to be taxed against respondents.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
Paul Schultz, a drayman of Miles City, was last seen alive between 8 and 9 o’clock in the evening of November 29, 1916. On the next morning at about 7 o’clock-he was found dead in his barn, the circumstances indicating murder. For this murder one George Van Laningham was apprehended, tried, convicted and sentenced to life imprisonment. From the judgment as well as from an order denying him a new trial he appeals, insisting upon a reversal because the evidence is insufficient and because of newly discovered evidence warranting a retrial of the case.
I. The coitus delicti is conceded, and properly so, we think. Schultz was killed by a series of blows upon the fore part of the head. His body was found just inside the door of the barn lying on its back. Under his head was a horse blanket which the night before had been hanging up in the corner of the barn. The horses were loose. The electric light bulb, which hung out of reach, and which was operated by a switch near the door, was broken, its glass scattered about the floor. The blows which killed Schultz could conceivably have been kicks from a horse, but the circumstances, positive and negative, are sufficient to sustain the view that they were of human origin and were delivered by someone lying in wait. To connect the appellant with the deed the evidence, in brief, was this: Schultz, though married, was living alone on the lot where his barn is situate. Iiis habits were notoriously regular, and among them was to turn on the water for his horses at approximately 9 o’clock. The customary sound made by this operation was heard by neighbors on the same pipe-line on the evening of November 29 at 9:05. Schultz was well known to the appellant, who went by the name of Jack Logan. The latter was in Schultz’s employ, staying at the family homestead, a road ranch twelve miles from town, where Schultz’s wife was living, and where she and the appellant maintained illicit relations. The appellant had twice made remarks of a threatening character about' Schultz. One of these was in connection with the trading off by Schultz of a gray horse called “Comet,” the-appellant saying that if this was done he would “fix the little Dutch son-of-a-bitch. ’ ’ The other was in connection with a break-down of a Ford machine belonging to Schultz, the appellant remarking in answer to Mrs. Schultz’s expressed fears of Paul’s wrath: “You needn’t mind being scared of Paul; the next time you see him you won’t be scared of him.” On November 29, about 9:30 in the morning, the appellant and Mrs. Schultz started on a search for horses. They circled a distance of not more than fifteen miles, the appellant riding a bay mare called “Weazel.” They stopped at Daly’s for noon, and went to Hopper’s, where they gathered two of their horses. On the way Hick, but some miles from the Schultz, place, they saw some horses a short distance off which they thought might be others they were after, but did not go to them. They returned to the ranch between 3 and 4 o’clock, the appellant still riding Weazel. Here the appellant changed to the gray horse Comet and left again, saying he would not be gone long, but would bring back the horses they had seen on the way over. He returned about 11 o’clock without any horses. To ride from the ranch to Milos City, be there as late as 9:30, and return to the ranch about 11 was entirely possible, and appellant’s subsequent efforts to account for his whereabouts during the period of his absence from the ranch were so unsatisfactory as to create the impression that he could not safely tell the truth. Among other things, he persisted, until confronted by irrefutable proof, in the assertion that he did not return with Mrs. Schultz to the ranch, but left her on the way over from Hopper’s to go after the horses they had seen, and that he had not mounted Comet at all on that day. He also induced Ray Wilson, a neighbor, to falsely say, for a time, that they had met near the Schultz ranch at about 8 o ’clock that night. At 6:30 in the evening of November 29 Schultz had in his possession a $10 gold certificate. No such certificate was found the next morning upon his body or among his effects. On December 1 the appellant met Mrs. Schultz in Miles City and asked her if she had gotten the $10 bill out of the stovepipe hole at the ranch-house. She did not know that such a bill was there, but she at once dispatched a messenger thither at a cost of $6, who found a $10 gold certificate at the place mentioned, returned with it, and gave it to Mrs. Schultz, who immediately changed it into silver. On the same day, at another time,, after she, but before he, had talked with the sheriff, he asked her what she had told the sheriff. She narrated what she had said, not word for word, but substantially. About two weeks after the murder the appellant left the state for his parents’ home in Missouri, taking with him the clothes and some trinkets belonging to Mrs. Schultz; and the next day Mrs. Schultz followed him there. While there the appellant told her at least twice that he had billed Paul Schultz, demanding that she give him $1,000 and certain property, else he would deliver himself up and say that she hired him to do it. On one of these occasions he told her that he had left town by the old (and less frequented) route, that he broke the light in Paul’s barn, and that when Paul came in to turn on the light he hit him. Frequently, commencing with the summer of 1916, the appellant and Mrs. Schultz had talked of her relations with Schultz, of Schultz’s unwillingness to free her and divide the property, and of the fact that upon appellant’s father’s place in Missouri there was a mortgage of $1,000 which appellant was anxious to lift. Mrs. Schultz and the appellant were both ar rested early in January, 1917. On the way back the appellant, responding to the questions of the officers, gave an admittedly false account of his doings and whereabouts on the afternoon and evening of November 29. Incarcerated in the county jail at Miles City, the appellant was given a cell mate named James Smith, who knew nothing of the facts or details of the murder, but who was directed to learn what he could from the appellant. They had several conversations, the substance of which Smith gives thus: “I accused him of the killing of Schultz, and he never denied it, but he never owned up to it. I accused him time and again for being such a cold-blooded murderer, but he never said he didn’t and he never said he did. Lots of stuff was said between us. We talked about the town that he was arrested in back in Missouri. He said he saw Lena Schultz in jail in Missouri. I asked him if he thought Lena would go against him, and he jumped out of the bunk, but didn’t say anything except that if Lena should prosecute him she would get herself into it. He told me that while she was in the county jail in Missouri she was lying on the floor crying, and he said there was a door with a crack in it, and he went up and said to her, ‘Ain’t you sorry now in giving this up?’ or ‘coughing this up?’ I asked him if she knew anything about the case, but he never told me. When I accused him of killing Paul Schultz, sometimes he would laugh, and sometimes he would go in his bunk and lay down, and at last he got awful restless, and I said, ‘When you knocked Schultz in the head why didn’t you cover him up?’ He said, ‘I did put a horse blanket under his head to keep the blood from running.on the floor.’ I asked him if he killed the old man why he did not kill the old lady, and he said, ‘It takes time to do that’; and I says, ‘You ought to take the time and put her away.’ Yes; Logan thought I was crazy; he believed I was off. ’ ’ Upon the trial it developed that the first statement given the authorities by the appellant concerning his whereabouts and doings on November 29 tallied with that given by Mrs. Schultz, and this was admittedly wrong and intended to mislead. It also tallied in a very important particular, as did his later statements, and his testimony, with what the witness Ray Wilson had told the authorities, but which Wilson pronounced on the stand to have been entirely false and agreed to beforehand. In his testimony the appellant was manifestly unwilling to either admit or deny certain of his previous statements, but stood upon the flat denial that he had killed Paul Schultz or had been in Miles City on the night of the murder and upon an explanation of his whereabouts and conduct which was inherently improbable. In short, the state made a prima facie case, and this was strengthened rather than refuted by the appellant himself, whose shifty and - unsatisfactory testimony as a witness in his own behalf is apparent even on the printed page.
It is quite true, as he now insists, that some explanation of contradictions and evasions is suggested by the fact that he was only nineteen years of age, and was confronted with the most serious charge to which anyone may be subjected; that the evidence against him comes from persons some of whom are not themselves above suspicion, some of whom, like Mrs. Schultz, had also made prior inconsistent statements, and some of whom are contradicted by other evidence, and that no motive adequate to a cautious and well-balanced mind was established. It will answer to say that all this was for the jury in the first' instance and for the trial judge upon the motion. They saw and heard the witnesses, and were best able to gauge the value of their testimony. We may, however, add these two suggestions: That no attack upon Mrs. Schultz or Ray Wilson can avail, for, upon the facts established, any complicity on their part is impossible save as accomplices of the appellant, and that the law does not require an adequate motive to be shown. (State v. Lucey, 24 Mont. 295, 61 Pac. 994.) Of motives it can be said that they are as various as are human characteristics, and what to us would seem trivial and of no impulsive force might conceivedly appeal to someone else with commanding power. From this point of view the record is not barren. The relations between the appellant and Mrs. Schultz or his expressed desire for money and property from her may be regarded as at least suggestive.
II. Motions for new trial because of newly discovered [3]evidence are not favored in the law, and in passing upon them the courts of this state are bound by the following rules: That the evidence must have come to the knowledge of the applicant since the trial; that failure to discover it sooner was not due to want of diligence; that it is so material that it would probably produce a different result upon another trial; that it is not cumulative merely — that is, does not speak as to facts in relation, to which there was evidence at the trial; that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; that the evidence must not be such as will tend only to impeach the character or credibility of a witness, and that it will likely be available upon another trial. (State v. Matkins, 45 Mont. 58, 68, 121 Pac. 881.) Viewed in the light of these rules, the order denying a new trial cannot be successfully assailed. The alleged newly discovered evidence is set forth in twenty-five affidavits, and the showing of diligence in the twenty-sixth. It is insisted that these affidavits establish or tend to establish the following propositions:
“ (1) That Lena Schultz did not learn from the defendant on the morning of December 1 that there was a $10 bill at the ranch, but that she knew and stated on the previous day, before the arrival of defendant in town, that she had such a bill there.
“ (2) That the defendant on December 23, 1916, at the Van Laningham place, near Novinger, Missouri, did not make any statements to Lena Schultz, or at all, in relation to the murder of her husband.
“(3) That the defendant did not walk with Lena Schultz from the Van Laningham place to the Pope place on January 5, 1917, or make any admissions or' statements to her on said date in relation to the murder.
“(4) That the state’s principal witness, Lena Holt, formerly Lena Schultz, before and after the trial made numerous statements at variance with her testimony.
“(5) That the witness James Smith admitted having committed a forgery, and agreed with the county attorney to plead guilty, and that after testifying against the defendant refused so to plead and was discharged without trial.
“(6) That Paul Schultz was not killed at 9:05 P. M., when he went to the bam to water and feed his horses, but some time later, when he started to the pump for a pail of water, and that his body was carried into the barn.
“(7) That the route from Miles City to the Schultz ranch via the west Yellowstone bridge and Siem ranch is three miles farther than the direct road, and that it would take two hours and fifteen minutes to make said trip.
“ (8) That in view of the testimony of Ike Davidson and of the witness Lena Holt as to the time the former arrived at the Schultz ranch-house on the evening of the murder, and the affidavits of Adolphine Schultz and George Kircher, it would have been a physical impossibility for the defendant to have committed the murder and to have admitted Davidson on his arrival at the Schultz ranch.”
To these we may add:
(9) That during the trial Lena Schultz was overheard by Mr. and Mrs. Tiemans to say to her present husband, the witness Amos Holt, “We will swear him so damned far into hell that he will never bother us,” Holt answering, “Just leave it to me,” and also that Lena Schultz herself was heard on another occasion to say that she was indebted to Ray Wilson in the sum of $500.
Propositions 2 and 3, with the affidavits supporting the same, may be dismissed at once as presenting matters purely cumulative. A clear-cut issue of fact was made upon the trial as to whether the incidents referred to occurred, and the alleged details thereof, pro and con, were gone into by deposition of some of the very persons who make the present affidavits.
Proposition No. 1 was likewise an issue of fact at the trial. It is based upon affidavits from residents of Miles City, one of whom was a witness whose testimony justified examination along the very lines here developed. The others were within the range of a diligent investigation before the trial, and no satisfactory showing is made for the failure to have their testimony.
Proposition No. 4 adds nothing new to the case whatever, unless it be the alleged declaration of Lena Schultz after the trial “that they had got the wrong man.” This she denies in her counter-affidavit, and the circumstances given in connection with the alleged statement are such that we cannot impute abuse of discretion to the court for accepting her version of what took place.
We are at a loss to appreciate the value of proposition 5. That Smith was in jail on a felony charge was known at the trial. That he was made a cell mate of the appellant in order to get information was also acknowledged. What is now urged merely goes to his credibility, and all the considerations which might affect the credibility of a man in his situation were canvassed before the jury.
Proposition 6 is very important, if true, but the fact stated, to-wit, that Paul Schultz’s pail was found in the alley between his house and the pump, is too slender a predicate for the proposition, even if it be conceded, as stated by the deponent, that Schultz’s habit was to draw a pail of water the last thing before going to bed at night.' It assumes that the pail could have gotten where it was found in no way except that Paul dropped it there as he was struck down in the alley, which is by no means certain, and it leaves out of account the facts that no drops of blood, no signs of a struggle, no impression of a fallen body, no footprints of men, are mentioned at the trial or in the affidavits to show that Paul had been in the alley or was assailed there or carried to the barn; and it likewise ignores the broken light in the barn. As aptly stated by the trial judge, the finding of the pail, standing alone or considered in connection with all the other alleged newly discovered evidence, cannot be regarded “as of such a character as to render a different verdict reasonably probable upon a retrial.”
Propositions 7 and 8 rest upon an affidavit by the witness Kireber, touching an experimental ride from Miles City to the Schultz homestead via the west bridge. The experiment is indecisive for several reasons. In the first place, it was not made under conditions similar to those predicated in the evidence. He was hampered by snow, had not the same horse, was not the same rider, did not possess the same incentive to hurry. Again, the narrow margin of,time depends upon whether it be assumed that appellant returned to the ranch at precisely 11 o’clock or “about 11,” as testified, and whether Schultz turned on the water at 9:05, as the Shermans think, or was killed between 8 and 9, as appellant told Mrs. Schultz. The latter hypothesis is not impossible, because the water could have been turned on by the appellant himself. Finally, Kircher’s affidavit is in the last analysis a mere expression of opinion, contrary to that given by him upon the trial as well as to other evidence in the case.
As to proposition 9: Lena Schultz and her husband both denied the statements imputed to them in the Tiemans affidavits, and excellent reasons are assigned by the trial judge for refusing credit to the affidavits. It will suffice us to say that the statements, if true and if they applied to the appellant in this case, were known to his counsel before the close of the trial, and are therefore not newly discovered evidence. (29 Cyc. 885.) Regarding the statements imputed to Lena Schultz that she was indebted to Ray Wilson, which were also denied, their office could only be to impeach her or to inculpate both of them; but to inculpate either as an actual perpetrator is upon all the evidence, including that of the appellant, impossible; and to inculpate either as an accessory does not tend in this case to destroy the conclusion that the actual perpetrator was the appellant. Hence these statements are without value as inducements for a new trial.
It is noteworthy that no complaint is made of any rulings in the course of the trial or of the instructions. The appellant was fairly tried, and painstaking consideration was obviously given to his motion for a new trial.
We find no error. Therefore the judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief 'Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied June 27, 1918.
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] |
PER CURIAM.
Application for writ of review herein was this day, after due consideration by the court, denied.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant North-Butte Mining Company is a corporation organized under the laws of the state of Minnesota, and is the owner of mining claims which it is engaged in operating in Silver Bow county. When the cause of action upon which recovery is sought herein arose, the defendant Norman Braly was its superintendent. This action was brought to recover damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendants during the course of his employment as a miner. The complaint is in the ordinary form and alleges facts sufficient to sustain a recovery, unless a recovery is precluded by the provisions of the Act passed by the Fourteenth Legislative Assembly commonly known as the Workmen’s Compensation Law (Chap. 96, Laws 1915). Denying all the allegations of the complaint charging them with negligence, the defendants alleged as a complete affirmative defense that at the time the plaintiff was injured, the defendant North-Butte Mining Company had elected to become bound by Plan No. 1 of the Workmen’s Compensation Law and had performed all the conditions prescribed by the Act to render such election effective; that the plaintiff had also pursuant to the terms of the Act elected to be bound thereby; and that, both plaintiff and defendant North-Butte Mining Company having made their election, the liability of the defendants to compensate the plaintiff for any injury suffered during the course of his employment through any negligent act or omission by them was such only as in that Act provided. To this affirmative defense the plaintiff interposed a general demurrer, which was overruled. Thereupon, the plaintiff refusing to join issue by reply, upon application of defendants his default was entered and judgment rendered and entered against him dismissing the action with costs. From this judgment he has appealed.
Plaintiff does not question the sufficiency of the answer to constitute a defense, provided the Workmen’s Compensation Law is valid. Quoting from the brief of counsel: “The only question involved in this case is the constitutionality of the Workmen’s Compensation Act.”
The causes, from a historical point of view, impelling the enactment of Workmen’s Compensation Laws, and the object to be served by them, have heretofore been stated somewhat at length by this court. (Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554; Lewis & Clark County v. Industrial Accident Board, 52 Mont. 6, L. R. A. 1916D, 628, 155 Pac. 268.) It is not necessary to restate them. It is sufficient for present purposes to call to mind that the object sought was to substitute for the imperfect and economically wasteful common-law system by private action by the injured employee for damages for negligent fault on the part of the employer, which, while attended with great delay and waste, compensated those employees only who were able to establish the proximate connection between the fault and the injury, a system by which every employee in a hazardous industry might receive compensation for any injury suffered by him arising out of and during the course of the employment, whether the employer should be at fault or not, except only when the injury should be caused by the willful act of the employee. In other words, the theory of such legislation is that loss occasioned by reason of injury to the employee shall not be borne by the employee alone — -as it was under the common-law system — but directly by the industry itself and indirectly by the public, just as is the deterioration of the buildings, machinery and other appliances necessary to enable the employer to carry on the particular industry.
To every thinking person the object sought commends itself not only as wise from an economic point of view, but also as eminently just and humane. Such legislation, in whatever form it may provide compensation, has been formulated after the most patient study and investigation by our most eminent men in professional and industrial walks of life, in order to avoid such obstructions or limitations as might be encountered under our written constitutions. A persistent enlightened public opinion has brought about the enactment of such laws in a great number of the states of the Union. Some of them are elective, while others are compulsory; and though the validity of many- — perhaps all — of them has been challenged on almost every possible constitutional ground, they have generally been upheld. Our own statute is elective. While -it has been criticised on the ground that the schedule of rates of compensation provided for by it is not sufficiently liberal and also on the ground that it makes an unwise and unjust discrimination against the dependents of aliens, yet that it operates more justly and more satisfactorily than the old system is demonstrated by the fact that as soon as it became operative, on July 1, 1915, the great body of employers as well as of employees in the various industries in the state accepted its provisions and have since been subject to them, as administered hy the Industrial Accident Board created hy the Act for that purpose. Under these circumstances, the rule that an Act of the legislature will not be declared invalid because it is repugnant to some provision of the Constitution unless its invalidity is made to appear.beyond a reasonable doubt, applies with peculiar force.
It is said that the Act is repugnant to section 6 of Article III of the 'Constitution, which declares that ‘ ‘ courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial or delay.” The respect wherein the Act is repugnant to this provision is not specifically pointed out, but we gather from the brief of counsel that their objection is that, though the Act is elective, it in effect closes access to the courts by the injured employee and compels him to seek relief, if he can obtain any at all, through the Industrial Accident Board. In other words, since the section declares in express terms that there shall be a judicial remedy for every wrong suffered by one person at the hands of another, it is beyond the power of the legislature to provide any other remedy, though such other remedy is entirely optional.
The Act is very long, and we shall not undertake to quote it. It will be sufficient to state the substance of the provisions which are made the'points of attack by counsel. The modes provided by which the election must be made by both the employer and employee are prescribed in sections 3(f), 3(g), 3(h), 3(i) and 3(j). The employer is required to file with the Industrial Accident Board his election in- such form as the board shall prescribe. It must state which of the three plans provided for he elects to he bound by, and a notice of it must be posted in a conspicuous place in his place of business, and also a copy of the notice filed with the board, accompanied by an affidavit showing that it has been posted as required. After the employer has made his election by complying with these requirements, every workman then employed by him or thereafter entering his employment is conclusively presumed to be bound by the Act, unless he elects not to be bound by it. He shall make such election by written notice in the form prescribed by the board, served upon the employer, a copy of which must be filed with the board together with proof of its service. If the employer fails to elect to come under the Act, an ordinary action may be maintained against him for damages for an injury suffered by the employee in the course of his employment or for death resulting from such injury, but the employer may not allege as a defense that the plaintiff was guilty of contributory negligence, or that the injury was caused by the negligence of a fellow-servant, or that the employee had assumed the risk incident to the employment or arising out of the failure of the employer to perform any of his common-law duties. On the other hand, if the employee elects not to be bound after the employer has elected to be bound, all the common-law defenses are available to the employer. It is declared to be the intention of the Act that the employer shall elect to be bound before he becomes subject to it, and that the employee shall be presumed to have elected to be subject to it and under the plan stated by the employer, unless he shall affirmatively elect not to be bound by it. The employee may revoke his election at any time. The employer may make his election at any time. In case he does so he becomes subject to the Act for the remainder of the fiscal year. After having once made his election he is bound for the rest of the fiscal year under the plan first elected, and also for the succeeding years unless within not less than thirty nor more than sixty days before the end of the fiscal year he elects not to be bound by it, or unless, within the same time, he elects to be bound by some one of the other plans. Such election must be made in the same manner as the original election. It is further declared that when both the employer and employee have elected to be bound by the Act its provisions shall be exclusive and the election shall be held to be a surrender by both of their right “to any other method, form or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for, or on account of, any personal injury to, or death of such employee,” except as such rights are in the Act itself specifically granted. The election shall bind the employee himself and, in ease of his death, his personal representative and all other persons claiming under him. The employer is likewise bound, together with those who may conduct his business during liquidation, bankruptcy or insolvency.
Three plans of compensation are provided for, differing in the mode by which benefits or compensation must be paid to the employee. Since no question is made as to the legal propriety of any of these plans or the mode of payment provided under each of them, it is not necessary to notice their distinguishing features.
The Industrial Accident Board consists of three members— the state commissioner of labor and industry, the state auditor, and the chairman, who is appointed by the Governor for a term of four years and receives a salary of $4,000 per annum. The other members receive no compensation other than their salaries as state officers. A majority of the board constitutes a quorum for the transaction of business. An appeal may be taken to the district court from any award made by the board, by any person affected by it. The trial in the district court must be de novo. The court may on good cause shown permit additional evidence to be introduced; otherwise the hearing must be upon the certified record of the proceedings of the board. If no appeal is taken the award of the board is final.
"We agree with counsel that when an employee has elected to become subject to the provisions of the Act, he may not thereafter prosecute an action for damages against the employer for an injury suffered by him during the course of his employment; nor may his personal representative prosecute such an action in case of his death. But counsel are in error in [5] supposing that for this reason the Compensation Act is repugnant to the section of the Constitution quoted. Their contention is based upon a misconception of the scope of the guaranty therein contained. A reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject matter and it relates directly to the duties of the judicial department of the government. It means no more nor less than that under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times and the place or places appointed for their sitting, and afford a speedy remedy for every wrong recognized by law as being remediable in a court. The term “injury” as therein used, means such an injury as the law recognizes or declares to be actionable. Many of the state Constitutions contain similar provisions, and the courts, including our own, have held either expressly or impliedly that their meaning is that above stated. (Johnson v. Higgins, 3 Met. (Ky.) (566), foot page 514; Barkley v. Glover, 4 Met. (Ky.) (44), foot page 39; Templeton v. Linn County, 22 Or. 313, 15 L. R. A. 730, 29 Pac. 795; Martin’s Executrix v. Martin, 25 Ala. 201, 208; Cunningham v. City of Denver, 23 Colo. 18, 58 Am. St. Rep. 212, 45 Pac. 356; Mountain Timber Co. v. State of Washington, 243 U. S. 219, Ann. Cas. 1917D, 642, 61 L. Ed. 685, 37 Sup. Ct. Rep. 260; Middleton v. Texas Power & L. Co., 108 Tex. 96, 185 S. W. 556; Cunningham v. Northwestern Imp. Co., 44 Mont. 180, 119 Pac. 554.) If the contention of counsel should be upheld, the consequence would be that the legislature would be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligence of another. It- is true the legislature cannot destroy vested rights. Where an injury has already occurred for which the injured person has a right of action, the legislature cannot deny him a remedy. But at this late day it cannot be controverted that the remedies recognized by the common law in this class of cases, together with all rights of action to arise in future may be altered or abolished to the extent of destroying actions for injuries or death arising from negligent accident, so long as there is no impairment of rights already accrued. This necessarily follows from the proposition, well established by the courts everywhere, that no one has a vested right in any rule of the common-law. The technical defenses recognized by it in this class of cases, viz., contributory negligence, assumption of risk, etc., may be abolished or modified without transcending any constitutional guaranty. (Middleton v. Texas Power & L. Co., supra; Mountain Timber Co. v. State of Washington, supra; Cunningham v. Northwestern Imp. Co., supra; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 37 L. R. A. (n. s.) 466, 117 Pac. 1101; New York Cent. Ry. Co. v. White, 243 U. S. 188, Ann. Cas. 1917D, 629, L. R. A. 1917D, 1, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247; Borgnis v. Falk Co., 147 Wis. 327, 347, 37 L. R. A. (n. s.) 489, 133 N. W. 209; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 Atl. 451.) This being so, there is no reason why technical rights of action arising out of the negligence of the employer may not be abolished by the legislature in the same way. And so it is held by the courts of those states which have enacted compensation laws made compulsory, as in new 'York and Washington. If this is so, for a much stronger reason may it be asserted that there can be no objection to a compensation law which becomes binding upon the employer and employee at their election, but not otherwise. By way of inducement to the employer to accept the Act, it is provided that if he refrains, the technical common-law defenses'shall not be available to him. As an inducement to the employee, his guaranty of compensation for any injury arising out of his employment becomes absolute, whereas, if he refuses to accept, he still has his action at law subject to all the common-law defenses. The employer cannot object because he has by his affirmative aet elected to waive all objections to the extent of his liability and his obligation to make compensation. The employee cannot thereafter object if he fails to give the required notice of his refusal to accept the conditions imposed. The difference in the modes by which they may indicate their election 'is not objectionable on the constitutional ground that it discriminates against either employer or employee. The former is not in this case making any [9] complaint; the latter cannot complain because it was competent for him to waive the advantage of any provision of law which was intended solely for his benefit, so long as the waiver did not violate public policy. (Rev. Codes, sec. 6181; Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469.) He may waive his right to a jury trial in the manner provided by law (Rev. Codes, sec. 6762; Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254). No one has ever questioned the power of the legislature to provide a means by which the parties to a controversy may waive a trial by a court and submit the matter to arbitrators selected by themselves, by whose award they are finally concluded in the absence of fraud, gross error, excess of power and the like. (Rev. Codes, sec. 7365 et seq.; Solem v. Connecticut Fire Ins. Co., 41 Mont. 351, 109 Pac. 432.) Other illustrative cases might be cited. These, however, are sufficient to show that it is no objection to the legislation that the employee after his election to become subject to the Act is conclusively bound to accept such compensation as may be awarded to him under its provisions. Nor is it a valid objection to it that it provides for a different mode of election by the employee from that provided for the employer. This feature of the legislation has been frequently considered by the courts and has invariably been declared unobjectionable. The following \ cases are directly in point: In re Opinion of the Justices, 209 Mass. 607, 96 N. E. 308; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Sayles v. Foley, 38 R. I. 484, 96 Atl. 340; Sexton v. Newark Dist. Tel. Co., supra; Borgnis v. Falk Co., supra; Hunter v. Colfax Consol. Coal Co., 175 Iowa, 245, Ann. Cas. 1917E, 803, L. R. A. 1917D, 15, 154 N. W. 1037, 157 N. W.145; Hawkins v. Bleakly, 243 U. S. 210, Ann. Cas. 1917D, 637, 61 L. Ed. 678, 37 Sup. Ct. Rep. 255; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, L. R. A. 1916D, 412, 417, 148 N. W. 71; Deibeikis v. Link-Belt Co., 261 Ill. 454, Ann. Cas. 1915A, 241, 104 N. E. 211; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49.
The silence of the employee establishes a presumption that he elects to be subject to the Act. It is clearly within the province of the legislature to establish presumptions and rules relating to the burden of proof, and a statute establishing a presumption of this character is valid, so long as the presumption is not unreasonable and not conclusive of the rights of the parties. (Bielenberg v. Montana Union Ry. Co., 8 Mont. 271, 2 L. R. A. 813, 20 Pac. 314; Hawkins v. Bleakly, and other cases cited supra.)
But counsel say that it is not competent for a party to waive the right to have his cause of action determined by a court before the cause of action arises. This court has expressly held under our statute (Rev. Codes, sec. 6181) that a party may waive in advance the advantage of the statute of limitations because it was intended solely for his benefit (Parchen v. Chessman, supra). If this is true, there seems to be no compelling reason why under the express authority of the legislature he may not at his option waive in advance the advantage of any remedy established solely for his benefit which the legislature itself may abolish, especially when it has provided a substitute remedy which renders his right to relief absolute.
It is argued that the Act is invalid in that it constitutes the Industrial Accident Board a court, whereas the whole judicial power of the state is vested in the courts enumerated in section 1 of Article VIII of the Constitution. Several of its provisions are cited as evidencing the fact that the functions of this body are judicial. The fallacy of this contention is fully demonstrated by the case of Cunningham v. Northwestern Imp. Co., supra. That case is decisive of counsel’s contention. It is true that many of the functions exercised by the board are judicial in character; but that it is not vested with judicial power in the sense in which that expression is used in the Constitution becomes clear upon a moment’s consideration. As used in the Constitution, the expression “judicial power” means “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” (Miller on the Constitution, 314.) This power the board does not possess. It ivas created as a purely administrative body. It may hear evidence to enable it to make an award in a particular case, and to that end may call witnesses; but it is without power to render an enforceable judgment and its determinations and awards are not enforceable by execution or by other process until a judgment has been entered thereon on appeal to a regularly constituted court. (Mackin v. Detroit-Timkin Axle Co., supra.) In this case, after considering the Michigan Act, the court said:-“We conclude that the Industrial Accident Board is a ministerial and administrative body with incidental quasi-judicial powers, exercised by consent of those electing to be governed by the Act, not vested with powers or duties in violation of constitutional limitations.'” The same view is announced in the following eases: Hunter v. Colfax C. Coal Co., supra; Borgnis v. Falk Co., supra; Deibeikis v. Link-Belt Co., supra; Middleton v. Texas Power & L. Co., supra; Case of Pigeon (Pigeon v. Emiployers’ L. Assur. Corp.), 216 Mass. 51, Ann. Cas. 1915A, 737, 102 N. E. 932; Greene v. Caldwell, 170 Ky. 571, Ann. Cas. 1918A, 604, 186 S. W. 648.
It may be conceded for present purposes that some of the powers vested in the board are such as appertain exclusively to courts; for illustration, the power conferred by sections 18(d) and 18(f) to punish for contempt. Of this, however, the plaintiff cannot complain, as counsel for defendants point out in their brief, for two reasons: In the first place, plaintiff is not about to be tried by the board for a contempt, nor has he been convicted by it. Hence he is in no position to assail these provisions of the Act on constitutional grounds. In the second place, though these provisions are assumed to be invalid, this assumption does not require the conclusion that any other provision is invalid. Section 24(b) declares: “If any section, subsection, subdivision, sentence, clause, paragraph or phrase of this Act is for any reason held to be unconstitutional or void, such decision shall not affect the validity of the remaining portions of this Act, so long as sufficient remains of the Act to render the same operative and reasonably effective for carrying out the main purpose and intention of the legislature in enacting the same as such purpose and intention may be disclosed by the Act.” An examination of the Act in its entirety will disclose that even though the provisions referred to by counsel are eliminated entirely, there is still enough left to accomplish all the purposes for which the legislation was enacted. The district court of the county in which the board happens to be sitting at the time an appeal is taken, which is elsewhere provided for in the Act, has full power- to compel the attendance of witnesses and punish them for disregard of subpoenas issued by the board.
The next contention made by counsel is that the board is an unlawful body because the state auditor, one member of it, holds two offices. By this we presume counsel mean that because the auditor is made a member of. the board and is required to execute a bond to guarantee the faithful performance of his duties, this constitutes him a public officer, in a capacity other than as state auditor. A complete answer to this contention is found in section 1 of Article VII of the Constitution. This section enumerates the state executive officers. It then provides that they shall perform such duties as are prescribed in the Constitution and by the laws of the state. It is not necessary to refer to the constitutional duties enumerated appertaining to the auditor’s office. The only limitation imposed upon the legislature in imposing duties upon the auditor is found in section 1 of Article IV. This prohibits the imposition of duties upon him that appertain to the legislative or judicial departments of the government. So long as this limitation is not, violated, the legislature is at liberty to impose any governmental duty upon this officer.
The other contentions made by counsel are: That the Act denies a jury trial, and that it violates the clause of the Fourteenth Amendment to the Constitution of the United States guaranteeing to the citizen the equal protection of the laws. What we have said above in discussing the other questions heretofore determined, disposes of these contentions.
The judgment of the district court is affirmed.
Affirmed.
Mr. Justice Holloway and M'r. Justice Cooper concur.
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MR. JUSTICE PIGOTT
delivered the opinion of the court.
Defendant, convicted of rape upon the prosecutrix, has appealed from the judgment of his conviction and from the order denying his motion for a new trial.
The attorney general objects to consideration, on appeal from the judgment, of the bill of exceptions for the reason that it was not presented or settled within the times prescribed by section 9340 of the Revised Codes; but the bill itself shows the objection to be untenable. Moreover, from the judge’s settlement and certification of the bill arises the presumption that it was presented and settled in time, which presumption is conclusive where, as here, it is not rebutted. (Murray v. Mauser, 21 Mont. 120, 53 Pac. 99.) He objects, also, to consideration on its merits of the order denying a new trial for the reason that the order was entered before the bill of exceptions was settled and therefore prematurely; but since the only errors assigned which we shall examine are reviewable on the appeal from the judgment, neither the order nor the objection requires further notice.
In view of the fact that the judgment must be reversed and a new trial ordered, we do not decide whether the question of the sufficiency in the weight of the evidence to justify the verdict, as distinguished from sufficiency in law to support it, may properly be reviewed on appeal from the judgment.
1. The refusal of the court to grant defendant’s prayer for a directed verdict is the first error assigned. Th,e evidence was in irreconcilable conflict. None of the state’s witnesses, except the prosecutrix, gave any direct evidence that defendant committed the crime charged, — they testified to circumstances corroboratory only of her testimony, which circumstances were insufficient to establish his guilt. Her testimony, however, was direct and, if believed, established his guilt, the law not requiring corroboration of the evidence of the prosecutrix (State v. Gaimos, 53 Mont. 118, 162 Pac. 596). The evidence was sufficient as matter of law to prove every element necessary to constitute the crime, and hence the court did not err in refusing to direct a verdict of acquittal. We do not determine whether the4court below should have advised the jury to acquit. Section 9297 of the Eevised Codes, providing in effect that if the court deems the evidence insufficient to warrant a conviction, it may advise, but not direct or compel, the jury to acquit, can be applicable only where the trial court deems the evidence which tends to prove — and which, if believed, would prove — every element necessary to constitute the crime, to be clearly insufficient in weight to justify a verdict of guilt. (State v. Welch, 22 Mont. 92, 55 Pac. 927; State v. Mahoney, 24 Mont. 281, 61 Pac. 647.) This section seems to lodge discretionary power in the trial court, and, since a new trial may result from reversal of the judgment, we do not express an opinion in respect of how that discretion should have been exercised had defendant appealed to it.
2. As has been stated, the evidence was irreconcilable. Certain facts, however, appeared about which no controversy existed or could exist. It was clearly shown that if defendant raped the prosecutrix, he did so in her father’j house during a night when he and one Squires were occupying the same bed; and that unless the crime charged was committed on the night of September 30 — October 1, it never was committed. Defendant swore that he shared the bed with Squires but once and then on the night of September 29-30, and that he spent the entire night of September 30 — October 1 in a house five miles distant from her father’s house, the testimony of other wit nesses tending to corroborate the latter item of evidence. Squires testified that he and defendant shared the bed on both nights. The prosecutrix and her sister stated in certain parts of their testimony that defendant and Squires occupied the same bed on the two nights, and in other parts of their testimony made statements from which the inference was permissible that these men shared the same bed only on the one night,— for instance, the prosecutrix testified: “Tate and Squires slept together only one night; that was the 29th and part of the 30th, —night of the 30th,” and if by this she meant the night of September 29-30, she contradicted herself and fixed a time which exonerated defendant; if by this she meant the night of September 30 — October 1, she flatly contradicted parts of her other testimony and parts of her sister’s and Squires’ testimony ; each of them had repeatedly said that defendant and Squires occupied the same bed on the two nights, each distinctly and circumstantially testifying that the two men occupied the same bed on these two nights. Her sister afterward swore: “I do not know exactly how many nights Mr. Squires and Mr. Tate slept together, I don’t remember. As to whether it was two nights, I do not remember anything about that. As near as I remember all I do know about that [is] that one night [September 30 — October 1], That is as near as I know about that. ’ ’
"With the evidence in this condition, defendant’s counsel during the course of his argument to the jury said in effect that the state had failed to comment upon the admission by the prosecutrix and her sister that defendant and Squires slept together but one night. He was interrupted by the county attorney’s objection that the remark was not in harmony with a correct construction of the evidence, to which defendant’s counsel answered by insisting that the construction was correct, asking that the record be read. The court held that the girl and her sister had not testified that defendant and Squires slept together on one night only, saying: “They did not confine it solely to one night; that is the record; we are not going to go into that. The record is that the witnesses [the prosecutrix and her sister] testified that they [defendant and Squires] slept together two nights. * * This is not an interpretation on this evidence at all. If you [defendant’s counsel] sat here throughout the trial of this case and allowed yourself to come to any such conclusion from the answers made, I cannot help it. I do not think there is any juror in doubt about that; let’s not go on with it, the result is absolute, I think, on that. There is also this testimony, that on the morning after Squires got up and found the defendant on his bed, they got up and washed and went to breakfast. It is in the record twenty-five times as to the number of nights they slept together.” Defendant excepted to the remarks of the court and to its action in sustaining the objection.
The court erred in requiring defendant’s counsel to desist from arguing to the jury that the prosecutrix and .her sister had testified that defendant and Squires slept together but one night. The court erred also in making the remarks quoted. It was the duty of defendant’s counsel to present the case in the light most favorable to the client and to that end to urge upon the jury all inferences from and interpretations of the evidence which were not palpably unwarranted. So long as counsel did not misstate the testimony, his privilege of drawing inferences and making comments was well-nigh without limit. He had the right by. way of argument to tell the jury that the testimony of the prosecutrix and her sister showed a certain fact or that they admitted it, if the argument had any fair ground on which to rest even though the court or its judge should hold an opinion, or be convinced, to the contrary. The testimony of the prosecutrix and her sister was such as fully to justify the argument by defendant’s counsel to the effect that they admitted that defendant and Squires slept to- gether on the one night only. The issue of fact was raised whether they shared the same bed on one night only or on the two nights, and the testimony of these two witnesses was open to attack as being self-contradictory on that issue. Defendant testified plainly and unequivocally that lie occupied the bed only on the nigbt of September 29-30, and be had the right to argue to the jury that his testimony in that respect was supported by the statements.of the prosecutrix and her sister, and he had the right likewise to point out to the jury the conflict in the testimony of each of these witnesses as discrepancies. In telling the jury, or saying in their hearing, that these witnesses had not said that defendant and Squires occupied the bed on one night only but had testified that the men had slept together on the two nights, and that the judge did not think that any juror could be in doubt about that fact, the court inadvertently misstated material evidence and declared to the jury that certain inferences only could be drawn from such evidence despite the fact that inferences to the contrary might well have been deduced. The practical effect was to withdraw from the jury the testimony quoted. The question of fact as to what the conflicting evidence established was, of course, for the jury, not for the court or its judge, to find.
Since the ruling and remarks of the court in the particulars mentioned were prejudicially erroneous to defendant, the question whether, under the Constitution and statutes of Montana, the trial judge may express to the jury his own opinion of the weight of the evidence and comment upon the credibility of the witnesses, provided the jury be advised that they are not in any wise bound by such opinion or comment and must themselves find the facts from the evidence adduced, need not be considered and is reserved.
The judgment is reversed and a new trial ordered.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On January 4, 1902, the plaintiff by an instrument in writing leased certain premises in Butte to defendant Yucovich for a term of three years from February 20, 1902, at the agreed rental of $300 per month, payable quarterly in advance. On the same day a bond to secure t'he payment of the rent was executed and delivered to the plaintiff, signed by Yucovich as principal, and James W. Forbis and the defendant, George H. Casey, as sureties. This bond recites that “on the 4th day of January, 1902, W. E. Dodd leased and let unto M. G. Vueovich those certain premises” (describing them), etc. The complaint' alleges that the plaintiff fully performed all the terms of the agreement by him to be performed, but that Yucovich did not pay $845 of the rent so agreed to be paid. The prayer is for that' amount, with interest from November 20, 1904.
The defendant Casey made separate answer, in which, after putting in issue most of the allegations of "the complaint, he alleges affirmatively: “That the signing of the alleged bond, plaintiff’s Exhibit B, by this defendant was and is without' consideration, in this: That the said lease, plaintiff’s Exhibit A, prior to the time that said bond was presented to this defendant for signature, and prior to the time he signed the same, had been by the plaintiff signed and executed and delivered to the defendant, M. G. Yucovich.” It is further alleged in this answer that the plaintiff, by agreement with Yucovich, but without the knowledge or consent' of the surety, Casey, modified the terms of the lease by extending credit to Yucovich on certain payments of rent, changing the rate of the rental and the times for the payments of rent, and by reason thereof t'he bond was abrogated and annulled as to the surety Casey. These affirmative allegations were put in issue by the reply.
Upon the trial the plaintiff offered evidence tending to show that Yucovich went' into possession under the lease on February 20, 1902, and paid the rent according to the terms of the lease up to May 20, 1903, on which date the sum of $300 was paid, and the further sum of $600 was paid on June 20, 1903. For the quarter beginning August 20, 1903, the plaintiff voluntarily reduced the rent' to $750, payable monthly, and for the quarter beginning November 20, 1903, the rent was paid as follows: November 30, $300; January 2, 1904, $600: On February 16, 1904, Vucovich paid $300, which paid the rent up to March 20, 1904, but did not pay any rent thereafter. It appears from the record that the sheriff got possession of the place about' April 7, 1904, and paid $300 rent for one month, and thereafter up to February 20, 1905, Barnet Bros, were in possession of the premises, and paid rent at the rate of $225 per month.
The cause was tried to the court sitting with a jury. At the conclusion of plaintiff’s ease defendant' Casey moved for a non-suit as to him, which motion was sustained. Thereafter the plaintiff moved for a new trial, and this motion was sustained. From the order granting the plaintiff a new trial the defendant Casey appeals.
Two contentions are made by counsel for appellant, as follows:
(1) It is said that the bond was void because there was not any consideration for its execution. It is said that it appears from the face of the bond that the lease had actually been executed at the time the bond was signed, and upon the familiar rule of law that a past consideration will not support an undertaking, it is urged that the bond is in fact nudum pactum. With this we do not agree. The bond refers to and makes the lease a part of it. Both instruments were executed on the same day, and, since the law does not take cognizance of a fraction of a day, the two instruments will be construed as having been executed contemporaneously and as amounting to one transaction. (9 Cyc. 580-582; Revised Codes, see. 5031.) But for the stronger reason we think there was a sufficient consideration for the execution of the bond. Assuming that the lease was signed before the bond was executed, the.bond does contain this provision: “Whereas, the said Dodd requires as a condition to the giving of the said lease, security for the payment of the rents reserved — Now, therefore, ”-etc. From this it clearly appears that the parties all understood that the lease did not become effective as such until the bond was given; or, in other words, it' was understood that the consideration for the execution of the bond, so far as the sureties were concerned, was the favor which the sureties received by having the lease become effective in order that Yucovich might' enjoy the possession of the leased premises. If such was the understanding of the parties, then the mere fact that the bond was not signed until after the lease was executed is immaterial. (McDonald v. Randall, 139 Cal. 246, 72 Pac. 997; Stroud v. Thomas, 139 Cal. 274, 96 Am. St. Rep. 111, 72 Pac. 1008; McNaught v. Claughry, 42 N. Y. 22, 1 Am. Rep. 487.)
(2) It is contended that the surety was released from liability by reason of the changes made in the terms of the lease: (a) As to the amount of rent to be paid for the quarter beginning August 20, 1903; and (b) as to the time for making the several payments of rent after May 20, 1903. It appears that during the fall of 1903, while business in Butte was dull, the landlord, at the request of the tenant, and without any consideration therefor, voluntarily reduced the rent for the quarter beginning August 20, 1903, from $900 to $750, and at different times permitted the tenant to make payments at irregular intervals, and not quarterly, in advance, as provided in the lease. It is said that the obligation of the surety “is strictissimi juris, and he is discharged by any alteration of the contract to which his guaranty applied, whether material or not, and the courts will not inquire whether it is or is not to his injury.” In the absence of statute this is undoubtedly true; but “the Code establishes the law of this state respecting the subject's to which' it relates.” (Revised Codes, sec. 8061.) Section 5686, Revised Codes, provides: “A surety is exonerated: (1) In like manner with a guarantor. (2) To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights, or which lessens his security; or (3) to the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do.” In the absence of any showing that the surety ivas, or indeed could have been, injured or prejudiced by these changes, he was not released from liability, under subdivisions 2 or 3 of the section above. Was he released under subdivision 1? Section 5673, Revised Codes, provides: “A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without t'he consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any wise impaired or suspended.” Standing alone, this section would warrant' the release of the surety in this instance; but the next section provides: “Sec. 5674. A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation, or suspend or impair the remedy, within the meaning of the last section.” If Dodd had received any consideration for reducing the rent from August 20 to November 20, 1903, or for permitting Yucovich to pay the rent in monthly installments, then clearly Casey would have been released, under the provisions of section 5673 above; but, since the record discloses that the concessions made by Dodd were promises without considerations, and therefore void as to him, they did not operate to release the surety. (Revised Codes, sec. 5674.)
There is also some suggestion that the surety was released by reason of the fact that Dodd permitted other tenants to occupy the premises during the term mentioned in the lease. It would seem from the record that some time prior to April 7, 1904, Yucovich failed in business; that the sheriff was in possession for one month; and that Barnet Bros, were in possession the remainder of the term. But these people were not tenants under the lease at all. The lease was not modified or changed in any respect to permit them to occupy the premises; but, Yueovich having failed, the plaintiff appears to have let these par ties into possession in order to minimize the damages recoverable on the bond.
We think the district court erred in granting the nonsuit', and made a proper correction of the error in granting plaintiff a new trial. The order is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action to quiet title. The plaintiffs claim under a deed from the administratrix de bonis non of the estate of Neptune Lynch, Sr. The defendants are three of the four heirs at law of Neptune Lynch,'Sr., and claim an estate in the property in controversy by inheritance. The trial court found the issues in favor of the defendants, and a decree was rendered and entered quieting their title to an undivided three-fourths interest in the land in controversy, subject, however, to a lien in favor of the plaintiffs for $1,854.80, that being three-fourths of the amount paid for the property at the sale by the administratrix. From the judgment and order denying them a new trial the plaintiffs appeal. Counsel for respondents in their brief point out a number of defects in the probate proceedings leading up to the sale, which they insist render the sale void.
1. The first of these alleged defects relates to the petition to sell real estate. Section 7562 of the Revised Codes provides that a petition for the sale of real estate shall .set forth (1) the amount of personal property that has come into the hands of the administrator; (2) how much thereof, if any, remains undisposed of; (3) the debts outstanding against the decedent, as far as can be ascertained or estimated; (4) the amount due upon the family allowance, or that will be due after the same has been in force one year; (5) the debts, expenses and charges of administration already accrued; (6) an estimate of what will or may accrue during the administration; (7) a general description of all the real property of which the decedent died seised, or in which he had any interest, or in which the estate has acquired any interest; (8) the condition and (9) the value thereof; (10) the names of the legatees and devisees, if any; and (11) the names of the heirs of the deceased, so far as known to the petitioner.
The petition in this instance omits any reference, in terms, to the matters required in subdivisions 2, 4, or 10; attempts to state the requirements of subdivision 5 by giving the amount of debts, expenses, and charges of administration accrued and remaining unpaid; recites, with reference to the requirements mentioned in subdivisions 7, 8 and 9, that “the following is a full description of all the real estate of which the decedent died seised, or in which he had any interest, or in which said estate has acquired any interest: Lot Number One (1), and the NE. % bf SE. % of Section Number Twenty-seven (27), Township Twenty (20) North, Range Twenty-six (26) West, less right of way of Northern Pacific Railway Company, and parcel set apart for school ground, and appraised at the sum of $2,000.00”; •and in other respects the petition appears to have complied literally with the section above. The petition itemizes the personal property which had come into the hands of the administratrix, and prays for an order to sell all of it, so that it may be said to appear that all of the personal property that had come into her hands remained undisposed of. The petition also sets forth that Neptune Lynch, Sr., died intestate, and this may be treated as a sufficient statement that there are not any legatees or devisees. It does not appear from the petition what, if anything, is due upon family allowance, if any ever had been made. But, since the purpose of requiring these various items of debts, charges and expenses to be stated is to inform the court of the financial condition of the estate, and whether or not in any event a sale of property is necessary, and since a family allowance is in fact a charge against the estate, and since the petition in this instance assumes to state the full amount of all of such charges, one of two conclusions seems inevitable: Either that there was not any family allowance made, or, if made, it is included in the total charges enumerated. However, this particular defect is not urged upon us by counsel for respondents in their brief, and we may treat the petition in this respect as complying substantially with the requirements of the statute.
The principal contention, however, arises over the alleged failure of the petition to state the condition and value of the real estate. All that is said in the petition on the subject is quoted above. But counsel for appellants contend that the language, “less right of way of Northern Pacific Railway Company and parcel set apart for school grounds, and appraised at $2,000,” refers to the condition of the land, and is a sufficient reference to enable the court to proceed with a hearing on the petition. We content ourselves with saying that, if this was intended for the purpose, it is so indefinite and uncertain as to be of no practical use; and, since we must assume that the legislature had some purpose in mind in requiring this matter to be stated, that purpose would obviously be circumvented by allowing a statement of this character to meet the requirement. We prefer to treat the petition as omitting any statement as to the condition of the real property. But is this such a defect as to render the order of sale void and open to collateral attack?
As we understand counsel for respondents, they do not insist that every fact required to be stated by section 7562 is jurisdictional, for they do not insist upon a literal compliance with the statute, but concede that the rule of construction is that a substantial compliance with the requirements of the statute is all that is required. The object of the proceeding under this section is to obtain an order to sell, and, before such order can be made, the necessity for the sale must be made to appear; and while this section, in subdivision 11, requires the names of the heirs, so far as known, to be given, it is inconceivable that the name of a particular heir could be of the slightest possible assistance to the court or judge in determining whether the necessity for the sale exists. With the object of this proceeding before us, we imagine that it will be conceded by everyone that a petition which on its face shows the sale to be necessary will be sufficient when drawn in question by a collateral attack upon the order of sale. But what are the facts which show the sale to be necessary ? In the early case of Haynes v. Meeks, 20 Cal. 288, Chief Justice Field, speaking for the court, said in effect that the petition must show, first, the insufficiency of the personal property to pay the debts, and, second, the necessity for selling real estate, and that such necessity does not follow as of course from a mere insufficiency of personal property; that, if the real estate is yielding an income sufficient to pay the outstanding debts and charges, there would not be any necessity for a sale, and that the necessity must appear from the description of the land, its condition, and value. The opinion is further expressed that facts showing the description, condition and value of the land cannot be dispensed with from the petition any more than the statement of the debts or personal property. This case was decided in 1862. In January, 1877, the same court, in construing the same statute, said: “The court should be informed by the petition of the condition of the property; that is, whether the property is improved or unimproved, productive or unproductive, occupied or vacant, and the like. Such information is necessary to enable the court to intelligently exercise its judgment in the selection of the property of the estate which can be most advantageously sold.” (Smith’s Estate, 51 Cal. 563.) This was the last and controlling pronouncement by that court at the time we adopted the statute from California in February, 1877; and upon the theory that, in adopting the statute, we also adopted the construction placed upon it at the time by the highest court of the state from which we took the statute, we might content ourselves by saying that such construction must be deemed controlling, in the absence of any good reason for a contrary holding. It is only fair, however, to say that in 1880, after we had incorporated the statute in our laws, the supreme court of California, in Boland’s Estate, 55 Cal. 310, reiterated the doctrine announced in Haynes v. Meeks, and also that in Smith’s Estate, and, by way of giving-emphasis to the views of the court, said, in effect, that the description, condition, and value of the real estate are jurisdictional facts which must appear from the petition. Again, in Kertchem v. George, 78 Cal. 597, 21 Pac. 372, the doctrine announced in Smith’s Estate is repeated; but the court there hoLds- that, unless the condition of the real estate appears in the petition or in the order of sale, the sale is void for want of jurisdiction in the court to order it. Later, in Devincenzi’s Estate, 119 Cal. 498, 51 Pac. 845, the same court held that an entire absence from the petition of any reference to the condition of the real estate would render the petition insufficient and the court would fail to obtain jurisdiction. At the same time it reiterates again the doctrine announced in Smith’s Estate. In Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458, the same court, speaking through Mr. Justice Temple, said: “I think there has been no time since 1858 when a sale of real estate would have been declared void because it omitted to give a description of all the real estate of which the deceased died seised or the valuation or condition of the different parcels. * * * Section 1537 expressly required the statement of some facts which have no bearing upon the question of the necessity of the sale. The description of the real estate or its value throw no light upon that matter. These and some other matters are required to be stated to enable the court to exercise its discretion more intelligently after it has determined the sale to be necessary. * * * The facts showing that a sale is necessary are that there are debts, that an allowance has been made for the support of the family, or that there are expenses of administration, and that there is not sufficient money in the hands of the administrator to pay them.” And, finally, in Levy’s Estate, 141 Cal. 639, 75 Pac. 317, decided in 1904, the same court again announced the rule in Smith’s Estate, above.
From these cases it is apparent at once that while the supreme court of California has adhered strictly at all times since 1877 to the rule announced in Smith’s Estate, it has not been at all consistent in applying the rule, and has apparently not given any attention to the conflicting doctrines announced in other respects. In our view of these cases they announce two irreconcilable theories as to the purpose of the statute. These theories are aptly illustrated in Boland’s Estate and in Burris v. Kennedy. In the first it is held that the condition of the real estate is a jurisdictional fact, and .the statement of such condition of the very essence of the petition. In the latter it is held that the purpose of requiring the condition to be given is to enable the court to exercise its discretion more intelligently after it has determined the sale to be necessary, and that the statement of the condition does not involve any question of jurisdiction. The decision in Boland’s Estate follows upon the reasoning of the court in Haynes v. Meeks, while Burris v. Kennedy is founded upon the rule announced in Smith’s Estate. We have reviewed these cases at length because of the fact that some of them are relied upon confidently by counsel for appellants, while others are just as confidently relied upon by counsel for respondents. So that we find ourselves confronted by these two theories announced by the highest court in the state from which we took our statute, and the necessity of determining which, if either, we shall adopt in this state.
Yery many of the matters arising in the due course of administration of an estate may properly be characterized as routine. Many of the proceedings are ex parte, but one of the most prominent purposes to be accomplished is the payment of the debts of the estate. This is the point at which the interests of the estate and of third persons — creditors—meet, and much more consideration is given to this than to any other subject connected with such administration. That the debts shall be paid is the injunction of the law. Sections 4799 and 7546, Revised Codes, provide:
“Sec. 4799. When a person dies intestate, all his property, real and personal; without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this Code and the Code of Civil Procedure.”
“Sec. 7546. All the property of the decedent shall be chargeable with the payment of the debts of the deceased, the expenses of the administration, and the allowance to the family, except as otherwise provided in this Code and in the Civil Code. And the said property, personal and real, may be sold, as the court or judge may direct, in the manner prescribed in this Chapter. There shall be no priority as between personal and real property for the above purposes.”
The exceptions in each of these sections refer to homesteads set apart and allowances made for the support of the family pending the appointment of an administrator, to estates in which the property is sought to be disposed of by will, and to estates of which summary disposition is made. But, barring these, the sections just quoted impress upon us the idea that all of the property of the estate is subject to the payment of the debts, using that term in its general sense, to include debts, family allowances, expenses, and charges of administration already accrued and to accrue.
Section 7561 provides: “When a sale of the property is necessary to pay the allowance of the family or the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies, the executor or administrator may also sell any real as well as personal property of the estate for that purpose upon the order of the court or judge; and an application for the sale of real property may also embrace the sale of personal property.” Taken in connection with the sections quoted above, and sections 7611-7613, if this section means anything, it is this: That the existence of debts and the inadequacy of available funds to pay them give rise to the necessity to sell property. (Burris v. Kennedy, above.) And, if such necessity appears, the real as well as personal property may be sold upon an order for that purpose. When the various sections above are considered together and with section 7651, it would appear to be a matter of discretion in the court or judge whether the personal property or real estate be sold first; but whether this be so or not is of no consequence here. If, then, the debts of the estate appear to exceed in amount the available means at hand, it may fairly be said to appear that a sale is necessary; and, if real estate is to be sold, the court or judge may properly consult the recitals of the petition as to the condition of the real estate to determine whether all or only a por tion should be sold, and, if only a portion, then what particular portion.
In our opinion the requirement of section 7562, above, that the condition of the real estate be given in the petition, was not intended to confer jurisdiction upon the court, and that this petition states facts sufficient to authorize the court to proceed. We think the rule announced in Smith’s Estate, above, not many years after the statute was adopted in California, correctly represents the purpose of the legislature in requiring the condition to be stated in the petition, and in adopting the statute we ought to give full force and effect to the rule of construction then placed upon it, and which seems in perfect harmony with our other statutory provisions. The result of the application of that rule leads to the conclusion announced in Burris v. Kennedy, above.
It is said that the value of the real estate sought to be sold is not stated in the petition; and, while there is room for argument as to the meaning of the statement contained in the petition, when tested by strict rules of grammatical construction, we think it may be said that it fairly appears that the petitioner meant that the property described and sought to be sold 'is appraised at $2,000. Since it appears from this record that the appraisement was had less than a year prior to the presentation of the petition to sell, it is a sufficient statement of the value. (Silverman v. Gundelfinger, 82 Cal. 548, 23 Pac. 12; Levy’s Estate, above.) We do not mean to say that the statements of the condition and value of the real estate are inconsequential matters, but we do mean to say that they are not matters of jurisdiction. They are intended to give to the court a better idea of the property belonging to the estate before an order of sale is made; and, upon review on appeal in the probate proceeding itself, this court would be justified in applying the statute with some rigor, to the end that the errors might be corrected and the purposes of the statute fully carried out. But after the sale has been made and confirmed, and purchasers have parted with their money and have gone into possession of the property, upon a collateral attack this court would not be justified in setting aside the proceedings and holding them for naught because of a defect of this character.
2. It is next contended that there was not any competent evidence that an order to show cause why the real estate should not be sold was ever made. In the minute-book kept for probate proceedings, as required by section 7701, there is an order to show cause entered at length. It is true that it purports to bear the signature of the district judge, but the signature is by the clerk of the court who entered the order. Since, however, the statute does not require that an order made in open court shall be signed by the judge, we may properly treat the signature as surplusage and the entry sufficient evidence of the fact that the order was duly made. There is not any requirement of law that the clerk shall recite that the order was made; but he is required to enter the order as made.
3. It is said that the order of sale is void because “ (a) it fails to describe the terms and conditions of sale; (b) it fails to order a public sale or to adjudge that it would be for the benefit of the estate that the property be sold at private sale; (c) the lands described in the order are not the lands described in the petition or in the administrator’s deed or in the order of confirmation. ’ ’
(a) It is true that the order fails to state the terms of sale as required by section 7569; but that section limits the terms which may be made to cash or credit for not more than one year. The return shows that the property was sold for cash and for a considerable sum more than its appraised value. After a full hearing, the district court confirmed the sale, and thereby ratified the action of the administratrix in selling for cash. It is a general rule of law that the confirmation of the sale cures all irregularities in the proceedings leading up to the sale. (17 Am. & Eng. Ency. of Law, 993; 18 Cye. 793.)
(b) The petition in this instance asked for authority to sell at public or private sale, and the statute (section 7569) speeifi eally authorized the court to make the order in the alternative, as was done in this instance.
(c) The most serious question arises over the description of the property in the order of sale. The land belonging to the estate'was situated in range 26 west, and the petition for the sale, the notices of sale, the order of confirmation, and the deed correctly describe it. But in the order of sale and in the return it is described as in range 25 west. The order of sale was the warrant of authority by which the administratrix acted, and without it she could not have proceeded. (Broadwater v. Richards, 4 Mont. 80, 2 Pac. 546.) But, after all, it is but a determination that the sale is necessary and an authority to make the sale. It does not affect the title or grant any right. It is the order of confirmation which finally operates to divest the heirs of their title and to secure to the purchaser the property. (12 Cyc. 787; 11 Am. & Eng. Ency. of Law, 1114.) Section 7578, Eevised Codes, provides that, when the order of confirmation is made, “the sale from that time is confirmed and valid.”
In Davie v. McDaniel, 47 Ga. 195, the order of sale was as follows: ‘ ‘ The application of Thomas A. Blanchard, administrator of Uriah Blanchard, to sell the lands belonging to the estate of said Uriah Blanchard, having been published according to law, and no one coming forward and objecting; it is ordered that Thomas A. Blanchard, administrator, have leave to sell the lands belonging to the estate of Uriah Blanchard, deceased.” Speaking of an objection to this order, the court said: “But it is said that the order of sale is void because it does not more definitely describe the land ordered to be sold. Section 2518 of the Code requires the order to ‘specify’ the land ‘as definitely as possible.’ Conceding that the land is not so specified, yet it appears to a majority of the court that this is only directory to the ordinary, certainly not an objection which can be successfully urged in a collateral attack upon the judgment.”
In considering a statute similar to our section 7569 above, the supreme court of Texas in Davis v. Touchstone, 45 Tex. 490, said: “The provisions of the statute requiring the order to describe the property to be sold, like the provision requiring the application of the administrator to be accompanied by an estimate of expenses, claims, and to be verified by affidavit, must be regarded as directory.”
“It is well settled that the description in the order of sale may be aided by other portions of the probate record.” (Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325.)
In Wells v. Polk, 36 Tex. 120, the order of sale referred t'o the land as any land and as much land of the estate as will suffice to pay the debts of the estate; and of this the court said: “Though there may have been irregularity in-the order of the probate court, it was not such as to render the proceeding absolutely void; and it cannot, therefore, be collaterally impeached. The probate court had jurisdiction to order the sale of the land, and, though the order may not have been made in the precise manner pointed out by the statute, it was not void.”
In Schnell v. City of Chicago, 38 Ill. 382, 87 Am. Dec. 304, the inventory and order of sale each described the land as in section 23, while in fact it was in section 33. The court said: “The petition describes the land correctly as in section 33, but the order of sale directs that the land in the petition be sold, namely, lots 45, 46, 48, and 49, in section 23. The notice of the sale contained a true description of the location of the lots, and so does the deed from the administrator to the appellee. If the intestate was shown to have possessed lands in section 23. or if it had been shown that section 23 had been subdivided into outlots, numbered as these are numbered, there might be some ground for the objection. But nothing of the kind is shown, and this misdescription of the section in the inventory and order of sale must be held to be a mere clerical error, not affecting the validity of the sale, since it is clear the proper Lots prayed to be sold were sold, and were the lots intended to be sold. The description is as particular in the petition as in the inventory and order of sale, and the lands described in the petition were the lands ordered to be sold.”
Counsel for respondents cite Hanson v. Ingwaldson, 77 Minn. 533, 77 Am. St. Rep. 692, 80 N. W. 702, and Melton v. Fitch, 125 Mo. 281, 28 S. W. 612, as leading eases which hold a sale void under such circumstances as here presented. It will' be observed however, that in Hanson v. Ingwaldson the court said: “But the records of the probate court received in evidence show that in the inventory of Hanson’s estate, and in all other records and papers relating to the sale, except the administrator’s deed, the land was described as situate in section 13, towmship 101, range 5, instead of range 6.” And in Missouri it would appear that the rule that reference may be had to other probate records to aid the order is not recognized.
In the case before us the petition to sell the real estate correctly describes it, and declares it to be “all the real estate of which the deceased died seised or in which he had any interest, or in which said estate has since acquired any interest.” In the order of sale reference is made to the petition, and the court having found that due publication of the order to show cause had been made, and it appearing to the court that it was necessary and for the best interests of the estate and all parties interested therein “that the real estate of the decedent” should be sold, the order was accordingly made. In her return of the sale the administratrix states that she caused notices to be given of the intended sale, in which notices the land was described with . common certainty (and correctly described), and at the time and place mentioned in the notices she sold said real estate. In the order of confirmation the court recites that, after a full hearing, it appeared that the administratrix had sold the land, correctly described, to the highest and best bidder, etc., “and, all and singular the law and the premises being by the court here seen, heard, understood, and fully considered, wherefore • it is by the court ordered, adjudged, and decreed that the said sale be and the same is hereby confirmed and approved and declared valid, and the proper and legal conveyances of said real estate are hereby directed to be executed to said purchaser by said Mary Boyer, administratrix of the estate of said Neptune Lynch, Sr., deceased.” It further appears that' on the same day the administratrix executed and delivered to the purchaser a deed for the property, again correctly describing it. From a consideration of all these records we think it clearly appears that the misdescription in the order of sale is but a clerical error.
If the estate had been interested in more than one piece or parcel of land, and after a hearing the district court or judge had directed one parcel or a number of parcels less than all to be sold, then the importance of the description in the order would become manifest at once. But, under the circumstances of this case, where there was but a single piece ^of land involved, and it was correctly described throughout by sectional subdivisions, by section and township, and accurately described in the petition and the notices of sale, in the order of confirmation and in the deed, and the order of sale refers to the petition and attempts to direct the sale of the same property; where the sale appears to have been fairly conducted and no one could possibly be injured or misled by the mistake in the order; where the purchaser has parted with his money and the estate has, and indirectly these heirs have, reaped the benefit; where the purchaser has been let into possession, and, acting in good faith, has changed its situation, has sold a large portion of the property to others, city additions have been platted from portions of the land, and a considerable time has elapsed — we do not think the mere mistake in writing into the order the figures “25” for “26” should be held to vitiate the entire proceeding. “Public policy requires that there should be stability in judicial sales, and therefore every reasonable presumption should be indulged in favor of sustaining them, and they should not be disturbed for slight causes, nor should the courts be astute in finding out objections to them.” (17 Am. & Eng. Ency. of Law, 994.)
If, then, the court had jurisdiction to make the order, and the order itself is not void, any defects in the proceedings were errors within jurisdiction and subject to review on appeal in the probate proceedings only, and not subject to attack in a col lateral proceeding such as this. As was said in Devincenzi’s Estate, above: “The order of sale was made May 12, 1896, and was an appealable order. Any error that the court may have committed in making it could have been corrected only upon a direct appeal therefrom. If, however, the petition upon which the order was made, is so defective that the court did not acquire jurisdiction, the order may be assailed at any time upon, a collateral as well as upon a direct attack; but, if the facts, stated in the petition were sufficient to confer jurisdiction upon the court to hear the application, its order directing a sale cannot be impeached upon a collateral attack. (Morrow v. Weed, 4 Iowa, 77, 66 Am. Dec. 122; Bryan v. Bander, 23 Kan. 95; Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458.) ” And in McNitt v. Turner, 16 Wall. 352, 21 L. Ed. 341: “Jurisdiction is-, authority to hear and determine. It is an axiomatic proposition, that when jurisdiction has attached, whatever errors may subsequently occur in its exercise, the proceedings, being coram judice,, can be impeached collaterally only for fraud. In all other respects it is as conclusive as if it were irreversible in a proceeding for error.” (See, also, 18 Cyc. 802.)
Whatever may be said of the particular means by which the-payment for the property was made, in law it amounted to a payment of the purchase price to the administratrix. Apparently McGowan, the purchaser, parted with his money in good faith, and received a deed for the property. The failure of the petition to comply literally with section 7562, and to state all the-facts required by that section to be stated, and the other errors, herein considered, amount only to irregularities in the proceedings, which are to be disregarded; for section 7625 provides that a sale by an administratrix of her decedent’s real estate to a. purchaser for a valuable consideration paid to such administratrix in good faith (and such sale has not been set aside by the-district court) shall be sufficient to sustain the deed given by such administratrix to the purchaser, and all irregularities in-obtaining the order of court for such sale, and all irregularities, in making or conducting the same by such administratrix shall be disregarded. In onr opinion tbe probate proceedings were not so far irregular or defective as to render the sale void or open to collateral attack.
The judgment and order are reversed, and the cause is remanded to the district court, with directions to set aside the judgment and order heretofore made, and to enter a decree in favor of the plaintiffs, quieting their title to the land in controversy.
Reversed and remanded.
Mr. Justice Smith concurs.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by the plaintiff, a minor, through a guardian ad litem, for damages for ajpersonal injury alleged to have been suffered by him through the negligence of the defendant. Plaintiff had verdict and judgment. Defendant has appealed from the judgment and an order denying it a new trial.
The defendant owns and operates an electric railway constructed over and along certain streets in the city of Helena, and extending from the city to Ft. Harrison, situated several miles to the northwest, and is a common carrier of passengers. Between the city and Ft. Harrison there is a single line of track. At the latter place the track is laid in the form of a circular loop, returning into itself by means of a switch. To make the return trip to the city the cars are run around the loop and reach the main line again at' the switch. A short distance beyond the switch, on the outside of the loop and at a point at which passengers bound to and from Ft. Harrison can most conveniently reach or leave the cars, the defendant has a small platform, six by eight feet, for their accommodation, the roadbed at this point being considerably higher than the general level of the surrounding country. From the level of the roadbed up to the step of the ear in use at the time t'he accident is alleged to have occurred was twenty-one inches. On the evening of April 15, 1906, the plaintiff, an enlisted soldier stationed at Ft. Harrison, wishing to board a car which was on its way around t'he loop and about to return to the city, attempted to do so as it was brought to a stop near the platform. The motorman in charge had allowed it to run too far, so that the front door was a few feet beyond the platform, and, in order to accommodate persons desiring to leave or enter, it was necessary to move it forward or backward, so that the front or rear door would be opposite the platform, because, the car being about thirty feet in length, the passengers could not otherwise use the platform. He undertook to back it up to the platform so that passengers could reach it from the front door. Just at' that time, according to plaintiff’s own statement, he had approached the car from the inside of the loop intending to enter it by the rear door. He had grasped the handle and put one foot upon the step. While in the act of drawing up his other foot, the car suddenly moved, causing him to lose his hold and footing, and to fall under the wheels, which crushed his leg near the ankle, with the result that he was permanently injured.
The complaint charges: “(6) That in the operation, management, guidance, and control of said street-car at the time and place hereinafter mentioned, the said defendants acted in a careless and negligent manner, in this, to-wit: That on the fifteenth day of April, 1906, on the said loop portion, and at the terminus of said corporation’s said track at Ft. Harrison, one of its cars had, on making the trip from the city to the said fort, come to a full stop to permit passengers to alight and board said car, which said car had come from said city, and was about to commence its return trip from said fort to said city; that said Robinson, desiring and intending to board said car, so at a full stop, as aforesaid, and become a passenger for hire thereon, proceeded to board said car, so at a full stop, as aforesaid, and put one foot upon the footboard at the side of the rear platform of said ear, at the same time grasping the handle of the car with one of his hands, and while he thus had one foot on the footboard, as aforesaid, and in the act of drawing up the other, but before he had or was afforded the time or opportunity to, or could, draw up his other foot, and during all of which time, while said Robinson was proceeding to board said car, both the motorman and the conductor were standing on the opposite or front platform of said car, and did not look back at or observe said rear end of the ear, the said car, through the negligence, carelessness and recklessness of said defendants, suddenly and without warning t'o this plaintiff, and without affording him time or opportunity to complete the act of boarding said car, as aforesaid, started up with great force and violent speed, and that by reason of the defendants’ said negligence, carelessness and recklessness, said Robinson, without fault' or negligence on his part, and while using due care and diligence, was caused to be violently thrown and precipitated with great force to the ground, and underneath one of the rear wheels of said car, and was thereby run over by said car, and both of the rear wheels of said car were derailed, the front wheels remaining on the track; and that, solely by reason of the said defendants’ negligence, carelessness, and recklessness, both bones of said Robinson’s right leg at the ankle joint were fractured, splintered, broken, and crushed. * * * ”
“(7) And plaintiff further avers, upon his information and belief, that in so operating, running, and driving and managing said street-car at the time and place aforesaid, and in causing the injuries so sustained by the said Robinson, as aforesaid, the said defendants acted in a willfully and recklessly negligent manner, and without any regard to their duty in the premises, and without any regard to the safety and rights of the said Robinson.”
The answer denies all the allegations charging negligence on the defendant’s part', and alleges contributory negligence on the part of the plaintiff. At the opening of the trial the defendant objected to the introduction of evidence by plaintiff, on the ground that it' appeared from the opening statement of his counsel to the jury that he was seeking to recover, upon proof of a cause of action not alleged in the complaint, and of which the defendant had had no notice, in that counsel claimed that the injury occurred while the car was on it's outward trip to Ft. Harrison and while it was backing up to the platform, whereas it is alleged in the complaint that the car had reached the platform, and was starting on its return trip. The motion was overruled. At the close of plaintiff’s case defendant moved to strike out the testimony of plaintiff and another witness, the ground of the motion being the same as that of the motion to exclude the evidence at the close of counsel’s statement. It also moved for a nonsuit, alleging several grounds therefor, all of which are included in the general statement: That there was a variance between the allegations in the complaint and the proof, and that from any point' of view the evidence did not make out a prima facie ease of negligence on the part of the defendant. These motions were denied. It is now contended that a new trial should have been granted because of error in these rulings, and also, in others made during the trial upon questions of evidence and in instructing the jury. It is also contended that the evidence as a whole, apart from the material variance between the cause of action which is alleged, and that which plaintiff sought to prove, is insufficient to justify the verdict.
The defendant’s bill of exceptions in support' of the motion for a new trial was prepared, in conformity with the requirements of the statute, as a bill of exceptions. It was entitled and served as such. The acknowledgment of service by plaintiff’s counsel designated it as such; and, aft'er service, they offered and had incorporated in it certain amendments. In the preparation of the certificate of settlement — which is in the form of an order — counsel for defendant designated it as a “statement on motion for new trial.” Apparently the trial judge attached his signature without paying attention to this designation. Upon the filing of the record in this court counsel for plaintiff submitted a motion to strike from it the whole of the bill, on the ground that it had not been settled in conformity with the requirements of the statute. They also submitted a motion, designating the document as an alleged “statement on motion for new trial, ’ ’ and asked to have it stricken out on the ground that the statute does not authorize a statement as the basis of a motion for a new trial. Pending these motions, counsel for defendant applied to the district court for an order to amend the certificate so as to make it designate the document as a “bill of exceptions,” and thus to conform to the fact. The court granted the order, and amended the certificate; and, upon written suggestion t'o this court, an order was made permitting the record on appeal to be amended accordingly, subject, however, to lawful objection by respondent upon the hearing of the cause on the merits. Disposition of the motions was deferred until that time. From the order made by the district court permitting the amendment, plaintiff appealed. By agreement of counsel this appeal has been submitted for decision, together with the principal appeals.
Inasmuch as we may not consider the questions sought' to be presented by the principal appeals unless the bill of exceptions is properly in the record, for they all arise out of proceedings which must have been brought into it by a bill of exceptions, we shall take up first t'he questions presented by the motions and the separate appeal. Is the certificate so defective that the document designated as a “bill of exceptions ” must be stricken out or disregarded? And, if so, had the district court, pending the appeal from the order, the power to amend it so as to make it conform to the requirements of the statute? Prior to the passage of the Act of February 26, 1907 (Session Laws 1907, p. 89), a motion for a new trial might be made either upon a statement of the case or a bill of exceptions (Code Civ. Proe. 1895, sec. 1172), at the option of the movant. The statement was in form a bill of exceptions, except as to the specifications of matters upon which the movant intended t'o rely (Code Civ. Proc. 1895, see. 1173), but it was made up after notice of intention to move for a new trial had been served and filed, and was settled as such. A bill of exceptions wras made up during the trial, or within ten days after notice of the entry of judgment, or within such time as the court or judge might allow. (Code Civ. Proc. 1895, secs. 1154, 1155.) A bill of exceptions could also be made up and settled after notice of intention had been served and filed, to be used as the basis of the motion, in the same manner as a statement was used. (Code Civ. Proe. 1895, sec. 1173.) The same course of procedure in the preparation of a bill may be pursued under the Revised Codes (Revised Codes, sees. 6787, 6788, 6796). Since the passage of the Act of February 26, 1907, there has been no provision in the Code authorizing a statement of the case to be used as the basis of the motion. The statement referred to in this Act as a part of the record on appeal (Revised Codes, sec. 6799) is t'o be made up after a motion for a new trial has been disposed of. Such being the provisions of law applicable, the certificate or order of settlement in this case does not properly designate the document to which it is attached. The objection made to it, however, is exceedingly technical. As stated above, it is entitled a “bill of exceptions.” Service of it was made as such. As shown by the recitals contained in it, it was submitted t'o the judge as a bill of exceptions, and apparently in the considera tion of the motion it was regarded as a proper basis for the motion. Besides, the certificate itself refers to the document as being “allowed, settled, and signed as and for a true and correct copy of the proceedings of the trial,” etc. In Harris v. Tomlinson, 130 Ind. 426, 30 N. E. 214, the supreme court of Indiana refused to sustain an objection to a bill of exceptions wherein the words “testimony” and “offered” were used, instead of the appropriate terms “evidence” and “introduced.” Touching the misuse of the first of these terms, the court said: “We cannot permit the simple misuse of a word, where the meaning is obvious, to defeat the operation of an instrument of such importance as a bill of exceptions.” The use of the word “offered” for “introduced” was deemed of no merit, since the record showed the sense in which the former was used. Even though no designation had been used in the certificate, we apprehend that no objection would have been made to it in this court. Under the circumstances we do not think the objection should be deemed meritorious. The motions to strike are therefore overruled.
In this disposition of the motions we have proceeded upon t'he theory that a motion to strike is the proper course to pursue in order to have the record purged of matters which should not have been incorporated in it. This procedure was recognized in Mettler v. Adamson et al., ante, p. 198, 99 Pac. 441, with reference to papers which are not part of the record in the lower court. Counsel for appellant' insists that the motion should be denied, because it is the rule, well recognized by the decisions of this court, that a document which is a part of the record in the lower court, and which has been properly certified to this court as a part of the record on appeal, such as a bill of exceptions or statement on motion for new trial, however defective it may be for any reason-appearing on the face of it, may not be stricken out, but must remain in the record; the effect to be given to it being a matter for consideration upon the hearing of the cause on the merits. This is the recognized rule. (Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 Pac. 106; Kranich v. Helena Con. Water Co., 26 Mont. 379, 68 Pac. 408.) Since disposition had to be made of them, however, we have treated them as if the question really at issue was properly raised by them.
The conclusion we have arrived at would obviate the necessity of discussing the action of the district court in* amending the certificate, were it not that the question involved is presented by a separate appeal, which must be disposed of. We are of the opinion that the court erred in this regard. When the bill of exceptions was settled and ordered filed, it, including the certificate, became a part of the record to be used on the motion for new trial. The disposition of the motion was made upon this record. Therefore, so long as the order stood, the record should not have been changed, for the result was the substitution of a new record as the basis of an order already made. The trial court has power to amend its records so as to make them speak the truth. (Power & Bro., Ltd., v. Turner, 37 Mont. 521, 97 Pac. 950.) It probably has the power, upon timely application presenting meritorious grounds therefor, to set aside an order disposing of a motion for new trial, and then to amend the bill of exceptions, provided a case is made which permits of such an amendment. Another order may then be made upon the basis thus furnished, and this is the orderly course of procedure. But after appeal from the order the court cannot amend it or set it aside, for it has lost jurisdiction over it for any purpose. The review in the appellate court must be made upon the same record upon which the order was made. The same or analogous questions have frequently been brought to the notice of the courts, and the decisions generally support the conclusions above stated. The principle running through them all is that' the determination of the trial court, whether technically a judgment or order, fixes for the time being the status of the parties, and the right to the relief sought by the appeal is predicated upon the condition of t'he record at the time the determination was reached. The following eases are in point: Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523; Baker v. Borello, 131 Cal. 615, 63 Pac. 914; Merced Bank. v. Price, 152 Cal. 697, 93 Pac. 866; Thomas v. Sullivan, 11 Nev. 280; Lamburth v. Dalton, 9 Nev. 64; Dean v. Pritchard, 9 Nev. 232; Riley v. Chicago, M. & St. P. Ry., 71 Minn. 425, 74 N. W. 171; Moore v. Reid, 110 Ga. 248, 34 S. E. 211. In Thomas v. Sullivan, supra, the trial judge had attached his certificate to the statement on motion for a new trial after the motion had been disposed of and an appeal taken from the order. The court disregarded the statement', saying: ‘ ‘ This certificate having been made after the district court had lost jurisdiction of the case for that purpose, we are compelled to wholly disregard the statement to which it' is affixed; and, as there is nothing to support the order granting a new trial, it must be reversed. ” If a certificate may not be supplied where there is none, certainly, and for the same reason, one so defective as to be nugatory may not be amended. The order authorizing the amendment is reversed. The order of this court’ permitting the record in this court to be amended upon suggestion of counsel should not have been made.
Passing now to the consideration of the merits, we inquire, first, whether the defendant should have been granted a new trial on the ground of the alleged variance between the proof and the allegations of the complaint. The contention is that the evidence does not tend to support the specific acts of negligence pleaded (a) as to the time of the accident; (b) as to the manner of its occurrence; and (c) as to the relationship of the parties. It is also said that the complaint alleges that the injury was caused by the willful and reckless negligence of the defendant, and that there is a further variance, in that the evidence tends to show only simple negligence. The last two of these specifications have to do rather with the insufficiency of the evidence to justify the verdict, and will be examined hereafter when we come to look into the evidence upon this point.
The complaint alleges that the accident occurred when t'he car, “on making the trip from the city to the said fort, had come to a full stop to permit passengers to alight and board said car, which said car had come from said city, and was about t'o commence its return trip; * * * that said Robinson, desiring and intending to board said car, so at a full stop,” proceeded to do so, but that tbe car, before he had time to board it, started up with great force and violent speed, causing him to be thrown under one of the rear wheels. The testimony of plaintiff is to the effect that the car on its return trip had run beyond the platform; that he had attempted to board it, having approached it from the inside of the loop and at the rear door, and that, while engaged in doing so, having one foot upon the step, and being in the act of raising up the other, the car suddenly moved backward, causing him to lose his hold and throwing him under the rear wheels. He did not notice whether the passengers were getting off the car. He noticed that the motorman was in the forward part of the ear, but did not see the conductor at all. He did not call the attention of either one of them t'o the fact that he was about to board the car. He had been stationed at Ft. Harrison since some time during the previous month. Terrence, a witness for the plaintiff, and the only other who testified as to any of the particulars of the accident, corroborated him in his statement as to the movement of the car, stating, further, that he stepped off the ear and walked back to the platform. Upon reaching it he heard plaintiff’s outcry, and discovered him lying near the rear of the ear, on the opposite side of the road. Hilliard, another witness, testified that it was customary for passengers to alight from the front end of the car at this station; that on this occasion the front end of the car was allowed to pass about four feet beyond the platform; that when it stopped, some one said it' would have to be backed up; and that it was backed up six or eight feet, so that the front door was opposite the middle of the platform. From the other evidence it appeared that no one on board the car knew of the presence of the plaintiff until after he had been hurt.
Does this evidence tend to establish a case different in substance from that alleged 1 It varies from it in putting t'he accident, in point of time, after the car had stopped and began to move backward in order to discharge its passengers, instead of after this had been done and it was moving forward on the-return trip to the city, and in revealing the fact that the plaintiff was thrown from it by a sudden backward movement in stead of a forward movement. But, since the defendant had notice of the time and place of the accident, and of plaintiff’s claim that he was thrown from the car by its sudden movement, what substantial ground is there for the conclusion that defendant was misled to its prejudice by this technical variance? The station was the end of the run. What difference could it make to defendant, in its effort to meet the charge, whether the car was moved backward or forward? The statute declares: “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” (Bevised Codes, sec. 6585.) Also: “Where the variance is not material, as provided in the last section, the court may direct the fact' to be found according to the evidence, or may order an immediate amendment, without costs.” (Bevised Codes, sec. 6586.) It does not appear that the defendant was misled so that' it did not have present any witness that it would otherwise have had, or that counsel was surprised in the least. They did not make this contention at the trial, but only that the variance was substantial, insisting that the evidence did not tend to establish exactly the cause of action alleged, and hence that there was a failure of proof. The trial court overruled t'heir contention as being without merit, and we think the ruling was correct. (Vreeland v. Edens, 35 Mont. 413, 89 Pac. 735.)
The gist of the cause of action alleged is that the defendant was guilty of negligence in failing to keep the car stationary until the plaintiff could board it. Whenever a passenger is about to board a car, under circumstances as to time and place such as that it can be said that he has been invited by the carrier t'o do so, the latter is guilty of negligence if time is not given him. The question for trial was whether the defendant had invited the plaintiff to board the car at the time he attempted to do so, and as he attempted to do it, and whether he was allowed the time necessary for that purpose; but whether-the car was moved backward or forward was a mere detail in the occurrence resulting in the injury, and no claim of substan tial variance can be predicated upon if. (Nord v. Boston & Mont. Con. C. & S. Min. Co., 30 Mont. 48, 75 Pac. 681; see, also, Lake Shore & M. S. Ry. Co. v. Hundt, 140 Ill. 525, 30 N. E. 458; Cincinnati, H. & I. R. Co. v. Revalee, 17 Ind. App. 657, 46 N. E. 352; Southern Bell T. & T. Co. v. Lynch, 95 Ga. 529, 20 S. E. 500; Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97.) Under such circumstances the defendant is not entitled to a new trial. (Revised Codes, sec. 6593; Poindexter & Orr Live Stock Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 Pac. 886.) The case of Pierce v. Great Falls & C. Ry. Co., 22 Mont. 448, 56 Pac. 867, cited by counsel, is not in point. In that case it was declared by this court to be the rule that, while general allegations of negligence on the part of the carrier are sufficient to sustain the action, yet when the particulars in which the negligence consisted are alleged, plaintiff in making his proof must confine himself to the limitations to which he has thus restricted the issue. This must be so, otherwise the defendant would be held upon proof of a cause of action of which he had no notice. And this is the general rule, as shown by the cases cited by appellant’s counsel; but it has no application to the facts of this- case. In all of these cases there was a substantive departure in the evidence from the cause of action declared on, and this was properly regarded as a failure in the proof. These remarks dispose of the motion made by counsel, at the close of plaintiff’s case, to strike out his testimony and that of the witness Terrence, on the ground that it' did not tend to support the specific cause of action alleged.
The last two particulars in which it is claimed that there was a departure in the proof wrere not called to the attention of the trial court under this head, and may not be urged in this behalf for the first time in this court. (Nord v. Boston & Montana Con. C. & S. Min. Co., 30 Mont. 48, 75 Pac. 681; Dawes v. Great Falls, 31 Mont. 9, 77 Pac. 309.) In fact they do not present the question whether there was a variance, but are rather particulars wherein, from the point of view of defendant’s counsel, the evidence failed to make out the cause of action alleged, to-wit, that plaintiff was a passenger on one of defendant’s ears, and was injured by the willful negligence of defendant’s servants; for the argument is that the court erred in refusing to sustain the motion for nonsuit and to direct a verdict for defendant, on the ground that the relation of passenger and carrier was not shown by the evidence, and that evidence furnishing an inference of ordinary negligence only does not support an allegation of intentional injury, as imported by the use of the terms “willful” and “reckless,” characterizing the negligence alleged .in paragraph 7 of the complaint. Noticing the last point first, it may be observed that the plaintiff introduced no evidence furnishing ground for an inference of wanton or willful wrong by defendant’s servants; nor was it necessary, from any point in view for him to do so, under the allegations contained in the sixth paragraph of the complaint. The word ■“reckless” does not imply willfulness. The term means “heedless, careless, rash, indifferent to consequences.” One may be heedless, rash or indifferent without intending the consequences of his action. (Kansas City etc. R. R. v. Crocker, 95 Ala. 412. 11 South. 262.) The allegations contained in the seventh paragraph might have been omitted altogether, without affecting the cause of action already stated. At best the use of the word “willful” in the last paragraph serves only t'o render the pleading indefinite and ambiguous in its statement of the cause of action, and this defect could have been taken advantage of by special demurrer only. Doubtless the trial judge entertained the view that, after issue joined, the pleading, ambiguous in its allegations, should be construed most favorably to plaintiff, and this course was correct, for the rule is that by answering defendant waives defects of this character (Revised Codes, sec. 6539); and, when question is thereafter made as to the purport of the pleading, it will be construed to state a cause of action, if upon any reasonable theory this may be done. Omitting the last' paragraph of the complaint, it must be construed to state a cause of action for simple negligence. The question presented by the motions did not arise directly upon the sufficiency of the pleading, bnt a solution of it required a construction of the pleading, and, under a just application of the rule adverted to, the contention of counsel was properly overruled.
The rule contended for by counsel that where the allegation is of willful or wanton wrong, proof of simple negligence will not justify a recovery is, we think, founded upon correct reason, and is supported by the great weight of authority. (29 Cyc. 588; Chicago B. & Q. Ry. Co. v. Dickson, 88 Ill. 431; Wilson’s Admx. v. Chippewa Valley Ry. Co., 120. Wis. 636, 98 N. W. 536, 66 L. R. A. 912; Kansas etc. R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; Louisville, N. A. & C. Ry. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807.) But counsel are not in position to invoke it in this ease.
The contention that the evidence did not establish the relation of passenger and carrier must, we think, be sustained. The substance of the testimony of plaintiff and the witness Terrence has already been stated. As already pointed out, these were the only witnesses who attempted to state any of the details of the accident. From the testimony of the conductor and motorman it appears that the intention was to stop the car with the front door at the platform, so that the passengers could leave it' by that door. From the testimony of some of the passengers this was the customary way of placing the car at this station, and this fact' must have been known to plaintiff. The motorman, upon finding that he had run by the platform, reversed the current and backed the car to the proper position. Naturally, the conductor was at the front end of the car to discharge his duty in looking after the passengers leaving and boarding it. Naturally, also, he could expect passengers leaving and boarding it to use the means provided by the company for that purpose. Without notice of the fact that a person wras seeking to get on board from the opposite side and through the rear door, neither he nor the motorman was bound to turn their attention in that direction. All the witnesses agree that the car was derailed, either as it' backed up to the platform, or as it started on around the loop on the return trip, and that the plaintiff was not discovered by anyone until after this occurred. It is not important, however, when the derailment took place. The important point is that the plaintiff undertook to board the car at a moment when he knew it was not at its proper place, from a direction from which he could not be seen, and without notice to the motorman or conductor, so that they could look after his safety. Had he, under similar circumstances, undertaken to board a train on a steam railway, he would not have been a passenger, but rather in the position of a trespasser, to whom the company would not have owed any duty until it had notice of his presence.
In Wardlaw v. California Ry. Co. (Cal.), 42 Pac. 1075, the facts were that' the plaintiff approached a train from the wrong side, and attempted to board it by a means other than the steps provided for that purpose. In doing so he put his foot upon the bumper of the car just in time to have it' caught between it and the bumper of the next car as the engineer started to back the train, and was thus injured. In speaking of the duty of passengers to use platforms provided for them by a railway company the court said: “It is the duty of a railway company, as a common carrier of passengers, to keep its stations and the approaches thereto in such a condition that those having occasion to use them for t'he purposes for which they are designed may do so with safety. So, too, the duty devolves upon it of preparing all proper means of ingress and egress to and from its cars devoted to the carriage of passengers. This duty performed by the railroad company, the reciprocal duty devolves upon one who would take passage by the cars to use his natural faculties in selecting such means and place of access thereto as have been provided for that purpose, and as promise immunity from danger. Not to do so is evidence of negligence on the part of the passenger; and where, as in the present case, the plaintiff went' upon the side of the ear opposite to the platform, and presumably not the place arranged to receive passengers, and, finding no place of access, attempted to climb upon the train, from between the cars, wich the barrier of a railing be fore him to be scaled when he reached the level of the car floor, and in so doing placed his foot upon the bumper, where it' was caught by the connecting car, pressed back by the engine moving up to couple on the train, but one inference can be drawn from the facts, and that is that he was guilty of such negligence as is denominated negligence in law.” The rule here announced is laid down by the authorities generally. (1 Fetter on Carriers, sec. 228; Georgia Pac. Ry. Co. v. Robinson, 68 Miss. 643, 10 South. 60; Louisville & N. R. Co. v. Ricketts, 96 Ky. 44, 27 S. W. 860; McGeehan v. Lehigh Valley St. Ry. Co., 149 Pa. 188, 24 Atl. 205; Cleveland, C., C. & St. L. Ry. Co. v. Wade, 18 Ind. App. 346, 48 N. E. 12; Denver, S. P. & P. R. Co. v. Pickard, 8 Colo. 163, 6 Pac. 149; Haase v. Oregon Ry. & Nav. Co., 19 Or. 354, 24 Pac. 238; Jones v. Boston & Maine R. R., 163 Mass. 245, 39 N. E. 1019.) It applies as well to persons leaving trains, as is shown by the cases cited. It is based upon the obviously just principle that the very high degree of watchfulness which the carrier must exercise toward those who have intrusted themselves to its care at its own invitation is not due to those who are not invited to do this, or who, if invited, do not avail themselves of the means provided by which they may accept the invitation, but adopt means of their own choice. It is not permissible for street railway companies to provide platforms, and other like conveniences, along the streets. The graded or paved streets furnish the only platform from which cars may be boarded. The places at' which they stop may be designated by the ordinances of the city. If there be no such ordinances or public statutes on the subject, the companies regulate their own conduct in this regard. Whenever and wherever they do stop their cars, and they are so equipped as to indicate that they are ready to receive passengers, and are about to proceed on their way to transport them, this must be regarded as an invitation to anyone desiring to become a passenger to enter. But when the track runs beyond the limits of the city, through uneven, open country, it is generally necessary for the company to designate stations and to provide platforms so that the cars can be reached without inconvenience and danger. Under these circumstances the principles which apply to steam railways apply to them also, and the duties and liabilities of those operating them are the same, because, excepting the fact that they must perhaps provide for more frequent stops, the circumstances and responsibilities are the same. (Booth on Street Railway Law, see. 329; Udell v. Citizens’ Street Ry. Co., 152 Ind. 507, 71 Am. St. Rep. 336, 52 N. E. 799; State to the Use etc. v. Lake Roland Elevated Ry. Co., 84 Md. 163, 34 Atl. 1130.)
Under the undisputed fact's in this case the ear had not stopped at the usual place for taking on and discharging passengers. This fact must have been known to plaintiff, for presumably he was aware of the custom pursued by the company at this station. At any rate, knowing the car had passed the station, he paid no attention to this fact, but, going to the opposite end from that' intended for the use of passengers, without giving notice to those in charge of it, he undertook to board it. Whether the inference to be drawn from these circumstances is that he assumed the risk, or was guilty of contributory negligence, the blame rests with him, and he cannot recover.
Among the instructions submitted to the jury was the following: “(14) In determining t'he amount which you may award to the plaintiff on account of any diminished capacity for the work or labor because of his injuries, if you believe them to be permanent, you may take into consideration his expectancy of life, and you may award him such sum on that account as will purchase an annuity equal to the difference between what he could have earned if he had not been injured and what he can now earn in view of his injuries.” Counsel for defendant “objected” to the giving of this, for the reason that it is a comment upon the weight of the evidence, and explicitly told the jury that they should award t'o the plaintiff such an amount as would purchase an annuity equal to the difference between what he could have earned if he had not been injured and wbat he could earn in his injured condition. It is insisted by counsel for plaintiff that the error assigned upon this instruction is not properly before this court for examination, because it does not appear from the recoid that a formal exception to the giving of the instruction was reserved in the trial court after the objection had been overruled.
Under section 6746, Revised Codes, at the settlement of the instructions as therein provided, counsel must state his objection to the particular instruction, and, if the objection is overruled, reserve his exception. The language of the section confuses the meaning, to some extent, of the terms “objection” and “exception”,- but orderly procedure requires an exception after the objection has been disposed of, in order to enable counsel to urge the action of the court thereon on motion for a new trial, or on appeal, as in case of all other rulings that are regarded as objectionable, and to which exception must be taken. Technically, therefore, counsel for defendant have no right to have this court review the action of the trial court in this particular. Since, however, the question presented is of some importance, and a new trial must be ordered for the reason already stated, we shall venture to indicate briefly- our views.
Before doing so, however, we shall notice another objection made to the consideration of the question presented by the assignment, viz., that the instructions given and refused are not in the judgment-roll, as required by the section cited supra, but are found only in the bill of exceptions, and therefore that none of them are before us for examination. Section 6784 declares what matters are deemed excepted to without form a L exception embodied in a bill. Among them are the instructions. Section 6806 declares what the judgment-roll shall contain, the enumeration therein, including the matters deemed excepted to and made part of the record without a formal bill of exceptions. Section 6746 declares that all instructions, both those given and those refused, shall be indorsed by the judge and filed as a part of the record in the ease. This section was enacted by the tenth legislative assembly (Session Laws 1907, p. 62), but seem ingly without attention to, or notice of, the provisions in sections 6784 and 6806. Prior to the passage of this Act a review of the instructions could be had upon appeal from the judgment, either with or without the aid of a bill of exceptions bringing up the evidence. It' will be seen, however, that by the express provisions of section 6746 the instructions may not be reviewed without a bill of exceptions specifically pointing out the particular objection made at the time of the settlement; so that, while they are a part of the record, they really serve no useful purpose on the appeal. Section 7112, however, requires only those parts of the judgment-roll which are necessary to be considered on the appeal to be brought up in the transcript. Hence the bringing up of the instructions can serve no useful purpose if the bill of exceptions taken at the settlement is made up in conformity with the requirements of section 6785, so as to present intelligibly the point upon which the appellant relies.
In view of the provisions of section 6746, requiring a bill of exceptions in order to obtain a review of the instructions, and the requirements of section 6785 referred t'o, we hold that the proper course to pursue is to incorporate in the bill the whole charge, .or such parts of it as will illustrate the point upon which the objecting party relies. The provisions of sections 6784 and 6806 have become obsolete, so far as they include the instructions as a part of the record for review, without a bill of exceptions embodying the objections of the party to the action of the court thereon. This rule applies, also, to instructions requested and refused. The instruction complained of, together with the rest of the charge, both the paragraphs given and those refused, are properly in the bill of exceptions.
Coming, then, to consider the contention of counsel for defendant, we are of the opinion that the instruction is open to the objection that it does not declare the correct rule as to the use to be made by the jury of the mortality and annuity tables in arriving at the amount of their verdict. The instruction follows closely the language employed by this court in Bourlce v. Butte Electric Power Co., 33 Mont. 267, 83 Pac. 470, in discussing the propriety of using mortality and annuity tables as a definite standard by which to fix the amount of compensation for the impairment of earning capacity in personal injury cases. What was there said was not necessary to a decision of the case. It was the subject of comment in the later case of Lewis v. Northern Pacific Ry. Co., 36 Mont. 207, 92 Pac. 469, and the suggestion was there made that, when earning capacity depends upon physical strength, the jury should also be advised that they should consider the fact that as age advances physical strength and earning capacity diminish, and that their finding should be made accordingly. The suggestion made in the latter case was in the decision of the question whether the verdict was excessive, and did not arise upon the propriety of an instruction. Whether the remarks in either of these eases were pertinent or not, the intention was not to lay down a fixed standard or rule by which the jury should be governed. A variety of circumstances must always enter into the consideration of the jury in adjusting the amount of damages to be allowed for impairment of earning capacity. Mortality and annuity tables are competent evidence, and, generally speaking, the only substantive evidence that can be submitted to aid the jury in arriving at a just conclusion. For this reason the average man would be inclined to resort to it as the easiest means of solving the difficult problem before him, to-wit, how much will compensate the plaintiff for his loss of earning capacity. So, if reference is made in the instructions to this feature of the evidence at all, it should not be made in such terms, as in the instruction before us, as to leave room for the conclusion that these tables must be accepted as a fixed standard of computation by which the jury are to be governed absolutely. In addition to impairment of earning capacity by advancing age many other things are proper for consideration as elements in the problem. The office of these tables and the other matters to be considered together with them are well stated by the supreme court of Oregon, in Morrison v. McAtee, 23 Or. 530, 32 Pac. 400, as follows: “Standard mortality tables, showing the expectation of life of a given age, are competent for the purpose of showing the probable length of life of any given person, but, in the nature of the case, cannot be conclusive. They are simply the result of calculations, based upon a certain average rate of mortality as shown by experience, and assuming that all of the same age are of equal value. But the constitution, habits, and health of individuals differ essentially, and this must be taken into consideration in estimating the probable length of life of any given person, and therefore no ordinary table of expectation of life, although it may offer much valuable information, can alone be taken as a correct' rule for estimating the value of the life of any particular individual.”
In commenting upon an instruction on this subject, the supreme court of the United States, in Vicksburg etc. Ry. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257, said: “Life and annuity tables are framed upon the basis of the average duration of the lives of a great number of persons. But what the jury had to consider in this case was the probable duration of plaintiff’s life and of the injury to his capacity to earn his livelihood. Upon the evidence before them it was a controverted question whether the injury would be temporary or permanent. The instruction excepted to, either taken by itself or in connection with the whole charge, tended to mislead the jury by obliging them to ascertain the average injury t'o the plaintiff’s capacity by the year, whether the extent of that injury would be constant or varying, and by giving them to understand that the tables were not merely competent evidence of the average duration of human life, and of the present value of life annuities, but furnished absolute rules which the law required them to apply in estimating the probable duration of plaintiff’s life and the extent of the injury which he had suffered. ’ ’
An instruction formulated so as to embody the suggestions here made would not be open to any objection, and would aid the jury, so far as the court may aid it, in reaching a just con elusion. For a discussion of the subject generally, reference is made to the following cases: Rooney v. New York etc. Ry. Co., 173 Mass. 222, 53 N. E. 435; Nelson v. Lake Shore Ry. Co., 104 Mich. 582, 62 N. W. 993; Trott v. Chicago etc. Ry. Co., 115 Iowa, 80, 86 N. W. 33, 87 N. W. 722; Roose v. Perkins, 9 Neb. 304, 31 Am. Rep. 409, 2 N. W. 715; Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 Pac. 1019; Florida etc. Ry. Co. v. Burney, 98 Ga. 1, 26 S. E. 730; City of Joliet v. Blower, 155 Ill. 414, 40 N. E. 619; Smiser v. State, 17 Ind. App. 519, 47 N. E. 229.
Rehearing denied March 10, 1909.
The other assignments are not of sufficient merit to demand special notice.
The judgment and order are reversed, with directions to the district court' to grant the defendant a new trial.
Beversed and remanded.
Mr. Justice Smith and Mr. Justice Holloway concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the: court.
This action was commenced in the district court of Missoula, county by Peter Larson against O. E. Peppard for the purpose of having determined any adverse claim of the defendant to certain pieces and parcels of land situated in the city of Missoula, and claimed to be owned by, and in the possession of, plaintiff and the heirs at law of one John "Woods, deceased. The plaintiff died, and the personal representatives of his estate were substituted as plaintiffs. The complaint is in the ordinary form of actions to quiet title. The prayer is that the defendant be required to set forth the nature of his claim, that it be determined to be without right, and that the defendant be enjoined from asserting any claim to the premises. In addition to other defenses, the answer sets forth that in 1893 the premises in controversy were owned by Larson and Woods, and were assessed by the assessor of Missoula county for taxation to such owners; that the taxes were not paid within the time allowed by law before they became delinquent; that the property was advertised for sale for delinquent taxes; that a sale thereof was had, and at such sale Frank D. Low became the purchaser of the property and received the treasurer’s certificate of sale; that in March, 1896, the county treasurer of Missoula county executed and delivered to Low a treasurer’s deed for the property; that in 1896 Low and his wife executed and delivered to the defendant a quitclaim deed to the property; that from 1894 to 1901 the property was assessed to Low, and from 1902 to 1906 to this defendant; that all the taxes levied upon the property for 1894 and 1895 were paid by Low, and the taxes for 1897 to 1906 were paid by the defendant. The answer prays that, if it be found that the title to the property still remains in Larson and Woods, the defendant be adjudged to have a lien upon the property for the amounts paid by himself and his predecessor. The cause was tried to the court sitting without a jury. A decree was rendered and entered quieting plaintiff’s title to an undivided one-half interest in the property, subject to a lien of defendant upon the whole property for the different amounts paid for taxes. From this judgment the plaintiffs have appealed.
It may be conceded that the proceedings taken in connection with tbe taxes for 1893 were so far irregular that the sale of the property by the county treasurer did not operate to divest Larson and Woods of their title to the property; and it may be conceded, further, for the purposes of this case, that, by reason of such irregularities, neither Low nor Peppard could maintain an action at law to recover back the amounts paid by him. But this is an action prosecuted under the provisions of section 6870, Eevised Codes, and this court has repeatedly held that such an action is one in equity. (Montana Ore Pur. Co. v. Boston & Montana Con. C. & S. Min. Co., 27 Mont. 288, 70 Pac. 1115; Mares v. Dillon, 30 Mont. 117, 75 Pac. 963; North Real Estate L. & T. Co. v. Billings L. & T. Co., 36 Mont. 356, 93 Pac. 40.) Larson, then, having appealed to a court of equity to relieve his property from the outstanding claim of the defendant, the court could properly apply to him the maxim, “He who seeks equity must do equity. ” The property was subject to taxation. There was at least an attempt made to levy and collect the taxes. Larson and Woods owed the duty to bear their just proportion of the burden of state, county, and city governments. They failed to discharge the duty in this instance, and Peppard and his predecessor discharged it for them, under the mistaken belief that they thereby acquired an interest in the property. The payments made were not voluntary, in the sense that they were made merely to discharge the obligations of Larson and Woods. But in a case of this character the particular inquiry which the court makes is to ascertain whether the property was in fact subject to taxation; whether the proceedings were so far in compliance with the law that the court can say that the land owners should have paid the taxes, and that such taxes were their just contributions towa'rd the support of government. If these facts appear, then equity will compel the tardy land owners to do that which they should have done in the first instance — pay the taxes. It is certainly not imposing upon them any unreasonable or unjust burden to require them to bear their just proportion of the expense of government. No reason is suggested why these particular parties should he relieved from the payment of any taxes whatever upon this property for sixteen or seventeen years. When Larson applied to the district court, sitting as a court of equity, to quiet the title to his property as against any claim of the defendant, and it appeared that the defendant’s claim rested upon the payment of taxes under the circumstances of this case, the court in effect said to him: “You and your co-owner ought to have paid the taxes on this property, and, as a condition precedent to your having such property free from any claim made by the defendant by reason of his having paid the taxes which you ought to have paid, you must now discharge your duty, as nearly as can be done, by paying the amounts to this defendant, together with legal interest thereon.”
The authorities are not entirely in harmony upon this subject. Some of the courts deny the right to impose any condition whatever; but the rule adopted by the trial court, and which is approved in principle, has the support of many courts and text-writers, and, in our opinion, is right and ought to prevail in this state.
The assessment and sale of property for delinquent taxes is a proceeding in invitum. The purchaser at such sale buys at his peril, and the rule of caveat emptor applies (Birney v. Warren, 28 Mont. 64, 72 Pac. 293); but the mere fact that the rule of caveat emptor applies is not any ground for relieving the land owners from the payment of burdens for which the land was in fact responsible, without first requiring such land owners to do that which they ought to have done. “The owner comes into a court of equity, asking that he be relieved from tax proceedings which he claims to be illegal. Before his prayer should be granted, he should do equity himself, and reimburse the tax purchaser.” (Powers v. First National Bank, 15 N. D. 466, 109 N. W. 361.)
In a very large number of jurisdictions it has been held that in a suit to quiet title or to determine adverse claims to real estate, instituted by the owner against the tax deed holder, the rule, “He who seeks equity must do equity,” applies with full force and vigor, and that the payment or tender of the taxes which the owner ought to have paid will be held to be a condition precedent to his right to the relief demanded. In Boeck v. Merriam, 10 Neb. 199, 4 N. W. 962, the supreme court of Nebraska states the rule in the terse and vigorous language of Chief Justice Maxwell, as follows: “But can the party claiming to be the owner of the land be permitted to have a tax deed declared void upon the ground that it is a cloud upon his title, unless he states some ground for equitable relief other than a mere irregularity in the assessment? The burdens of taxation must be borne by the taxable property in the state, and a fair proportion of such taxation is to be assessed upon all such property according to its value, and is in justice and equity a just charge against the same. When a taxpayer, therefore, for any cause escapes taxation, an act of injustice is committed against every other taxpayer in the state, as this additional burden is thrown upon them. * * * And if the owner of real estate can wait until his land has been sold for taxes and until the certificate of sale has ripened into a deed, and then upon a mere technicality, without the payment or offer to pay the taxes justly chargeable against his property, have delivered up and canceled at the costs of the tax purchaser, as in this case, the tax deed, he not only entirely escapes the payment of legitimate taxes, but the owner of the tax deed is deprived of a valuable legal right — that of trial by jury — and is mulcted in costs for his temerity in purchasing at tax sale, while the party claiming to be the owner of the land takes no hazard of losing his land from an adverse title. But such is not the law. He who seeks to have a tax deed declared void where the taxes for which the land was sold were lawful taxes, and justly chargeable against the same, if legally assessed, must, as a condition of relief, pay or offer to pay the taxes justly due thereon. Otherwise he states no ground for equitable relief. He does not offer to do equity. He seeks the aid of the court to aid him, by giving effect to mere technicalities, to shield him from his just liabilities. It is difficult to imagine a case more utterly barren of equity than this.”
Early in the history of North Dakota the rule for which appellants here contend was recognized. In a case of this character the delinquent land owner was permitted to have the title to his property quieted without the payment of back taxes (see Douglas v. Fargo, 13 N. D. 467, 101 N. W. 919); but in State Finance Co. v. Beck, 15 N. D. 374, 109 N. W. 357, the former decisions were overruled, and, among other things, the court said: “If the sale is set aside unconditionally, even though the tax is not canceled, the county is chargeable with the accrued interest, and plaintiff gets the benefit of the use of the money without interest, which he ought to have paid years before, and his tax-paying neighbors must suffer for his laches. A court of equity will not tolerate such injustice. It will grant relief only on the condition that the party seeking it does equity. The burden of each taxpayer’s neglect of his obligations should be borne by himself. Hence we shall hold that, as a condition to the vacation of the sale in question, the plaintiff must pay to the defendant Beck, or into court for him, the amount for which the land was sold, with interest thereon at seven per cent per annum from the day of sale. * * * We do not question the well-established rule that a tax title purchaser buys at his peril. The doctrine of caveat emptor applies to such a sale to its full extent. However circumscribed the rights of the tax title purchaser may be as compared with those of the land owner, the latter is not entitled to more than his legal rights. The infirmities of the tax title do not absolve the taxpayer from his obligation to do equity when he seeks equity. We agree that the tax title purchaser is entitled only to his pound of flesh in whatever form he demands it. But confining the tax title purchaser to his strict legal rights is one thing, and relieving the tax debtor from his just share of taxes at the expense of his neighbors is quite another. This ease is a fair illustration of the injustice resulting from adhering to the rule, heretofore in force in this state, of not requiring payment of just taxes as a condition pre cedent to relief in this class of eases. The owner of the land in this case has not paid a cent of tax on this property for more than twenty years. It is not claimed that any of the taxes were excessive or unfair, or that they otherwise infringed any of the land owner’s constitutional rights. The technical requirements of the law as to the procedure have not been followed with precision; and the land owner not only asks to have the tax sales set aside, but declines to pay or offer to pay a cent of the taxes which are confessedly just. Under the rule heretofore in force, he was sustained in that position. * * * By overturning the precedents on this question established by former decisions, we do not in any way disturb the rules by which the validity of past or future tax sales are to be tested. "We disturb no rights which are justly entitled to protection. It surely cannot be claimed „ that those who have neglected to pay their just taxes are in any position to invoke the doctrine of stare decisis to continued immunity from their obligation to do equity when they seek equitable relief. We are satisfied that public policy necessitates this modification of former decisions, and it is further justified by the fact that it restores in this state the rule recognized and applied in other jurisdictions. * * * Chapter 166, page 232, Laws of 1903, is an express legislative establishment of the rule we have been discussing. As indicated above, the court has inherent power, independent of such a statute, to do what the statute requires.”
In principle, the rule is stated and adopted by the following courts: Wagner v. Underhill, 71 Kan. 637, 81 Pac. 177; Hole v. Van Duzer, 11 Idaho, 79, 81 Pac. 109; Hart v. Smith, 44 Wis. 213; Smith v. Gage, 12 Fed. 32, 11 Biss. 217; Fenton v. Minnesota etc. Co., 15 N. D. 365, 109 N. W. 363; Phelps v. Harding, 87 Ill. 442; Denman v. Steinbach, 29 Wash. 179, 69 Pac. 751; Baldwin v. City of Elizabeth, 42 N. J. Eq. 11, 6 Atl. 275. (See, also, 2 Desty on Taxation, 901, 982; Black on Tax Titles, sec. 442.) Many other authorities might be cited in support of this doctrine, but those given are deemed sufficient. In some of the states statutes have been enacted requiring the enforcement of this rale, but the eases cited above were determined without reference to any statutory provision upon the subject.
The district court, however, erred in allowing interest at the rate of two per cent per month upon the payment made January 19, 1894. This is not a proceeding to redeem from a tax sale, and has not any of the characteristics of such a proceeding. The court should have allowed interest only at the legal rate. The form of the judgment or decree seems to have the approval of some of the authorities. We approve the action of the court in applying the maxim, “He who seeks equity must do equity,” but in our judgment, the logical result from the application of that maxim would seem to be that the payment of the several amounts should be made a condition precedent to plaintiffs’ right to the relief demanded. We think that the better practice would be in a ease of this kind, for the trial court to enter an order requiring the plaintiffs to make such payment within a reasonable time, say thirty days. If the payment is made, then the decree quieting the title should be made and entered; but if the payment be not made within the time allowed, then the plaintiffs should be denied any relief whatever.
The cause will be remanded to the district court for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was commenced by Johnston T. Hagerty against Elliott H. Wilson and others to recover damages for injuries alleged to have been sustained by the plaintiff; as the result of the negligence of the defendants.
During 1904 the Hypocka Mining Company, a foreign corporation, was operating the Minnie Healy mine, in Meaderville, Silver Bow county. The defendant Wilson was the superintendent at the mine, and was actively in charge of the business of the Hypocka Mining Company in Montana. The Hypocka Company had a working arrangement with the Montana Ore Purchasing Company, by which the latter company furnished its electricians to the former to do electrical work in the Minnie Healy mine. In the course of its mining operations in the Minnie Healy mine, the Hypocka Company caused, to be opened a particular shaft, designated in the pleadings and evidence as the “Chippie” shaft. This shaft was a comparatively new one and had been properly timbered, but on account of the swelling of the ground, caused by disintegration of the country rock and a consequent movement of the ground, the shaft was so compressed that for several months before the accident to Plagerty the cage running in that shaft had frequently stuck on its descent. To such an extent had the usefulness of the shaft been impaired that some time before Hagerty’s injury occurred the shaft had been condemned, the engineers on the engine operating the cage had been taken from their work, and the shaft thereafter was used principally for the purpose of repairing water-pipes and electrical apparatus in it. On July 26, 1904, the Hypoeka Company called upon the Montana Ore Purchasing Company for electricians to do some work in the “Chippie” shaft between the 1,000 and 1,100 foot levels. Hagerty, an electrician in the employ of the Montana Ore Purchasing Company, was detailed to do this work, and while so engaged, and on July 27, he was requested to make some repairs about the 600-foot level. It appears that, when this “Chippie” shaft was used, an engineer from elsewhere in the Minnie Healy mine was called to operate the engine which lowered and raised the cage. At the time Hagerty was injured, one Greenleaf, or Greenough, went on the engine to lower the cage. It does not appear at whose suggestion or direction this man assumed to act as engineer, for he was not in fact an engineer, and did not have a license to operate an engine. Plowever, he undertook to lower the cage with Hagerty and his helper, and, when it was between 500 and 600 feet from the surface, the cage struck, and, the engine not being stopped at once, from 10 to 25 feet of cable came down into the cage, which was not lighted, and coiled about the feet of Hagerty and his helper. After being thus suspended for some time, the cage finally worked through the pinched portion of the shaft by its own weight, and suddenly fell to the length of the slack cable. The cable had apparently become so coiled about one of Hagerty’s feet that, when the cage dropped, the cable practically cut off his foot, or at least injured it to such an extent that amputation was necessary. It appears that this dangerous condition of the “Chippie” shaft was known to Wilson, but was not known to Hagerty. In brief, these are the facts as disclosed by the record.
• There is not any disputed question of fact presented, for the defendants did not offer any testimony. A motion for nonsuit was sustained as to the Montana Ore Purchasing Company, and denied as to defendants Wilson and Ilypocka Company. The court was asked, but refused to give, instructions 4 and 9, but among others gave instruction No. 6. The instructions just referred to are as follows:
“No. 4. [Refused.] You are instructed that if the plaintiff entered the shaft at the time he was injured without the knowledge of the defendant Elliott H. Wilson, and by invitation or direction of some servant of the Hypocka Mining Company, other than said Wilson, and such person knew the condition of said shaft, your verdict should be for the defendant Wilson.”
“No. 9. [Refused.] You are further instructed that, if you find from the evidence that the injury would not have occurred except for the incompetency or negligence of the engineer in charge of the engine operating the cage in the shaft, then the condition of said shaft was not the proximate cause of the injury, and your verdict should be for the defendant Wilson.”
“No. 6. [Given.] You are instructed that, if the injury to the plaintiff was occasioned solely by the negligence or incompeteney of the engineer in charge of the hoisting engine operating the cage in the shaft in which the injury occurred, your verdict should be for the defendant Elliott H. Wilson.”
The jury returned a verdict in favor of the plaintiff and against the defendants Wilson and the Hypocka Mining Company, and, from the judgment entered thereon and from an order denying him a new trial, Wilson appeals.
We think that the proposed instruction No. 4 above was properly refused. Wilson’s own testimony, offered on behalf of plaintiff, discloses that he knew the condition of the “Chippie” shaft; knew that the cage stuck occasionally; knew that the sticking of the cage would endanger life or limb if -it got away as it did on the occasion of Hagerty’s injury; knew that men were going down the shaft between January and August, 1904, and, in fact, had gone through there occasionally himself. He knew, also, that Hagerty was working in the shaft on the day before he was injured. Under these circumstances the offered instruction was not applicable to the facts of the case. The determining factor is not whether Wilspn knew that Hagerty was making the particular trip which he did when he was injured, but whether he knew, or ought to have known, that Hagerty was working there at the time upon the invitation of the Hypocka Mining Company.
We think, also, that offered instruction No. 9 above was properly refused. No. 6, given, completely covers the same ground. There is not any difference between the two instructions in principle. The difference is in verbiage only. No. 6 merely gives emphasis to the fact that, if the negligence or ineompetency of the man operating the engine was the sole cause of the accident, then Wilson should be exonerated. No. 9 means the same thing.
But the principal contention arises over the refusal of the trial court to grant Wilson’s motion for a nonsuit. It is suggested that the evidence fails to disclose any negligence on the part of Wilson. It does appear that Wilson had spared neither pains nor money to keep the shaft open. He says that he had done all that could be done, except to close down the mine and retimber the shaft. But this conclusion of his is hardly justified by the evidence. There were other shafts adjoining the “Chippie” shaft, and in which the trouble did not appear, or, if it appeared at all, to a much less degree, and, these shafts being accessible one from the other at the different stations, men could have been lowered through one of the other shafts and brought up to the place of work through the “Chippie” shaft, as it appears that the cage would not stick in its ascent. But, even if the closing of the mine was a last recourse, we are not prepared to say that it was not Wilson’s duty to resort to it, rather than to invite this man to work in a known place of danger. The question whether Wilson exercised reasonable care to provide a reasonably safe place for the man to work was fairly submitted to the jury.
It is suggested, also, that, if the negligence or ineompetency of Greenleaf was the cause of the injury, Wilson cannot be held liable therefor, since Greenleaf was not the servant of Wilson, but was the servant of the Hypocka Company. We agree with this, and it appears to us that the trial court also adopted that theory, and gave emphasis to it in instruction No. 6 above. But the fact that the negligence of Greenleaf may have contributed to the injury does not profit Wilson if his negligence was a concurring cause. We think the jury must have reached the conclusion that the combined negligence of Wilson in maintaining the shaft and permitting its use under the circumstances as shown in this case, and of Greenleaf in lowering the cage, was the proximate cause of the injury.
But it is further suggested that, at most, Wilson was guilty of nonaction or omission of duty in failing to have the shaft in working order,'or in not forbidding its use to men not acquainted with its character, and that such omission or nonaetion amounts only to nonfeasance, for which he is not liable to a third person, but, if liable at all, he is only liable to the Hypocka Company, his principal, and that the maxim respondeat superior applies. If Wilson’s misconduct in permitting the shaft to be out of repair and in permitting its use while in such condition amounts only to nonfeasance, then the contention of his counsel may be well founded. But we are not able to agree with them in their conclusion. Some of the cases cited by counsel for appellant seem to bear out their theory and to justify the conclusion they reach. The courts and text-writers have not always been accurate in defining the terms “nonfeasance” and “misfeasance,” or in discriminating between them. As applied in eases of this character, we think the term “nonfeasance” refers to the omission on the part of the- agent to perform a duty which he owes to his principal by virtue of the relationship existing between them; but, whenever the omission on the part of the agent consists of his failure to perform a duty which he owes to third persons, then, as to such third persons, his omission amounts to “misfeasance,” for which he is responsible. We think this conclusion is based upon reason and authority.
Mechem in his work on Agency says: “Some confusion has crept into certain cases from a failure to observe clearly the distinction between nonfeasance and misfeasance. As has been seen, the agent is not liable to strangers for injuries sustained by them because he did not undertake the performance of some duty which he owed to his principal and imposed upon him by his relation, which is nonfeasance. Misfeasance may involve, also, to some extent the idea of not doing, as where the agent while engaged in the performance of his undertaking does not do something which it was his duty to do under the circumstances, does not take that precaution, does not exercise that care, which a due regard for the rights of others requires. All this is not doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation.” (Section 572.) The supreme court of Michigan in Ellis v. McNaughton, 76 Mich. 237, 15 Am. St. Rep. 308, 42 N. W. 1113, refers to and approves the language used by Meehem quoted above.
In 1 American and English Encyclopedia of Law, second edition, 1132, it is said: “Where the injury results * s * from such an omission of duty or act of negligence on the part of the agent as partakes of the character of a misfeasance, the agent is personally liable to third persons; the actual perpetrator of the positive wrong not being permitted to relieve himself from liability by showing that the wrong was done while he was acting in the course of his employment as agent for another.” And, as an instance wherein nonaction or negligence was held to amount to misfeasance, the writer of the text cites the case of Baird v. Shipman, 132 Ill. 16, 22 Am. St. Rep. 504, 23 N. E. 384, 7 L. R. A. 128. In that ease it appears that one Goodman, a resident of Hartford, owned land in Chicago with a house and barn situated thereon. The appellants, real estate agents in Chicago, were Goodman’s agents, and as such had control of his property there. The property.was leased to a Mrs. Wheeler, and at that time a large door to the barn was in a very insecure condition, which fact was known to the agents, who agreed to have it repaired, but failed to do so. An expressman seeking to deliver goods on the premises was killed by the barn door falling upon him. His personal representative brought the action to recover damages from the agents. They contended, as does Wilson here, that their omission amounted only to a nonfeasance, for which they were responsible to their principal only; but the court took a different view, and, among other things, said: “An agent is liable to his principal only for mere breach of his contract with his principal. He must have due regard to the rights and safety of third persons. He cannot in all cases find shelter behind his principal. If, in the course of his agency, he is intrusted with the operation of a dangerous machine, to guard himself from personal liability he must use proper care in its management and supervision, so that others in the use of ordinary care will not suffer in life, limb, or property. (Suydam v. Moore, 8 Barb. (N. Y.) 358; Phelps v. Wait, 30 N. Y. 78.) It is not his contract with the principal which exposes him to or protects him from liability to third persons, but his common-law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency, nor can its breach be excused by a plea that his principal is chargeable. (Delaney v. Rochereau & Co., 34 La. Ann. 1123, 44 Am. Rep. 456.)” After referring to the rule as stated by Meehem and Wharton, the opinion proceeds: “The rule, whether as stated by Meehem or Wharton, is sufficient to charge appellants with damages under • the circumstances disclosed in this record. They had the same control of the premises in question as the owner would have had if he had resided in Chicago and attended to his own leasing and repairing. In that respect appellants remained in control of the premises until the door fell upon the-deceased. There was no interruption of the causal relation between them and the injured man. They were in fact, for the-time being, substituted in the place of the owner, so far as the control and management of the property was concerned. * * * When appellants rented the premises to Mrs. Wheeler in the-dangerous condition shown by the evidence, they voluntarily set in motion an agency which, in the ordinary and natural. course of events, would expose persons entering the barn to personal injury. Use of the barn for the purpose for which it was used when the deceased came to his death was one of its ordinary and appropriate uses, and might, by ordinary foresight, have been anticipated.” This case is cited and the doctrine announced approved in Mayer v. Thompson-Hutchinson Bldg. Co., 104 Ala. 611, 53 Am. St. Rep. 88, 16 South. 620, 28 L. R. A. 433.
Did Wilson in fact owe a duty to Hagerty? In Cameron v. Kenyon-Connell Com. Co., 22 Mont. 312, 74 Am. St. Rep. 602, 56 Pac. 358, 44 L. R. A. 508, it is said: “Because directors are themselves agents it is none the less true that they owe a common-law duty to third persons. If they violate that duty, they are responsible, whether the violation is the result of a wrongful omission or commission. * * * Relationship of contract to a corporation neither adds to nor subtracts from a man’s duty to strangers to so use his own property, or that under his control, as not to injure another.” The record in this case would seem to justify the same statement as that contained in the opinion of the Illinois court above: That Wilson had the same control at the Minnie Healy mine, so far as the management was concerned, as the owner, the Hypoeka Company, would have had if it had been a natural person residing here and attending to the management himself.
In harmony with the declaration of this court in the Cameron Case above is the doctrine announced by the supreme court of Massachusetts in Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437, where, after considering and overruling a former decision of the same court, it is said: “The principal reason assigned was that no misfeasance or positive act of wrong was charged, and that for nonfeasance, which was merely negligence in the performance of a duty arising from an express or implied contract with his principal or employer, an agent or servant was. responsible to him only, and not to any third person. It is often said in the books that an agent is responsible to third persons for misfeasance only, and not for nonfeasance. And it is doubt less true that if an agent never does anything toward carrying ont his contract with his principal, but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance. But, if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance, or doing nothing; but it is misfeasance, doing improperly.” And to the same general effect is Breen v. Field, 157 Mass. 277, 31 N. E. 1075.
In Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503, the court said: “It is the actual personal negligence of the agents which constitutes the constructive negligence of the corporation. The corporation acts through and by them, and they act for the corporation, and, when their acts or neglects result in injury to third parties, they are equally responsible with their principals. ”
The supreme court of Georgia in Southern Ry. Co. v. Reynolds, 126 Ga. 657, 55 S. E. 1039, announced the same rule in the following language: “When once an agent enters upon the performance of his contract with his principal, and, in doing so, omits or fails to take reasonable care in the commission of some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf.”
" In Ellis v. Southern Ry. Co., 72 S. C. 465, 52 S. E. 228, 2 L. R. A., n. s., 378, the supreme court of South Carolina, after an extended review of the authorities, said: ‘ ‘ The true rule deducible from the authorities is that the servant is personally liable to third persons when his wrongful act is the direct and proximate cause of the injury, whether such wrongful act be one of nonfeasance or misfeasance.” In Lough v. John Davis & Co., 30 Wash. 204, 94 Am. St. Rep. 848, 70 Pac. 491, 59 L. R. A. 802, the same conclusion is reached by the supreme court of Washington.
In Southern Ry. Co. v. Grizzle, 124 Ga. 735, 110 Am. St. Rep. 191, 53 S. E. 244, the court said: “Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent’s liability in such cases is not based upon the ground of his agency, but upon the ground that he is a wrongdoer, and as such he is responsible for any injury he may cause. When once he enters upon the performance of his contract with his principal, and in doing so omits or fails to take reasonable care in the commission of some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. (See 2 Clark & Skyles on Agency, 1297 et seq.) Misfeasance may involve also to some extent the idea of not doing, as where an agent engaged .in the performance of his undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires. All this is not doing, but it is not the not .doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation.”
In 1 Jaggard on Torts, 289, the author, after referring to the conflicting decisions upon this subject, says: “The futility of such reasoning on the word ‘nonfeasance’ appears fully from the lack of definiteness of the meaning to be given the term. This solemn legal jugglery with words will probably disappear if the nature of the duty incumbent upon the servant be considered. If the servant owe a duty to third persons derived from instrumentality likely to harm or otherwise, and he violates that duty, he is responsible. His responsibility rests on his wrongdoing, not on the positive or negative character of his conduct. A wrongful omission is as actionable as a wrongful commission.”
Finally, it is earnestly contended that the negligence or ineompetency of Greenleaf was the active and efficient cause of the injury, and that but for such negligence or incompetency the injury would not have occurred, even conceding that Wilson was negligent in permitting the shaft to remain out of order, and in permitting its use while in such condition; or, in other words, that Wilson’s negligence was not a proximate cause of the injury. But we cannot concede that the mere fact that a skillful engineer, acquainted with the habits of this shaft, who knew that the cage was likely to stick and was constantly on the lookout for such an occurrence, could have stopped the engine in time to prevent the cable from running into the cage, does as a matter of law stamp the act of Greenleaf as one which broke the chain of causation between Wilson’s prior negligence and Hagerty’s injury, or insulated Wilson’s negligence from the plaintiff’s hurt, and thereby discharged him (Wilson) from all liability therefor. We think that the question whether Wilson’s negligence was a proximate cause of the injury was one of fact, which was properly submitted to the jury.
We find no error in the record. The judgment and order are affirmed.
Affirmed.
Mr. Chibe Justice Brantly and Mr. Justice Smith concur.
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MR. JUSTICE SMITH
delivered the opinion of the court.
The amended complaint in this action alleges that the plaintiff is the owner of a certain water right in Confederate creek, Broadwater county, which has heretofore been decreed to him by the district court of Meagher county; that in the year 1905 the defendants wrongfully diverted the water from plaintiff’s ditch, and deprived him of the-use thereof, to his damage, in loss of crops, in the sum of $400. Plaintiff further alleges as follows: “Plaintiff further avers that he was further damaged by the said acts of defendants in depriving him of water to which he was lawfully entitled, in that in his efforts to obtain the water so withheld he on or about the 30th day of August, 1905, in, the district court of Broadwater county, instituted contempt proceedings against the defendants herein, in a case entitled State of Montana ex rel. John Dunlavey v. Jefferson Doggett and Gus E. Pool, in which said contempt proceedings defendants herein were adjudged guilty of violating the restraining order of the court, which said restraining order was included in the said decree awarding the said water to plaintiff. The said order of the district court of Broadwater county adjudging defendants guilty of contempt of court was thereafter appealed by said defendants to the supreme court of the state of Montana and was by said court affirmed. Plaintiff in the prosecution of said contempt proceedings and in his efforts thereby to secure the water to which he was rightfully entitled necessarily incurred in attorney’s fees, witness fees, court costs, and other expenses necessarily incident to a lawsuit an expense of four hundred and fifty dollars ($450).”
The court below in effect sustained a general demurrer to this so-called second cause of action by striking the same after demurrer sustained to substantially the same allegations in the original complaint, and refused to allow plaintiff to introduce any testimony in support of it, although he offered to prove that he necessarily expended t'he reasonable sum of $150 for attorney’s fees in prosecuting the contempt proceedings in the district court and $250 in successfully resisting, at the request of the district court, a writ of review sued out' of this court to annul the judgment in the contempt proceedings (see State ex rel. Pool v. District Court, 34 Mont. 259, 86 Pac. 798), and also offered to prove that he necessarily paid a notary public t'he sum of $18 for taking the deposition of a witness in the contempt matter, and the further sum of $8 was expended by him in going to the county seat to consult' counsel as to what steps should be taken to regain possession and the use of the water taken by defendants. The cause went to trial on the so-called first cause of action, and resulted in a general verdict in favor of the defendants. From a judgment on this verdict and an order denying a new trial, plaintiff has appealed.
The only question presented for review is whether the district court was correct in holding, as a matter of law, that the plaintiff could not recover the items of special damages which he offered to prove. It' is a somewhat novel question, and presents some difficulties. Indeed, the industry of counsel for neither side has been rewarded by the discovery of one just like it in the books. It is contended by the appellant that all of these sums were necessarily expended in recovering the use of the water, and should have been allowed as damages, by virtue of sections 6068 and 6069, Revised Codes, which read as follows;
“Sec. 6068. For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
“See. 6069. The detriment caused by the wrongful occupation of real property, in cases not embraced in sections 6070, 6076, and 6077 of this Code, or provided in the Code of Civil Procedure, is deemed to be the value of the use of the property for the time of such occupation, not exceeding five years next preceding the commencement of the action or proceeding t'o enforce the right to damages, and the costs, if any, of recovering the possession.”
Counsel also quote section 6071, Revised Codes, which provides that the detriment caused by the wrongful conversion of personal property “is presumed to be (2) a fair compensation for the time and money properly expended in pursuit of the property”; but we do not think this section is at all applicable to the case at bar. The following is a quotation from the appellant’s brief: “Under these statutes, if the expenditure claimed be a ‘detriment proximately caused’ by the willful and wrongful seizure of the plaintiff’s water, it is expressly declared to be legally recoverable damage. Any outlay not regained is, of course, a ‘detriment.’ ”
The court is of opinion that proceedings for contempt are in no sense actions either for the wrongful conversion of personal property or for the wrongful occupation of real property. “The object of the power to punish by process of contempt is to enforce obedience and respect to the authority of the court.” (In re MacKnight, 11 Mont. 126, 28 Am. St. Rep. 451, 27 Pac. 336.) The proper way for a district court to enforce its order, theretofore made, adjusting water rights between claimants entitled thereto, is by contempt proceedings upon the filing of an affidavit showing a disregard of the order. (State ex rel. Pew v. District Court, 34 Mont. 233, 85 Pac. 525.) Contempt proceedings under the Code of Civil Procedure.are sui generis, and have most, if not all, of the characteristics of a criminal case, and few, if any, of a civil action. (State ex rel. Boston & Montana Con. C. & S. Min. Co. v. Judges, 30 Mont. 193, 76 Pac. 10.) If the person proceeded against is found guilty, a fine may be imposed on him, not exceeding $500, or he may be imprisoned not exceeding five days, or both (Revised Codes, sec. 7318). And no additional penalty may be imposed. (In re Sutton, 26 Mont. 557, 71 Pac. 1132.) “The proceeding in contempt is distinct from the action wherein the injunction violated was issued. Vindication of the dignity of the authority of the ■court is the object to be attained in the matter, and not indemnity for the plaintiff in the civil suit. Judgment' cannot go in favor of the plaintiff in the civil action had, unless authority to enter such a judgment exists by law. There is no statute granting such authority under the Codes. Nor was there power in the court to enter a judgment for costs. Statutory power to punish for contempt by fine and imprisonment for disobedience of an injunction order is limited by the manner in which the statute says the power shall be exercised. * * * The costs * * * must be paid from any fine imposed.” (State ex rel. Flynn v. District Court, 24 Mont. 33, 60 Pac. 493.)
These contempt proceedings being sui generis and complete in themselves, it seems to follow that they cannot be changed by construction into actions for the wrongful conversion of personal property or for the wrongful occupation of real property, and consequently those statutes fixing the measure of damages in such actions have no application. When the dignity of the authority of the court' has been vindicated, the proceeding has served its purpose. Moreover, those statutes refer in their terms to damages and costs which may be recovered in the same action, and it will probably not be contended that in such actions the defendant can be compelled to pay the plaintiff’s attorney’s fees. (13 Cyc. 80.)
The rule laid down in the ease of Plymouth Gold M. Co. v. United States Fidelity Co., 35 Mont. 23, 88 Pac. 565, is founded upon a statute commanding that, before a writ of attachment shall issue, the plaintiff must enter into a written contract with the defendant, conditioned that, if the defendant recover judgment or the court' shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by reason of the issuance of the attachment'. (See Revised Codes, see. 6659.)
The learned counsel for the appellant have called our attention to other cases in which recovery of counsel fees paid was allowed as damages proximately caused by the breach of duty on the part of the defendants. We are not prepared to say, because it' is not necessary, that eases may not arise wherein attorney’s fees necessarily expended may not be recovered in a second action as compensatory damages, although we think of none at present save those expressly authorized by statute. What we do hold is that contempt proceedings do not furnish a remedy available t'o the plaintiff for the redress or prevention of a private wrong. While such proceedings may have the result of deterring the defendants from again interfering with plaintiff’s rights, still the object to be attained is vindication of the dignity of t'he authority of the court, and not indemnity for the plaintiff or any judgment in his favor. (State ex rel. Flynn v. District Court, supra.)
Again, it is urged that because in practice contempt proceedings are always instituted at the expense of the owner of the water, he is the one primarily interested, and should be reimbursed for his expenditures in connection therewith. It is undoubtedly true that many owners do find themselves in an unfortunate situation when their water rights are violated; but this is a subject for the legislature to deal with.
We hold that, in the absence of a statute, such expenses can- ■ not be recovered in this action. And this applies as well to the item of $8 as t'o the other sums, because it is impossible to read the amended complaint and the offer of proof without arriving at the conclusion that this sum was expended in furtherance of the same general purpose as were the other sums, to-wit, to get the defendant's punished for contempt of court.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
Per Curiam.
Relators’ petition for permission to file a complaint herein in the nature of a quo warranto proceeding, submitted on December 3, 1908, is hereby denied.
|
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] |
JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The Petitioner, Ronald Jer Niederklopfer, filed a petition for postconviction relief in the Fourth Judicial District Court in Missoula County, in which he challenged his sentence because the State failed to give him timely notice that it sought to designate him a persistent felony offender. Niederklopfer appeals the District Court’s denial of his petition. We affirm the order of the District Court.
¶2 The following issue is raised on appeal:
Did the District Court err when it denied Niederklopfer’s petition for postconviction relief?
FACTUAL BACKGROUND
¶3 On January 8,1996, the State charged Niederklopfer with deliberate homicide in violation of § 45-5-102, MCA, for the death of Tambi Weinberger.
¶4 On June 19,1996, the District Court conducted Niederklopfer’s omnibus hearing. A few weeks later, on July 1,1996, the State filed its “Notice of Intent to Seek Increased Punishment,” to notify Niederklopfer that it sought to designate him a persistent felony offender.
¶5 On August 6,1996, Niederklopfer signed a document entitled “Plea of Guilty and Waiver of Rights,” in which he wrote: ÍWhile under extreme emotional stress I caused the death of Tambi Weinberger -1 kicked her in the head and caused other injuries from which she died.” Niederklopfer also acknowledged his maximum possible punishment, and that the State sought to designate him a persistent felony offender, he wrote:
The maximum possible punishment provided by law for the above-named offenses is: Count 140 yrs MSP [] or $50,000 also up to 100 years for persistent felony offender.
Pursuant to the plea agreement the State amended the Information and charged Niederklopfer with mitigated deliberate homicide in violation of § 45-5-103, MCA. The State also agreed to dismiss a felony-assault charge and a misdemeanor assault charge pending against Niederklopfer. The State recommended a prison term of 80 years as a persistent felony offender, and that the District Court order that Niederklopfer not be eligible for parole for 40 years. On September 25, 1996, the District Court sentenced Niederklopfer in compliance with the plea agreement.
ISSUE
¶6 Did the District Court err when it denied Niederklopfer’s petition for postconviction relief?
STANDARD OF REVIEW
¶7 On appeal from denial of postconviction relief, we review a district court’s findings to determine if they are clearly erroneous, and the district court’s conclusions to determine if the court correctly applied the law. State v. Wilson, 1999 MT 52, ¶ 11,293 Mont. 429, ¶ 11, 976 P.2d 962, ¶ 11.
¶8 Section 46-21-101(1), MCA, provides:
A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence to vacate, set aside, or correct the sentence or revocation order.
¶9 Niederklopfer contends that the portion of his sentence imposed because he was designated a persistent felony offender was unlawful because the State failed to comply with the notice provisions of § 46-13-108, MCA, before designating him a persistent felony offender pursuant to § 46-18-501, MCA. Niederklopfer also contends that because his trial counsel failed to object to the State’s lack of compliance with the notice provision of § 46-13-108, MCA, he was denied effective assistance of counsel. The State responds that when Niederklopfer voluntarily and intelligently pled guilty, he waived his right to challenge the State’s failure to comply with § 46-13-108, MCA. The State also contends that the timing of its notice did not prejudice Niederklopfer.
¶10 Section 46-13-108, MCA, provides:
(1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110.
(2) The notice must specify the alleged prior convictions and may not be made known to the jury before the verdict is returned except as allowed by the Montana Rules of Evidence.
(3) If the defendant objects to the allegations contained in the notice, the judge shall conduct a hearing to determine if the allegations in the notice are true.
(4) The hearing must be held before the judge alone. If the judge finds any allegations of the prior convictions are true, the accused must be sentenced as provided by law.
(5) The notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is given by the defendant.
(Emphasis added.) “The purpose for providing such notice is to give the defendant an opportunity to file an objection to the criminal record relied upon in the notice and to hold a hearing should there be any such objections. See § 46-13-108(3),(4), MCA.” State v. McQuiston (1996), 277 Mont. 397, 408, 922 P.2d 519, 526. Pursuant to both the Fourteenth Amendment to the United States Constitution and Article II, section 17 of the Montana constitution, no person shall be deprived of life, liberty, or property without due process of law. “The fundamental requisite of due process of law is the opportunity to be heard.” Goldberg v. Kelly (1970), 397 U.S. 254, 267, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287 (quoting Grannis v. Ordean (1914), 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363). Further, due process requires timely and adequate notice. Goldberg, 397 U.S. at 267, 90 S. Ct. at 1020.
¶11 In McQuiston, we interpreted § 46-13-108, MCA, and concluded that the State complied with § 46-13-108(1), MCA, but it did not comply with § 46-13-108(5), MCA; that is, the State notified McQuiston of its intent to designate him a persistent felony offender, but it did not file notice with the district court. McQuiston, 277 Mont. at 408, 922 P.2d at 526. We held:
McQuiston was sent notice of the State’s intent to seek persistent felony status over a month prior to the omnibus hearing and five months before trial. Furthermore, the notice was filed with the District Court five months prior to sentencing. We conclude that McQuiston was not prejudiced by the State’s failure to file notice of its intent to treat McQuiston as a persistent felony offender prior to trial.
McQuiston, 277 Mont. at 409, 922 P.2d at 527. Our conclusion in McQuiston was based on State v. Madera (1983), 206 Mont. 140, 154, 670 P.2d 552, 559, where we interpreted a previous version of the persistent felony offender statute. Based on the statutory scheme in effect when we decided Madera, the State was required to notify the defense of its intent to seek persistent felony offender status prior to entry of a guilty plea or before trial. There was no good cause exception. The State was also required to file a notice with the court before sentencing. Madera, 206 Mont. at 154, 670 P.2d at 559; see also State v. Hawkins (1989), 239 Mont. 404, 407,781 P.2d 259,261. The defendant in Madera had received written notice before trial but claimed the second notice was deficient. We stated that the first notice to the defense was jurisdictional while the second notice to the court was simply procedural. Madera, 206 Mont. at 155, 670 P.2d at 560. We held that the State’s failure to file the second notice was not prejudicial since the defendant had sufficient notice of the charge against him. We stated:
It is obvious from section 46-18-503, MCA, that the jurisdictional notice upon which the persistent felony designation must be founded is the first notice required to be given either before the entry of plea of guilty or before the case is called for trial upon a plea of not guilty. The record here positively indicates that the first notice was given. The second notice, however, is procedural rather than jurisdictional.
Madera, 206 Mont. at 155, 670 P.2d at 560.
¶12 Niederklopfer contends that since the State failed to provide him with timely notice that it sought to designate him a persistent felony offender, we must vacate that portion of his sentence attributable to his status as a persistent felony offender. The State responds that when Niederklopfer pled guilty he waived his right to challenge any constitutional or procedural defects.
¶13 A guilty plea that is voluntary and intelligent constitutes a waiver of nonjurisdictional defects and defenses. State v. Wheeler (1997), 285 Mont. 400, 402-03, 948 P.2d 698, 699; In re Petition of Hinman (1995), 271 Mont. 167, 168, 895 P.2d 609, 609 (citing Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387). Our reasoning in Hagan was based on two cases, State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788 and Tollett v. Henderson (1973), 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235. In Turcotte we said:
The general rule is that a plea of guilty voluntarily and understandingly made constitutes a waiver of nonjurisdictional. defects and defenses, including claims of violations of constitutional rights prior to the plea. The reasoning is that a person pleading guilty is convicted and sentenced on his plea, not on the evidence.
164 Mont. at 428, 524 P.2d at 788. In Tollett the United States Supreme Court provided the following reasoning:
We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.
411 U.S. at 267, 93 S. Ct. at 1608, 36 L. Ed. 2d at 243.
¶14 In this case, the District Court had jurisdiction to consider Niederklopfer a persistent felony offender when the State filed and served its notice of intent to designate Niederklopfer a persistent felony offender on July 1, 1996. Under our current statutory scheme, timeliness of the notice was not jurisdictional. The late notice was a procedural defect.
¶15 Niederklopfer, however, did not object when the State filed its notice late. Thus, when Niederklopfer pled guilty and admitted that he committed mitigated deliberate homicide, he waived his challenge to any constitutional or procedural defects; including timeliness of the State’s notice.
¶16 We do not address in this opinion whether the District Court would have had jurisdiction to consider persistent felony offender status, had notice not been given before the plea was entered or a trial commenced.
¶17 Further, Niederklopfer does not assert that his plea was involuntary or that he lacked knowledge of the consequence of being desig nated a persistent felony offender. On his “Plea of Guilty and Waiver of Rights,” he wrote:
The maximum possible punishment provided by law for the above-named offenses is: Count 140 yrs MSP [] or $50,000 also up to 100 years for persistent felony offender.
Therefore, when Niederklopfer entered his voluntary and intelligent plea on August 6, 1996, he waived his right to challenge the timeliness of the State’s notice pursuant to § 46-13-108, MCA.
¶18 Niederklopfer also argues that his counsel's failure to object to the State’s failure to file notice in compliance with § 46-13-108, MCA, was a denial of his right to effective assistance of counsel. The two-part test for ineffective assistance of counsel was established in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. We adopted the Strickland test in State v. Boyer (1985), 215 Mont. 143, 695 P.2d 829.
¶19 The first question of the Strickland test is whether counsel acted within the range of competence demanded of attorneys in criminal cases. Bone v. State (1997), 284 Mont. 293, 303, 944 P.2d 734, 740. A defendant must overcome the presumption that under the circumstances the action which he challenges might be considered sound trial strategy. Bone, 284 Mont. at 303, 944 P.2d at 740. Counsel’s trial tactics and strategic decisions cannot be the basis upon which to find ineffective assistance of counsel. Bone, 284 Mont. at 303, 944 P.2d at 740.
¶20 The second prong of the Strickland test is the question of whether counsel’s deficient performance prejudiced the defense so as to deny the defendant a fair trial. Bone, 284 Mont. at 303, 944 P.2d at 740. We use the Strickland standard when reviewing claims of ineffective assistance of counsel in petitions for postconviction relief. Bone (1997), 284 Mont. at 304, 944 P.2d at 740. The Strickland standard applies in the context of guilty pleas. Bone, 284 Mont. at 304, 944 P.2d at 740; citing Hill v. Lockhart (1985), 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203. In Hill, the United States Supreme Court said:
[I]n order to satisfy the prejudice requirement [of the Strickland test], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have plead guilty and would have insisted on going to trial.
474 U.S. at 59, 106 S. Ct. at 370. The defendant in Hill sought federal habeas relief on the ground that his court-appointed attorney had failed to advise him that, for a second offense, he was required to serve one-half of this sentence before being eligible for parole. 474 U.S. at 53, 106 S. Ct. at 367. The Court held:
Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.
Hill, 474 U.S. at 60,106 S. Ct. at 371.
¶21 In this case, Niederklopfer was originally charged with deliberate homicide, a felony, in violation of 45-5-102, MCA. The penalty for deliberate homicide is death, life imprisonment, or a term of not less than 10 years or more than 100 years. Section 45-5-102(2), MCA. Niederklopfer also was charged with felony assault and misdemeanor assault. Pursuant to the plea agreement, Niederklopfer agreed to plead guilty to mitigated deliberate homicide and to be designated a persistent felony offender. The State agreed to dismiss its charges of deliberate homicide, felony assault, and misdemeanor assault. It also agreed to propose a prison term of 80 years, with no parole eligibility until 40 years has been served.
¶22 Like the petitioner in Hill, Niederklopfer did not allege in his petition that, had counsel informed him that the State filed a late notice of its intent to designate him a persistent felony offender, he would have pled not guilty and insisted on going to trial. He does not ask that we set aside the guilty plea. Rather Niederklopfer asks that we vacate that portion of his sentence that was attributable to his status as a persistent felony offender. Because he does not allege that a different result would follow, he has not satisfied the second prong of the Strickland test.
¶23 Since Niederklopfer waived his right to object to the State’s procedural violation of § 46-13-108, MCA, when he pled guilty and because Niederklopfer failed to allege that he would have gone to trial but for his counsel’s failure, we conclude that the District Court did not err when it denied Niederklopfer’s petition for postconviction relief.
¶24 Accordingly, we affirm the order of the District Court.
JUSTICES GRAY, REGNIER, HUNT and LEAPHART concur.
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Rob Grabow appeals an order in which the First Judicial District Court, Lewis and Clark County, denied his request for a preliminary injunction preventing the Montana High School Association (MHSA) from enforcing its decision that he was ineligible to play high school basketball during the 1999-2000 school year. In December of 1999, this Court enjoined MHSA from preventing Grabow from playing basketball during the pendency of this appeal. We now dismiss the appeal as moot and remand for further proceedings.
¶2 Grabow sets forth the following issues:
¶3 1. Whether the District Court erred in ruling that MHSA’s Eight Consecutive Semester Rule is reasonable and that the government’s interest in enforcing the rule outweighs Grabow’s constitutionally protected right to participate in extracurricular activities.
¶4 2. Whether the non-delegation doctrine precludes MHSA, a private nonprofit corporation, from rule-making and adjudicating absent a clear legislative mandate.
¶5 3. Whether Grabow is entitled to reimbursement for his attorney fees in equity and under the private attorney doctrine.
¶6 In the fall of 1999, Rob Grabow enrolled as a senior at Park High School in Livingston, Montana. Upon enrolling, he was assured that he would be eligible to participate in basketball during the school year because he had not yet turned nineteen years of age and had not competed four consecutive years in any sport.
¶7 Grabow had attended several different schools during his high school career. He spent his freshman year, 1995-96, at North Pole High School in Alaska. In 1996-97, he was enrolled as a sophomore in a Fairbanks, Alaska high school where he played basketball. During the 1997-98 school year, Grabow attended a Port Angeles, Washington high school, where he also played basketball. In 1998-99, Grabow was a Rotary exchange student in Germany.
¶8 After Grabow enrolled at Park High School, he was informed that MHSA’s executive director had determined that he could not participate in basketball, because of MHSA’s semester rule. The semester rule states:
A student will be eligible to participate in Association Contests for four (4) consecutive years [eight (8) consecutive semesters] after entering the ninth grade or after qualifying for participation under Article II, Section (6) B (7th-8th grade waiver process). An attendance of twenty (20) days during a ninth grader’s first semester in high school constitutes his/her first semester of attendance. A ninth grader who attends fewer than twenty (20) days in his/her first semester of high school does not begin his/her eight (8) consecutive semesters unless he/she has participated during this time in an Association contest. Such a period of fewer than twenty (20) days is not considered to be “the last previous semester attended” under Section (3).
Article II, Section (9), Montana High School Association 1999-2000 Official Handbook. MHSA’s executive director reasoned that Grabow’s seventh and eighth semesters of sports eligibility had elapsed while he was in Germany.
¶9 Grabow requested a hearing before MHSA’s Board of Control to determine whether he was exempt from the semester rule under a provision allowing for waiver “in case of emergency or where extenuating circumstances are involved.” He argued that waiver was justified because of his mother’s serious illness during his freshman year, which prevented him from participating in sports, together with his year spent abroad. The Board voted to deny Grabow’s request and later denied his request for reconsideration of that decision.
¶10 Grabow then filed a complaint asking the District Court for declaratory rulings that MHSA lacks rule-making and adjudicatory authority and that the semester rule is unconstitutional as applied to him. He further requested a hearing on whether a preliminary injunction should be issued precluding enforcement of MHSA’s ruling until his case could be adjudicated on its merits.
¶11 At the preliminary injunction hearing, Grabow, his mother, three MHSA representatives, and the superintendent of the Livingston schools testified. The court’s subsequent written order stated that there was no unlawful delegation of authority from school trustees to MHSA in regard to the decision not to waive the semester rule. The court further stated that the semester rule and its application in this case were more important than Grabow’s interest in trying out for the basketball team. Concluding that it was unlikely Grabow would ultimately prevail in his action, the District Court denied his request for a preliminary injunction. From that order, Grabow appeals.
¶12 In connection with his appeal, Grabow filed a Rule 40, M.R.App.P., application asking this Court to grant an injunction prohibiting enforcement of MHSA’s decision pending final disposition of this appeal. This Court granted that request on December 23, 1999, and also permanently enjoined MHSA from penalizing Grabow, his basketball team, or his high school if the preliminary injunction was later dissolved or set aside. As a result of that ruling, Grabow participated on the varsity basketball team for Park High School during the 1999-2000 basketball season.
¶13 Briefing of the appeal was completed in March 2000. At that time, we requested and received supplemental briefs from the parties as to whether this appeal had become moot. For the reasons discussed below, we conclude that it has.
Discussion
¶ 14 Mootness is a threshold issue which must be resolved before addressing the underlying dispute. Shamrock Motors, Inc. v. Ford, 1999 MT 21, ¶ 17, 293 Mont. 188, ¶ 17, 974 P.2d 1150, ¶ 17.
A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy. A question is moot when the court cannot grant effective relief. If the parties cannot be restored to their original position, the appeal becomes moot.
Shamrock Motors, at ¶ 19 (citations omitted). As indicated above, the Court has sua sponte raised the issue of mootness of this case.
¶15 In their supplemental briefs on this issue, the parties all assert that they retain actual and concrete interests in the outcome of this matter and that the issues therefore are not moot. Alternatively, they assert that this is a proper case for application of the exception to the mootness doctrine for constitutional questions which are capable of repetition yet which could evade review. This exception recognizes that the amount of time inherent in the litigation process renders it nearly impossible in some cases for a final judicial decision to be reached before the case is rendered moot. In such circumstances, because application of the mootness doctrine would effectively deny the remedy of appeal, a court will agree to issue a decision even after the actual controversy has been resolved. See Common Cause of Montana v. Statutory Committee (1994), 263 Mont. 324, 328, 868 P.2d 604, 606-07.
¶16 This case is similar to Van Troba v. Montana State University, 1998 MT 292, 291 Mont. 522, 970 P.2d 1029. Van Troba had been ruled ineligible to compete in a college basketball program during her freshman year. She applied for and was granted a district court’s preliminary injunction prohibiting enforcement of that ruling. The National Collegiate Athletic Association, which promulgated the rules under which Van Troba had been declared ineligible to play basketball, appealed. By the time we considered the appeal, however, Van Troba had completed her freshman year of college, during which she had played basketball pursuant to the district court injunction. Stating that we normally do not address moot questions, we denied review of the preliminary injunction. Van Troba, at ¶ 40. We noted, however, that the underlying claim remained as to whether Van Troba should have been ineligible and that the district court retained the ability to render a final judgment on the merits of that question, for which purpose we remanded the case. Van Troba, at ¶ 44.
¶17 We distinguished Van Troba from an earlier case, J.M. v. Montana High School Ass’n (1994), 265 Mont. 230, 875 P.2d 1026, upon which MHSA relies here. J.M. involved the question of a high schooler’s eligibility to play sports vis a vis an MHSA rule known as the “four-season rule.” The district court had granted a preliminary injunction permitting J.M. to participate in sports during the pen-dency of the appeal by MHSA. This Court reversed the district court’s preliminary injunction order despite objections that after the completion of the athletic season the issues had become moot. Our decision was based upon our determination that J.M. had not offered evidence as to an element of proof necessary in order to establish that he had a right to a hearing on waiver of the rule. Under those circumstances, we stated that MHSA had a right to a final decision on the merits of its appeal. J.M., 265 Mont. at 241-42, 875 P.2d at 1033. In addition, we remanded the case to district court for decision on other issues raised in J.M.’s complaint which had not yet been decided. J.M., 265 Mont. at 242, 875 P.2d at 1033.
¶18 In the present case, the 1999-2000 basketball season was the only one in which Grabow claimed he had a future right to participate, and that season has now been completed. The initial grounds for application of the mootness doctrine to the preliminary injunction issue have therefore been met. And, in contrast to J.M., there has been no argument here that Grabow failed to meet the minimal standard of proof allowing him to petition for a waiver of the relevant MHSA rule. Inasmuch as they relate to the District Court’s refusal to issue a preliminary injunction, we decline to consider the questions raised in Grabow’s Issues 1 and 2, because those issues are now moot. In fact, we conclude that Issue 1 is now completely moot, and given that it relates to a waiver decision based upon Grabow’s particular circumstances, is not one capable of repetition.
¶19 The District Court’s conclusion referenced in Issue 2 relates to a subject raised in Grabow’s request for declaratory judgment and upon which the District Court has not yet rendered a judgment. To the extent that this conclusion may be read to relate to that request for declaratory judgment, it was premature. After the District Court enters final judgment on Grabow’s petition for declaratory judgment, that judgment will be subject to appeal. In fight of all parties’ assertions that this case continues to represent a five controversy, we conclude that this issue is not one capable of repetition but which will evade review. We therefore decline to address Issue 2 further at this time.
¶20 Given that this case has not been finally decided, Grabow’s claim that he is entitled to be awarded his attorney fees is also premature. We therefore deny Grabow’s request for attorney fees, without prejudice.
¶21 We remand this case to the District Court for further consideration of the merits of Grabow’s complaint for declaratory judgment.
JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Appellant 360 Ranch, Inc. (360) appeals from the March 18, 1999 Findings of Fact, Conclusions of Law, and Order of the Eighteenth Judicial District Court, Gallatin County, quieting title to certain property in favor of Respondents William Tester, Stephen Tester, and Patricia Walch (the Testers), and against 360. We reverse.
¶2 360 raises the following issues on appeal:
I. Did the District Court err in awarding judgment quieting title to the disputed property in favor of Testers and against 360?
II. Did the District Court err in awarding costs of suit to the Testers?
STATEMENT OF FACTS
¶3 At the heart of this quiet title action lies a boundary dispute. The Testers and 360 each own property in Section 17, Township 1 North, Range 7 East of the Montana Principal Meridian. The property is located in Bridger Canyon, just north of Bozeman, Montana. Generally speaking, the Testers own land in the east half of the Section while 360 owns land in the west half. Two roads of public record run through the Section in a north-south direction. One is the 1891 County Road (County Road), the other is the 1948 State Highway (State Highway).
¶4 In 1891, the Gallatin County Commissioners adopted as the official County Road an existing road which ran in a north-south direction through Bridger Canyon. The official location of the County Road remains as it existed when it was originally surveyed by the County Surveyor in 1891, but at some point thereafter there were “realignments” in portions of the road creating a separate “traveled way.” No evidence in the record indicates that the realignments were official, who made them, or when they occurred, and the original County Road remained the only official public road in the Section until the establishment of the State Highway in 1948. At some point the County Road was realigned approximately 200 feet to the west creating an isolated parcel of land bordered on the east by the official County Road, and on the west by the newly created “traveled way,” but the County Road has never been officially abandoned by the County.
¶5 In 1948, the State Highway Commission built and graveled a state highway through Bridger Canyon. In some places the highway was constructed directly on top of the County Road while in other places, it was constructed on top of the existing “traveled way.” In the southern part of the Section, the State Highway and the County Road run parallel to one another, with the State Highway running to the west of the County Road. However, toward the middle of Section 17, the State Highway crosses over and runs on the east of the County Road for a stretch. In the north end of the Section, the State Highway once again crosses back to the west side of the County Road. It is the ownership of the island of property in the south end of the Section bordered on the west by the State Highway and on the east by the County Road which is in dispute. Evidence in the record indicates that the importance of the parcel is that 360 plans a subdivision on its property west of the Highway and the property in question would.add acreage and therefore density rights to the property.
¶6 360 asserts the Testers’ predecessors-in-interest intended the County Road to be the boundary line between the parties’ property, thereby placing ownership of the disputed parcel with 360. The Testers contend the grantors in their chain intended the State Highway (or the traveled way beneath it) to be the boundary line, making the Testers the rightful owners of the disputed parcel.
¶7 On October 15, 1996, the Testers commenced an action to quiet title to all land in the Section lying east of the center line of the County road, on the basis of both legal title and adverse possession. The Testers later stated their claim as “all land lying east of the center line of a public road.” 360 denied the Testers’ claims and asserted it owned the disputed property. Trial was held in October, 1998, and in March, 1999, the District Court issued its Findings of Fact, Conclusions of Law, and Order quieting title in favor of the Testers and awarding them the costs of the suit.
¶8 I. Did the District Court err in awarding judgment quieting title to the disputed property in favor of Testers and against 360?
STANDARD OF REVIEW
¶9 We review a district court’s findings of fact to determine whether they are clearly erroneous. State v. Wooster, 1999 MT 22, ¶ 2, 293 Mont. 195, ¶ 2, 974 P.2d 640, ¶ 2 (citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). We review a district court’s conclusions of law to determine whether the interpretation is correct. Cenex Pipeline L.L.C. v. Fly Creek Angus, Inc., 1998 MT 334, ¶ 22, 292 Mont. 300, ¶ 22, 971 P.2d 781, ¶ 22 (citing Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686).
¶ 10 This Court has adopted a three-part test to determine whether a district court’s finding of fact is clearly erroneous. “A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a definite and firm conviction that a mistake has been made.” Matter of Estate of Hunsaker, 1998 MT 279, ¶ 26, 291 Mont. 412, ¶ 26, 968 P.2d 281, ¶ 26 (citing DeSaye, 250 Mont. at 323, 820 P.2d at 1287).
¶11 The District Court found that the resolution of the parties’ dispute depended on whether the County Road or the State Highway serves as the boundary line between the parties’ property. The District Court concluded that the State Highway is the legal boundary, and that the Testers own the disputed property through legal title and adverse possession. 360 claims the District Court’s decision is not supported by substantial evidence and is incorrect.
¶12 The parties agree ownership of legal title to the disputed property turns on whether the grantors in the Testers’ chain of title intended the County Road or the State Highway to serve as the western boundary of the Testers’ property. 360 asserts that in determining whether the Testers have legal title to the land in question, this Court must examine the deeds in the Testers’ chain of title to determine what was granted to them. In construing such deeds, 360 contends we should rely on the plain language which has repeatedly described the property as lying either east of the “public road,” “country road,” or “old county road” not east of the “State Highway” or east of the “traveled way” which later became the State Highway. Therefore, 360 argues that according to the plain language of the deeds, the County Road and not the State Highway is the proper boundary between the properties.
¶13 The Testers claim the District Court correctly determined they own legal title to the disputed property because the State Highway and not the County Road has been consistently treated as their western boundary. They maintain the evidence clearly shows that all parties except 360, including both parties predecessors-in-interest, considered the road which became the State Highway to be the dividing line between the properties. As a result, they assert that references in the deeds in their chain of title to the “public road” or “county road” ac tually refer to the “traveled way” which is today the State Highway. Furthermore, the Testers assert that the District Court correctly determined they owned the property in question by way of adverse possession.
¶14 The District Court concluded that the Testers proved their legal title to the disputed property with “clear and satisfactory proof of title,” that the center line of the State Highway is the boundary line between the properties. The court stated,
[t]he testimony of the three plaintiffs, the deeds in plaintiffs’ chain of title, the plats of Section 17 from the County Clerk and Recorder’s Office, the County tax records and the State Highway records support plaintiffs’ claim to all property east of the Highway because the evidence shows that the “Public Road as the same is now constructed” was consistently treated as the western boundary of the plaintiffs’ property.
The court also concluded as a matter of law that the Testers established adverse possession by claiming the property under color of title and showing that their possession of the disputed property has been “actual, visible, exclusive, hostile, and continuous” for the period of five years immediately before the complaint was filed.
Legal Title
¶ 15 In order to determine whether the District Court was correct in concluding that the Testers had legal title to the disputed property, we begin by examining the Testers’ chain of title. In 1903, the entirety of Section 17, containing 640 acres and owned by the United States Government, was granted to the Northern Pacific Railway Co. In 1907 Northern Pacific conveyed the entire section to Norris Davies subject to “an easement in the public for any public road or roads heretofore laid out or established, and now existing over and across any part of said described land.” In 1916, Davies conveyed to Antone Tester “all that part of Section 17... lying east of the public road as the same now crosses said section, ... containing three hundred and twenty acres of land, more or less. ...” In 1920, Davies conveyed to John and Logan Tester all that part of the west half of Section 17 “lying west of the County Road, as the same is now located through said land.” The Testers are successors-in-interest to Antone Tester while 360 is the successor-in-interest to John and Logan Tester.
¶16 Throughout the Testers’ chain of title, there are many inconsistencies including the unclear use of the terms “public road” and “county road” in reference to the property boundary, the contradictory conveyance of easements, conveyances of differing amounts of acreage, and references to an unrecorded survey. However, the parties contend that the Funk deed is the key point of confusion in the Testers’ chain of title.
¶17 In March of 1951, James Funk conveyed by Warranty Deed to Logan Tester, who has since conveyed away his interest in the west half of Section 17, and Floyd Butler, all that part of Section 17, “lying East of the old County Road as existing over and across said Section prior to the year 1950, according to the map and plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana.”
¶18 In August of 1951, Butler conveyed to Logan Tester his portion of the land “lying East of the Old County Road as existing over and across said section prior to the year 1950, according to the map and plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana ...”
¶19 In 1982, Logan Tester conveyed a Highway Right-of-Way Easement to the State of Montana on the east side of the Highway. Also in 1982, Donald and Sandra Hammersmark conveyed a Highway Right-of-Way Easement to the State of Montana on the west side of the Highway.
¶20 In 1992, following Logan Tester’s death, a Deed of Distribution was recorded with the Gallatin County Clerk and Recorder conveying to the Testers all that part of Section 17, “lying East of the old County Road as existing over and across said Section prior to the year 1950, according to the map and plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana.”
¶21 360 does not dispute the District Court’s Findings of Fact, but argues that the court reached the wrong legal conclusion based on those facts by holding that (1) the Testers proved their legal title with clear and satisfactory proof, and (2) the Testers established that the State Highway is the western boundary of the Testers’ property rather than the County Road.
¶22 360 argues that Funk explicitly stated in the deed to Tester and Butler that he was transferring all land “lying East of the old County Road as existing over and across said Section prior to the year 1950, according to the map and plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County” and that we must therefore interpret the unambiguous language as written. The parties claim it is this transfer which is decisive in this action as the first to describe the boundary between the properties as “the County Road as existing... prior to 1950." The Testers claim the traveled way beneath the highway has consistently been treated as their boundary, and that Funk intended not the County Road but the traveled way to be the boundary. 360 contends that if Funk intended to transfer all land east of the State Highway, as the Testers suggest, he would have used the words “all land lying East of the State Highway...,” rather than distinguishing the boundary as “east of the old County Road.”
¶23 The burden in a quiet title action is on the plaintiff on all issues arising upon the essential allegations of the complaint. The plaintiff must prove title in himself if the answer denies his title. McAlpin v. Smith (1950), 123 Mont. 391, 394, 213 P.2d 602, 603. Want of title in plaintiff renders it unnecessary to examine that of defendant. McAlpin, 123 Mont. at 395, 213 P.2d at 603-04. Furthermore, the burden of proof is on the plaintiff to establish the true location of a disputed boundary line. Brady v. State Highway Commission (1973), 163 Mont. 416, 421, 517 P.2d 738, 741.
¶24 Neither party contends that the District Court erred in its Findings of Fact. 360 merely argues the court erred in concluding that based on those findings the State Highway was the boundary point between the parties. We agree.
¶25 The plain language of the Funk deed is unambiguous. An unambiguous deed must be interpreted according to its language as written, without resort to extrinsic evidence of the grantor’s intent. Ferriter v. Bartmess (1997), 281 Mont. 100, 103, 931 P.2d 709, 711. For proper construction of an instrument § 1-4-102, MCA, allows us to examine the “circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it.” The record indicates that the County Road was the only official road in the Section from 1891 to 1948 and was recorded as being in its original location until the State Highway was constructed in 1948.
¶26 In a similar quite title action the boundary between properties was in question where an earlier deed had conveyed property “east of the wagon road ...” Defendant’s alleged the “wagon road” was the present county road while Plaintiffs alleged that the “wagon road” was a certain wagon road shown on a US Government Survey map of 1886. The district court found that the wagon road was the same “wagon road" as described in the 1899 and 1903 deeds. Upholding the district court’s finding on appeal, we stated
[t]he record indicates comity roads were so named in all plats, surveys, and road books offered into evidence. If the scrivener intended the road designated in the deeds to be the present county road, or a dedicated county road at roughly the present road’s location, he would have said county road in the deeds.
Johnson v. Jarrett (1976), 169 Mont. 408, 414, 548 P.2d 144, 148.
¶27 If Funk intended to convey east of the State Highway which was constructed only three years earlier, he certainly could have done so. Instead, he explicitly conveyed east of the old County Road. To conclude that Funk’s language is ambiguous and that he really meant to convey east of the State Highway would be to read an intent into his language which is simply not justified.
¶28 We conclude that based on the unambiguous language of the deed, and the circumstances under which it was made, including the plats of Section 17, and the State Highway records, the District Court’s conclusion that the State Highway is the legal boundary between the properties was incorrect.
Adverse Possession
¶29 In concluding that the Testers had proved their claim to the disputed property with clear and satisfactory proof of legal title the District Court stated they had proved that “the Public Road as the same is now constructed” was consistently treated as the western boundary of their property. The court also found that the Testers established an adverse possession claim. Under the adverse possession doctrine, property must be claimed under a color of title, or by possession which is actual, visible, exclusive, hostile, and continuous for the statutory period. Burlingame v. Majerrison (1983), 204 Mont. 464, 470, 665 P.2d 1136, 1139; § 70-19-411, MCA. Additionally, the claimant cannot prove adverse possession of any land on which he did not pay taxes. Castles v. Lawrence (1983), 203 Mont. 421, 425, 662 P.2d 589, 591.
¶30 360 claims that the District Court’s conclusion that the Testers have paid taxes on the property which is located east of the State Highway for the full statutory period of five years is error. 360 asserts the tax assessments show that the County assessed taxes to the Testers for property “east of the road” not east of the State Highway. Furthermore, they claim that their own records show that they have paid the taxes on the disputed property for the appropriate five years.
¶31 The Testers contend that § 70-19-411, MCA, does not require payment of taxes on all property to which they claim adverse possession, but only all taxes legally levied and assessed. They further as sert they have been assessed taxes on 345 acres, and since 1989 no one but the Testers have paid taxes east of the highway. Section 70-19-411, MCA states:
[i]n no case shall adverse possessions be considered established under this code unless it shall be shown that the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors, and grantors have during such period paid all the taxes, state, county, or municipal, which have been legally assessed upon said land.
Section 70-19-411, MCA.
¶32 The county tax assessments show that the Testers paid taxes as assessed on “all E of RD less HW 17 in 7E 345.30 acres....” 360 paid taxes as assessed on “W 1/2 NW 1/4 & SE 1/4 NW 1/4 W of Road less HW & SW 1/4 W of Road less HW 17 in 7E 244.08 acres....” Arietta Derleth, Office Supervisor of the Gallatin County assessment office stated that she could say only that the Testers are “paying taxes on the property that’s east of that road, whatever that road is.”
¶33 The tax assessments indicate that the Testers have been assessed and paid taxes on all property east of “the road,” 360 has been assessed and paid taxes on all property west of “the road.” The record shows only two roads in existence in the area of dispute and the State Highway is referred to by name in the assessment. In the south of Section 17, the County Road runs to the east of the State Highway. Toward the middle of the Section, the two roads cross and the County Road runs on the west of the State Highway. Finally, toward the north of the Section, the roads cross again and the County road returns to the east side of the Highway forming a rough “figure 8.” The tax assessments show that the Testers have been assessed and paid taxes on the property east of the road not including the highway (which rims to the east of the County Road in the northern part of the section), and 360 has been assessed and paid taxes on the property west of the road minus the Highway (which runs to the west of the Old County road in the south of the Section). Where the record is not clear regarding the land on which the plaintiff has paid taxes, the claimant cannot prove adverse possession. Castles, 203 Mont. at 425, 662 P.2d at 591.
¶34 There is insufficient evidence to show that the Testers have paid taxes on the property in question which is to the west of the County Road and to the east of the State Highway. Therefore, because the evidence does not support the finding that the Testers have paid taxes on the property at issue, the District Court’s conclusion that the Testers had proven a claim for adverse possession is incorrect.
¶35 II. Because the Testers did not succeed in their action to quiet title in the property, the District Court improperly assessed the costs of suit to 360.
¶36 Reversed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY, LEAPHART, REGNIER and NELSON concur.
|
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MR JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
On July 25, 1903, an action was commenced in tbe district court of Silver Bow county, Montana, by one E. B. Mendenhall, plaintiff, against T. M. Hodgens and T. D’enoon, copartners doing business under tbe name of tbe Copper State Fruit Company. To tbe original complaint filed, tbe defendant Hodgens interposed a demurrer, which was by tbe plaintiff confessed, and thereafter, on November 2, 1903, an amended complaint was filed. Tbe purpose of tbe action is to recover damages alleged to have been sustained by tbe plaintiff, Mendenhall, by reason of tbe alleged breach of a contract on tbe part of tbe defendants. Tbe complaint sets forth in detail tbe terms and conditions of tbe contract, and tbe particulars in which tbe plaintiff was damaged by tbe alleged breach.
On November 3, 1903, and without further appearing in the matter, tbe defendant Hodgens filed in tbe district court an application for an order requiring tbe plaintiff to permit tbe defendant Hodgens to examine and take copies of certain documents and writings designated in tbe application as documents and writings used in evidence upon tbe trial of tbe case of tbe state of Washington against EL B. Mendenhall, and designated therein as Defendant's Eixhibits 3, 4 and 5, and Plaintiff's'Ex- bibits 1 and 2. In support of tbis motion, defendant Hodgens filed bis own affidavit and tbe affidavit of Bobert McBride, one of bis attorneys. These affidavits set forth tbe efforts of tbe defendant Hodgens to secure from tbe attorneys of tbe plaintiff, in whose possession tbe writings are alleged to be, an inspection and copies of tbe same, and bis failure in that behalf. Tbe affidavit of tbe defendant Hodgens then continues: “That affiant understood from tbe said Donovan that said letters were letters affecting tbe merits of tbe claim which tbe said'Donovan made on behalf of tbe said Mendenhall, and were letters upon which be relied to establish the validity of tbe said Menden-hall’s claim, and that tbe said letters were letters used by tbe said Mendenhall in tbe trial of tbe case of tbe state of Washington against Mendenhall, mentioned in plaintiff’s complaint on file herein; that prior to tbe commencement of tbis action tbe said Donovan wrote to affiant relative to- tbe Mendenhall claim, and referred in said letter to an alleged contract which tbis affiant bad with tbe said' Mendenhall, a copy of which said letter is hereto' annexed, marked ‘Eixbibit A,’ and made a part of tbis affidavit; and affiant believes, and so. alleges, that tbe letters which tbe said Donovan has in bis possession are material in tbis action for tbe purpose of establishing the defense to tbe pretended and alleged claim made by said Mendenhall against affiant.” Tbe affidavit of McBride contains these averments: “And affiant believes, and so alleges, that tbe said letters are material in tbe action, and an inspection of tbe same is necessary to a proper defense of tbe said action, and that tbe said plaintiff will rely upon tbe said letters, if tbe above action shall ever be tried, as a basis of bis claim against tbe said Hodgens; that tbe letters referred to as being in tbe possession of tbe said Donovan are letters which were used in tbe trial of tbe case of tbe state of Washington against El B. Mendenhall, mentioned in plaintiff’s complaint as being an action upon which tbe said Mendenhall relies for tbe purpose of establishing a claim for damages against tbe said Hodgens. * * * And affiant believes, and so alleges, that tbe said identical letters are now in tbe possession of tbe said D'onovan, and are material in tbe above-entitled action, as a part of tbe defense to tbe same.”
Tbe plaintiff filed written objections to tbe application for tbe order of inspection, for tbe following reasons:
“(1) Because tbe affidávits in support of said application are insufficient, in tbat they do' not contain any statement that an action is pending- in tbe court in favor of tbe plaintiff and against tbe defendant, and for tbe further reason tbat said affidavits do not apprise the court of tbe nature of tbe action and tbe relief sought, in order tbat it may determine wbetbe'r tbe evidence sought to be obtained by tbe inspection could, in any view of tbe case, be material or relevant to tbe issues.
“(2) Because tbe affidavits in support of said application fail to state any facts or circumstances showing tbat tbe letters or documents sought to be inspected by tbe defendant concern tbe defense of tbe defendant, but, on tbe contrary, said affidavits affirmatively show tbat such letters or documents, if pertinent at all,, have reference solely to tbe plaintiff’s case.
“(3) Because it is not shown tbat said letters or documents, or any of them, sought to be inspected, are material to any' issue which has been or may be raised by any pleading in any case, or tbat the same, or any of them, are necessary to enable tbe defendant to make a defense, or to' aid him in framing bis answer or other pleading.
“(4) Because no particular description of tbe letters or documents or their contents are set out in tbe application, or tbe .affidavits in support thereof.
“(5) Because it is not shown in tbe said application what particular information or evidence defendant desires to obtain, nor is it shown tbat any of said letters or documents contain any such information, if produced.
“(6) Because it is not shown tbat the documents are or would be admissible in evidence on behalf of tbe defendant upon tbe trial of any issue in any cause, and it is not shown tbat tbe same would be admissible as evidence under any circumstances.
“(7) Because there are no facts or circumstances stated showing the necessity for the production of said documents at this time.
“(8) Because it is not shown that the defendant has made or intends to make any defense to said action, for the reason that it does not appear that any answer has ever been filed in the case., or ever will be filed by the defendant herein; and for the further reason that it does not appear that the defendant has a good and meritorious defense, or any defense, to- said action.”
• Thereafter, on November 21, 1903, the application was heard by the court; and, in addition to the moving papers, the defendant Hodgens introduced in evidence the complaint and amended complaint in the action of Mendenhall v. Hodgens, and rested. The court thereupon made an order overruling the plaintiff’s objections, sustaining the application of defendant Hodgens, and directing that plaintiff permit an examination and inspection of the writings, and the making of copies thereof, on or before November 28, 1903, at 12 o’clock m. Plaintiff thereupon made application to this court for a writ of review to annul such order of inspection.
The same question presented here came before this court in State ex rel. Boston & Montana C. C. & S. M. Co. v. District Court, 27 Mont. 441, 71 Pac. 602, 94 Am. St. Rep. 831; and it was there held that the moving papers in the application for the order — in this instance, the motion and affidavits — must show affirmatively that an action is then pending in the district court. It was also-said: “We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider the application insufficient to- vest in the lower court authority to make any order of inspection.” The reason for the rule there announced is made even more apparent in this instance. The constitutional guaranty contained in Article III, Section 7, of the Constitution, that the people shall be secure in their persons, papers, homes and effects from unreasonable search and seizure, cannot be disregarded, to- satisfy the idle curiosity of litigants.
Section 1810 of the Code of Civil Procedure, under which this application is made to the court below, provides: “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any documenc or paper in his possession or,under his control, containing evidence relating to the merits of the action, or the defense therein.” The provisions of this section are obviously intended to enable a party to an action then pending to obtain an inspection of writings in the possession or under the control of his adversary, provided the party applying for the inspection in good faith believes he has a meritorious cause of action or defense, and provided further that those writings, contain evidence relating to the merits of the action, or to the defense therein; and the district court, before making an order of inspection, must determine from the' showing made that an action is pending ; that the writings sought to be inspected do in fact contain evidence competent to be introduced upon the trial, and material and relevant to the issues in controversy, or necessary to enable the moving party to frame his pleading or prepare his cause for trial. In this instance it was impossible for the lower court to have reached any conclusion with reference to these matters. There is no allegation that an action is pending, and, taking the view most favorable to defendant Hudgens, and in conformity with the contention of the respondent here — that the original and amended complaints were before the court as evidence of the pendency of an action — it must be apparent at a glance that such a showing is wholly insufficient. The mere fact that a complaint -is on file in court is hardly sufficient proof of the pendency of an action. The complaint might be on file, and the action have been dismissed, or a final judgment have been entered, and affirmed on appeal. However, we reassert the doctrine announced in State ex rel. Boston & Montana C. C. & S. Mining Co. v. District Court, supra, that it must appear affirmatively from the moving papers that such action is in fact pending. The defendant Hodgens had made no appearance in the ease, except to- file a demurrer, which had been confessed, and, in his application and affidavits in support thereof, he wholly fails to- state that he intends to plead further, that he has any defense to the plaintiff’s cause of action, or, if he has, the nature thereof, or that he will interpose it. The court could not be apprised of the issues which would he involved; neither could it determine whether, in fact, the inspection was necessary in order to enable defendant Hodgens to frame an answer, to prepare for trial, to make his defense, nor whether, in fact, the writings contain anything which, in any view of the case, could be relevant to, or material or competent in, the cause.
There is an entire absence from the application and affidavits of any allegations showing the - necessity for the inspection. The portions of the affidavits quoted above contain the only allusions to- the subject, and no facts whatever are there stated, but only the bald legal conclusions of the affiants that such inspection is necessary. This is wholly insufficient. It is a matter for the court to determine from the facts set forth whether such necessity exists as is contemplated by the statute, for it is only under such conditions that the right of privacy must give way to- the dictates of public policy. The applications, including all the moving papers, must be sufficient to invoke or set in motion the jurisdiction of the court to which the application is made; otherwise the court is without power to make the order petitioned for. In this instance it is wholly insufficient in the particulars herein designated, and the order of inspection made on November 21, 1903, is annulled and set aside.
Order annulled.
|
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MR CHIEF JUSTICE, BRANTUY,
after stating the case, delivered, the opinion of the court.
No appeal lies from an order taxing costs. (Montana, Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 288, 10 Pac. 1114; Murray v. Northern Pacific Ry. Co., 26 Mont. 268, 61 Pac. 625.) The attempted appeal from the order must therefore be dismissed. The appeal from the judgment, however, properly presents for review the controversy of the parties, and the action of tire district court thereon.
Contention is made by the appellants that the memorandum. filed by them with the clerk of the district court, was prima facie evidence of the correctness of the various items set forth therein as necessary costs and disbursement and that the district court erred in not directing judgment for the whole amount claimed.
The rule is well established by the authorities that where, • under a statute or rule of cour^ a requirement is made that, in order to recover costs; the party claiming them must, within a specified! time, serve upon his adversary and file with the clerk a memorandum of the items thereof, duly verified, such memorandum! is prima facie evidence that the items were necessarily expended, and are properly taxable, unless, as a matter of law, they appear otherwise upon the face. The burden of overcoming this piñma facie case rests upon the adverse party, and the party filing the memorandum is required to furnish further proof only in rebuttal. Hence upon the. trial of a motion to tax costs, if the adverse party does not overturn the prima facie caise made by the verified memorandum, the objection should' be overruled. (Hibbard, v. Tomlinson, 2 Mont. 223; Elliott v. Collins, 6 Idaho; 157, 53 Pac. 453; City and County of San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56; Barnhart v. Kron, 88 Cal. 447, 26 Pac. 210; Colusa Parrot M. & S. Co. v. Anaconda. C. M. Co. (C. C.), 104 Eed. 514; Fitnam’s Tr. Pro. Sec. 669.)
Under the statute (Code of Civil Procedure, Section 1866) all the items called1 in question could properly be taxed, because this section, besides providing for the fees of witnesses and other disbursements, provides also. for “the reasonable expenses for making’ a map or maps if required and necessary to be used on trial or hearing, and such other reasonable and necessary expenses as. are taxable according to the course and practice of the court, or by express provision of law.” By an. express provision of law (Code of Civil Procedure, Section 1317) the costs of procuring an order of survey abide the result of the action, and are taxable against the losing party. If, therefore, no evidence at all had been introduced at (he hearing, the defendants would have been entitled to have all the items included in their judgment. The plaintiffs having assumed the burden, however, we must examine the record with this condition in miñd, and determine whether, as a matter of fact, the item) should have been taxed as -necessary disbursements, or ■whether, upon this theory, the court erred in reaching the conclusion it did
As has been said, the issue in the case upon the pleadings was as to the ownership of a, vein or lode and tire extent of the alleged trespass of the defendants. The complaint described the Silver Xing claim and the locality of the trespasses in general terms. The restraining parti of the orderg to- show that the survey was. necessary, and that a ma,pl was required to enable the witnesses to make intelligible to the court- their testimony touching the physical and geological facts as, they understood them. The map- itself was. offered in evidence, in connection with the testimony of the witnesses, in order that the court, might determine whether or not its use at the hearing would have been, necessary. Evidence was also- offered to. show thei reasonable cost of making the map. The court, upon objection, excluded all the evidence offered, except the fact that the map had been, made by the engineer of tbe defendants, and that it represented all the underground workings involved in the controversy. No. evidence was offered or introduced touching the item of $1 paid the sheriff for serving the subpoena, nor was any offered upon the item of $3 paid to> the witness who testified at the hearing for the survey ordter. It is manifest that if the court was justified in allowing the $;3 paid to the witness called to testify at the injunction proceeding, the fee paid to the sheriff for summoning this witness should also have been allowed. It is equally clear that when the court found upon the application for the survey order that the survey was necessary in order to enable the defendants to properly .present their case to the court, this was an adjudication of the costs attendant upon procuring the order, and the court was in error in disallowing the fee of $3 paid to the witness who* testified! on that hearing. ‘Whether or not the expense of making the mapi was reasonable or necessary in order to facilitate the hearing, upon the injunction proceeding was a question of fact, and upon the theory upon which the matter was presented to the court by the defendants, the court should have admitted all competent evidence tending to throw light upon thisi question. This would include the evidence of witnesses explanatory of what the map was intended to show, as well as their statements as to whether it correctly represented the facts intended; to be shown by it. In connection with this it was clearly competent to introduce the map itself, and also the testimony of witnesses tending to- show what was the reasonable cost of making it. It is inconceivable how the court could reach a just conclusion u,ppn the question under investigation without hearing and weighing this testimony, and it was clearly error to exclude it. The court evidently proceeded upon the erroneous idea that the burden was upon the defendants, and that, having failed to' show that these items were all necessarily expended in preparation for the hearing, they were not entitled to' be reimbursed.
Reference is made in the brief of counsel to rulings of the court upon particular parts of the evidence excluded. We shall not attempt to' notice these in detail. What we have already said we deem sufficient to guide the court in another hearing.
The judgment is reversed, and the cause is remanded, with directions toi the district court to proceed in, accordance with the views herein expressed.
Reversed and retnanded.
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] |
MB. COMMISSIONER CLAYBERG
prepare the opinion for the court.
This is an action brought in support of an adverse claim filed against an application for patent to a mining claim. The contentions of the respective parties, as we gather them from the record, are briefly as follows: Respondent asserts that his predecessors had located the W. W. Dixon lode claim on January 1, 1891, which, according to the declaratory statement duly recorded, ran 1,400 feet easterly- and 100 feet westerly from the discovery shaft. Appellants base their rights upon a location of the Snowstorm lode claim, made September 5, 1898, which, according to the declaratory statement, extends along the vein 1,150 feet in a northerly direction and 300 feet in a southerly direction from discovery.
Appellants’ declaratory statement of the Snowstorm location is as follows:
“Quartz Location. Notice is hereby given that the undersigned' citizens of the United States, did, on the 5th day of Sept., 1898, discover a quartz lode or vein, bearing gold, silver, iron and other valuable metals, with at least one well-defined wall, to be known as the Snowstorm quartz lode mining claim, and did on said day locate and claim, by virtue of chapter six, of title XXXII, of the [Revised Statutes of the United States, and the laws of the state of Montana, 1150 feet in a northerly direction.and 350. feet in a southerly direction from the center of the discovery shaft, which is an open cut ten feet deep (at which cut this notice of location is posted), and 300 feet on each side from the middle or center of said lode or vein at the surface, comprising in all 1,500 feet in length, along said vein or. lode, and 600 feet in width. This lode is situated in the Sheepeater unorganized mining district, in the county of Park and state of Montana (the adjoining claims are the New York mining claim on the north and the Sunshine lode mining claim on the west), and is a relocation of the Monarch lode claim, on which the discovery was a shaft which was ten feet in depth, 4%, feet in size, and-- feet in-, has been extended in-by the undersigned-feet —'—. The exterior boundaries of this location are distinctly marked by posts or monuments at each corner of the claim, so- that the boundaries can be readily traced, viz.: Beginning at open cut which is the point of discovery, thence running in a northerly direction 1,150 feet to the northeast corner stake, marked No. 1; thence 600 feet west to- the northwest corner stakes marked No. 2; thence 1,500 feet in a southerly direction to- the southwest corner stake, marked No. 3; thence 600 feet in an easterly direction to- southeast corner stake, marked No-. 4; thence 1,500 feet in a northerly direction to- stake No. 1 a,t N. El corner. A. B. Wilson, Thomas Lenaghan, Paul Kigler, John Viditz, Locator — and Claimant — .”
This declaratory statement, when offered in evidence, was objected to by respondent, on the ground that “it does not meet the requirements of the statute.” Its validity must therefore be determined; because, if it be invalid, appellants’ location fails, and they could not maintain this character of action, and were not entitled to a judgment.
Section 3611 of the Political Code, among other things, provides that: “The locator or locators must define the boundaries of his or their claim by marking a tree or rock in place, or by setting a post or stong at éach corner or angle of the claim. When a post is used, it must be at least four inches square by four feet six inches in length, set one foot in the ground, with a mound of earth or stone four feet in diameter by two feet in height around the post. When a stone is used, not a rock in place, it must be at least six inches square and eighteen inches in length, set two thirds of its length in the ground, which trees, stakes or monuments must be so marked as to designate the corners.”
Section 3612 provides what the declaratory statement which is recorded shall contain, and among the other things-required are “(6) The dimensions and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims. (I) The location and description of each corner, with the markings thereon.”
An examination of the recorded declaratory statement discloses. that the boundary stakes were simply marked “No. 1,” “No. 2,” “No. 3,” and “No. 4.” It must be remembered that under Section 3611 the stakes “must be so marked as to designate the corners,” and under Section 3612 the recorded declaratory statement must contain “a. description of each corner, with the markings thereon.”
We doubt whether this declaratory statement shows that the stakes were “so marked as to designate the corners,” or that it contains “a description of each corner with the markings thereon,” within the purview of the following decisions: Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153; Walker v. Pennington, 27 Mont. 369, 71 Pac. 156; Halm v. James, 29 Mont. 1, 73 Pac. 965; but, inasmuch as it is clearly insufficient for other reasons, we do not express any definite opinion thereon.
Section 3612, as. above seen, requires the declaratory statement to set forth the dimensions and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims. The equivalent of a discovery shaft is defined by the statute in the following language: “A cut, a cross-cut or a,tunnel which cuis a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft.” (Section 3611, Political Code.) The recorded declaratory statement does not satisfy the requirements of these provisions. The only reference to a discovery shaft, for the purpose of giving its dimensions, is as follows: The Snowstorm “is a relocation of the Monarch lode claim, on which the discovery was a. shaft which was ten feet in depth and four and one-half feet in size,” not that these were its dimensions “at the date of such relocation.” No reference is made to a discovery shaft or its equivalent upon which the location is based, except the recitals, “from the center of discovery shaft which is an open cut ten feet deep/’ and “beginning at an open cut which is the point of discovery,” neither of which is sufficient to< give, as a. fact, the dimensions and location of the discovery shaft or its equivalent.
Again, Section 3615 provides: “The relocation of an abandoned lode or placer claim must be made by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were an original location made under this chapter; or the relocator may sink the original discovery shaft ten feet deeper, in which case the declaratory statement must give the depth and dimension of the original discovery shaft at the date of such relocation.” Now, under this section, if the Snowstorm was a relocation of the Monarch, the locators were required, either to sink a new discovery shaft or its equivalent, tire same as if it were an original location, in which case they, would be bound to' set forth, in their declaratory statement the dimensions and location of such discovery shaft or its equivalent, or sink the original discovery shaft ten feet deeper, in which case the declaratory statement would be required to give, first, the depth and dimensions of the original discovery shaft “at the date of relocation,” and, second> the dimensions and location of the discovery shaft or its equivalent upon which the location was based (which in such instance must be the original discovery shaft sunk ten feet deeper). There is nothing in the declaratory statement above quoted showing the dimensions and location of the discovery shaft, or its equivalent, if a new shaft was sunk as a basis of location; or showing the depth and dimensions of the discovery shaft upon the abandoned claim “at the date of such location,” and that it was sunk ten feet deeper, if the location was based upon such facts. Therefore we are satisfied that the declaratory statement introduced in evidence by the plaintiffs and appellants was absolutely void, and gave the plaintiffs and appellants no right to maintain the suit in controversy, or have judgment entered in their favor upon such suit.
Of course, in suits of this character the United States is a quasi party, and if the court is satisfied, upon a trial of the case, that neither plaintiff nor defendant is entitled to a patent of the ground in controversy, it must so- find and decide. (Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990.)
It therefore becomes necessary to1 investigate the validity of respondent’s alleged title. As was stated before, respondent claims under a location made on the 1st day of January, 1891. This location, having been made prior to the Code of 1895, must be tested by the law in force at the time it was made. We have no doubt that it was prima facie a valid location under the laws of Montana and the United States existing at the time it was made. Respondent claims that there was a mistake in the recorded certificate of location as to the direction of the vein located and of the claim, and a discrepancy between such certificate and the staking of the claim on the ground; that while in the notice the claim was described as running easterly and westerly,-in truth and in fact, by the staking of'the claim on the ground, it ran in a northerly and southerly direction. Therefore, for the purpose of correcting this mistake, an amended declaratory statement was recorded in 1899. This amended statement recites fully the facts in regard to the making of the original location, and states that it was “for the purpose of' more fully and perfectly describing the -said claim, and with no intention or design to waive any rights accrued or accruing under and by virtue of the said notice of location so filed as aforesaid.” It is therefore not-a new location or a relocation, but simply an amendment of the declaratory statement of the old location, made solely for the purpose of correcting a mistake therein in the description of the claim as to its staking.
The legislature in 1901 (Laws 1901, p¡. 56) enacted a law allowing the filing of an additional or amendatory declaratory statement in cases where the original was defective or erroneous. Section 2 of this Act provides as follows: “Any amended or additional declaratory statement which may have heretofore been filed by a locator, or his successors or assigns, shall have the same force and effect and be subject to the same terms and conditions as though the same had been filed under the provisions of Section 1 of this Act.” In our opinion, under this law, the original location and the amended declaratory statement, construed together, constituted a valid location of the W. W. Dixon in a northerly and southerly direction, and that the respondent, as against plaintiffs and the United States, was entitled to a patent- for the W. W. Dixon, upon making the proper proof before the court and land office. Respondent did not change the location on the ground by the amended declaratory statement, but simply conformed the description as stated in the original declaratory statement, as recorded, with the actual staking on the ground as made at the time the original location was made. Respondent had a perfect right to do this, and, inasmuch as plaintiffs’ location has been held to be'absolutely void, they were not interested in any of the ground in controversy, and. therefore have no right to object to the action of respondent in that regard.
Appellants also contend that respondent has not placed upon said lode claim, so sought to1 be patented, $600 work or improvements. This was a matter which could not he in controversy in the trial of a suit of this character. The court has nothing to do with the question as to whether the work was done or not. It is a question exclusively for the land office, and the respondent might have, if he had not already done so, completed such work and improvements at any time before actually making his final entry in the land office.
Appellants further allege that the W. W. Dixon lode was forfeited because of the failure of respondent to do the necessary annual work upon the claim for the years 1897 and 1898. The purpose of annual representation is to enable the locator to hold his claim as against all persons. It is not required for any purpose which affects the general government. (2 Lind, on Mines (2d Ed.) Sec. 624, and cases.) The government cannot forfeit the claim if the annual representation has not been placed upon it. In order to make the want of annual representation effective, the ground must be entered and located by another person. We have seen that the pretended entry and location by the appellants was absolutely void and of no effect, and therefore- they cannot raise the question as to the sufficiency of representation work. Besides, the proof in the record discloses that representation work was done for both these years on claims which are a part of a group of contiguous claims owned by the respondent, of which the W. W. Dixon was one, and that the work done upon the other claims “had a tendency to develop the W. W. Dixon claim.”
Counsel for respondent raised and argued the proposition that the plaintiffs’ location was void because of its great excess, being 806 feet wide at one end and over 1,800 feet in length, one side line being 1,858 1-10 feet long, and the other 1,951 5-10 feet long (as disclosed by’the complaint on file in the action). The point is a very important one, and its consideration is not necessary to a decision of tbe case, inasmuch as appellants’ location is void for other reasons.
We are therefore of the opinion that the judgment of the court below was correct, and should be affirmed.
Per Cubiam.
For the reasons stated in the foregoing opinion the judgment is affirmed.
|
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] |
Per Curiam.
The application for a writ of supervisory control, or some other appropriate writ, herein, is hereby denied.
|
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■ ME. COMMISSIONER CLAYBEEG
prepared the opinion for the court.
This is an appeal from a decree settling certain water rights, and from ata order overruling' appellant’® motion for a new trial.
In appellant’s brief we find tbe following' statement: “The only question presented for considleration by the record is the sufficiency of the evidence to sustain the findings as made. There is no question of law presented for consideration.” The evidence which appellant claims is insufficient is contained in what purports to be a statement on motion for a new trial, which is not in any way or manner certified to this court. The clerk’s certificate to the transcript is in the following language: “I, J. P. Cone, clerk of the district court of the Fourth judicial district of the state of Montana, in and for the county of Ravalli, do hereby certify that the transcript on appeal herewith submitted, wherein Rees Powell is appellant and Albert May et al. are respondents, to be a true, full and correct copy of the judgment roll in said action as it appears on file in my office.”
Section 1196, Code of Civil Procedure, pirovides that “the pleading's, a copy of the verdict of the jury, or finding of the court, or referee, all bills of exceptions taken and/filed, all orders, matters and proceedings deemed excepted to without bill of exceptions, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment” constitute the judgment roll. The statement on motion for a new trial is therefore no part of the judgment roll at all.
Section 1738, Code of Civil Procedure, provides that “on an appeal from an order granting or refusing a newi trial, the appellant must furnish the court with a copy of the notice of appeal, of the order appealed from, and of the papers designated in Section 1176 of this Code.” Section 1176 provides: “The judgment roll, and the affidavits, or bill of exceptions or statement, as the case may be, used on the hearing, with a copy of the order made, shall constitute the record to be used' on appeal from the order granting or refusing a new trial.” Section 1739, Code of Civil Procedure, provides: “The copies provided in the last three sections must be certified to be correct by the clerk or the attorneys.”
The statement on motion for a new trial, not being certified to this court by the clerk of the coiirt below to be a correct copy of the original on file in said court, cannot be considered by this court, on this hearing. This leaves a record consisting only of the judgment roll, which contains no evidence at all. We therefore are unable to consider the point raised as to the sufficiency of the evidence.
Again, the. record discloses that the order overruling the motion for a new trial was made on the 3d day of December, 1900. Notice of appeal from this order was served on the 6th day of April, 1901. Appeals fromi orders granting or refusing new trials must be taken within sixty days from the date of the order appealed from. (Section 1723, Code of Civil Procedure, Laws of 1899, p. 147.) Inasmuch as more than sixty days had elapsed from the entry of the order to the giving notice of appeal, appellant’s appeal from the order refusing the motion for a new trial must stand dismissed.
The respondents in the case have not appeared in this court, and therefore we have considered it our .duty to investigate the record, and ascertain whether the case is properly before us for hearing.
No errors in law being charged or asserted, and the record presenting an appeal only from the judgment, we advise that the same be affirmed.
Pee, Cueiam.
For the reasons, stated in the foregoing opinion the judgment appealed from is affirmed.
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MR. JUSTICE SMITH
delivered the opinion of the court.
1. It is suggested by the respondents that the complaint shows that the relation of master and servant did not exist between the defendants and the deceased. We find no express allega tion in the complaint that deceased was the servant of the defendants, bnt we do find the averments that deceased was “employed and hired by the defendant Madison Eiver Power Company,” and was “employed” by the company, and was “engaged in the performance of his duty under his employment ”p and, as the gravamen of the whole complaint is that it was the duty of the defendants to use ordinary care to furnish the deceased a reasonably safe place in which to work, we think the complaint is sufficient in this particular.
2. But it is insisted that, if the complaint is sufficient in this regard, there was a fatal variance between the allegations thereof and the proof, in that the evidence shows that deceased was not a servant, but an independent contractor. The following pertinent quotation from 1 Shearman & Eedfield on Negligence, sections 164, 165, we take from the brief of counsel for the respondents :
“Sec. 164. Although, in a general sense, every person who enters into a contract may be called a ‘contractor,’ yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details. The true test of a ‘contractor’ would seem to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. # * #
“Sec. 165. * * * If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes, not merely as to the result, but also as to the means by which that result is to be attained, the contractor becomes a servant in respect to that work. * * * In most instances the distinction is easily observed. Thus one who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely according to his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor, and not a servant. The fact that such an employee is paid by the' day, or that, in all the work, he consults and defers to the wishes of his employer, makes no difference, although an express contract to pay by the job is always strong evidence that the relation of master and servant does not exist.”
It appears from the testimony that Davidson told McCabe that he wanted him to go out to the substation for the purpose of doing some work, and directed him to get another man to help him. In employing Howerton, McCabe acted as agent of the defendants. McCabe understood they were to be paid by the hour. The officers of the company pointed out what work was required. The materials were furnished by the company. The general plans were those of the company. In fact, the testimony shows that McCabe and Howerton submitted themselves to the control of the company and its officers in all the details of the work, and did not in any sense use their own means or methods, except in so far as they contributed to the work that special knowledge and experience possessed by them as carpenters, not possessed by the officers of the company. They were servants and employees, and not independent contractors. (Jensen v. Barbour, 15 Mont. 582, 39 Pac. 906.)
3. Reading the testimony of McCabe and Davidson in the light of what was said in Allen v. Bell, 32 Mont. 69, 79 Pac. 582, we think that Davidson was not a fellow-servant with deceased.
4. It is contended that the complaint does not state facts sufficient to constitute a cause of action, “in that it shows the proximate (or a proximate) cause of the injury to have been the act of Howerton, and it fails to show his freedom from negligence in the doing of the act.” The eases of Nord v. Boston & Montana Con. C. & S. Min. Co., 30 Mont. 48, 75 Pac. 681, Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871, and Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 PaC. 852, are relied upon. The quotation above is taken from the opinion of Mr. Commissioner Clayberg in the Nord Case,' citing Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21. But the pleader in this ease has complied with the general rule laid down in Kennon v. Gilmer. He alleges that deceased “was engaged in the performance of his duty”; that he “accidentally lost his footing and in an attempt to prevent his falling from said height to the floor below, and, not. knowing that the same was charged with electricity, threw his arm over the said wire”; that he “was inexperienced with electric wires, and did not know that the wire * * * was charged with electricity, and did not know that the said place where he was working was dangerous and unsafe because of the danger -of his coming in contact with wires charged with electricity”; that the defendants had knowledge and notice of said conditions and. negligently failed to inform deceased of them. We think this statement of the facts is a sufficient compliance with the rule, and that a formal allegation that deceased was free from contributory negligence was not necessary.
5. Appellant’s counsel contend that under the admissions in the pleadings and the undisputed proofs on the trial there was and is only one question in the ease, namely, whether Howerton was warned of the danger, and we are inclined to agree that this is the principal question involved. No complaint is made that the substation was not properly constructed, or that any of the appliances were defective or insufficient. It is alleged in the complaint, and tacitly admitted in the answer, that the wires were dangerous, or at least that wires charged with a high degree of electricity are liable to cause injury or death. The real grievance complained of is the failure to warn the plaintiff of the danger, inasmuch as he was ignorant of it. The defendants contended, and sought to prove, that the deceased was warned sufficiently so that he not only knew of the danger, but fully appreciated it. The question of the failure of the defendants to furnish approved or different appliances is not in the case. As we read the complaint, it charges that the place was dangerous, but that Howerton did not know of the danger or appreciate it, and that the defendants did have such knowledge and appre ciation of the danger, and negligently failed to communicate such knowledge to the deceased. That the case was tried upon this theory is shown by the defendants’ answer and the nature of their evidence. The complaint in its general allegations of negligence is not very definite, certain or specific, but it is sufficient in that regard to withstand the attack made upon it in this court. A servant does not assume the risk of extraordinary dangers of which he has no knowledge or appreciation. (Hollingsworth v. Davis-Daly Copper Co., ante, p. 143, 99 Pac. 142; Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45.) We also think the complaint satisfies the rule laid down in Fearon v. Mullins, 35 Mont. 232, 88 Pac. 794.
6. As the case must be retried, we do not deem it proper to comment upon the testimony to any greater extent than to say that the case does not fall within the principle considered in McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40, Howie v. California Brewery Co., 35 Mont. 264, 88 Pac. 1007, or Olsen v. Montana Ore Pur. Co., 35 Mont. 400, 89 Pac. 731, but rather within the rules recognized in Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843, and Hollingsworth v. Davis-Daly Copper Co., supra. It is reasonably certain that Howerton’s death was due to contact with the highly charged wire; and, if the jury believed McCabe’s testimony, they might have concluded that deceased was engaged in doing what he was directed to do by the defendants, and had no knowledge that there was any danger to be apprehended from touching the wire.
7. We cannot say, as a matter of law, that the evidence discloses contributory negligence, or any negligence, on the part of the deceased. (Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940.)
8. On the point made by the respondents that deceased assumed the risk of danger from the wires, we have only to call attention, in addition to the fact that deceased was a carpenter and not an electrician, to McCabe’s testimony as to what experience they had had with the outside wires, and what Davidson said with relation thereto.
Rehearing denied March 13, 1909.
9. It is not necessary to inquire to what extent a jury may disregard testimony. It cannot be said that Davidson’s testimony was uncontradicted or unimpeached. We think the cause should have been submitted to the jury.
The judgment and order are reversed, and the case is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantlt and Mr. Justice Holloway concur.
|
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MR. JUSTICE SMITH
delivered the opinion of the court.
The defendant was convicted in the district court of Lewis and Clark county of the crime of robbery and appeals from the judgment. The prosecuting witness, the man alleged to have been robbed, was named Haar.
1. At the trial John F. Flannery, chief of police of Helena, a witness for the state, was asked: “Did you have any conversation with the defendant in regard to the alleged robbery of Haar?” Defendant’s counsel interposed this objection: “We object. No proper foundation has been laid. There has been no proof adduced as yet as to any conversation, nor as to any offense.” The objection was overruled, and the witness answered. in substance, that the defendant first denied that he knew Haar or was in his company, but afterward acknowledged that he did know him, and said that Haar and a man had gotten into a fight on Sixth avenue, and that was how Haar got a sear on his head. It is contended in this court that the evidence was inadmissible because it amounted to a confession “made by a person under arrest to police officers or those having authority over him, without first' determining the facts and circumstances surrounding the making of such confession and satisfying the court that such confessions were made fairly and voluntarily, without fear or hope of reward or benefit therefrom, or under duress of any kind or nature.” We shall hereafter pass upon the merits of this contention, as applied to the facts disclosed by the record in this particular ease; but here it is sufficient to say that the objection interposed did not raise the question.
2. Haar testified: That he was in a place called Steinbrenner’s saloon, in Helena, about 10 o’clock of the night in question, having come from Townsend the same evening; that defendant came into the saloon, and they sat down by a table and drank some beer; afterward defendant undertook to show him a lodging-house, and they went out onto the street; that, when they got some distance off Main street, the defendant “pounded him on the head with something,” and he fell down, whereupon defendant robbed him of his pocketbook, containing about $20 in money, and ran away; that he became unconscious for about an hour and later found his way back t’o Steinbrenner’s place and washed the blood off his face. It appeared that the witness was unacquainted with the names of the streets of Helena and had some difficulty in describing the place of the assault, although he said he could go there again and had been ‘ ‘ around there yesterday and looked and saw where it was. ’ ’ The court then suggested that during recess the witness should go with the bailiff “and have the place fixed so that he can give the names.” To this the defendant’s counsel consented, and afterward the bailiff testified that the witness went over the ground with him, pointed out the streets traversed on the night of the alleged robbery, and finally indicated a certain spot on Fuller Avenue as looking like the place where defendant assaulted him, as near as he could remember. It appears from the record that the bailiff had made a map of the route and was testifying from it. The county attorney asked: “Have you indicated the point on the map that he indicated?” The answer was in the affirmative. Witness then testified that the map fairly represented the streets and buildings with reference to Fuller Avenue, and that a certain line on the map indicated the route which they took. All of the foregoing went in without objection, but when the map was formally offered in evidence it was objected to, for the reason that, in so far as it showed the place of the alleged assault, it was hearsay. Regardless of whether or not the objection was technically well taken, we cannot see how the defendant was prejudiced by the formal receipt of the map in evidence, after the witness had used it to illustrate his testimony and had definitely described the spot where Haar said the assault took place. Haar afterward testified that the red line on the map indicated, to the best of his recollection, the course he traveled on the night of the occurrence.
3. Defendant moved to strike out the testimony of the bailiff relating to what Haar told him as to where the assault took place; but, as the testimony was received without objection, and the trip was made with the consent of defendant’s counsel, this motion was properly overruled.
4. Defendant objected to the witness Haar testifying, after he made the trip with the bailiff, as to where he was assaulted; but we see no merit in this objection. The witness had a right to refresh his recollection by going over the ground again, if by so doing he was able to identify the objects along the course theretofore taken.
5. Haar testified that he and defendant sat at a table in the saloon drinking, and that' defendant saw his poeketbook at that time. Counsel for defendant then asked whether it was possible for De Hart to see the money when Haar took out the poeketbook. The court sustained an objection to the question, and the ruling is assigned as error; but' no possible prejudice could have resulted, because the witness testified immediately afterward that he did not know whether De Hart could see the money or not.
6. In addition t.o the testimony of the chief of police, other officers were allowed to testify that they had conversations with the defendant touching the offense with which he was charged,, while he was in their custody. The defendant' objected to this1 testimony for the reasons hereinbefore set forth. An examination of the testimony shows that at no time did the defendant admit or confess that he committed the crime of robbery. On the contrary, he denied that; but he did admit to the officers, that he had a quarrel with Haar, that he had a fight with him and knocked him down. These statement's may have been in the nature of admissions on defendant’s part, but he himself testified at the trial that they quarreled, and he struck Haar and knocked him dowm. He denied that he robbed him. It is, true that he did testify that he was afraid of the officers when he talked with them, but how could that fact possibly affect the verdict, when he told in court the same story told to the officers, no more and no less? While admitting the truth of the statements, he cannot complain that they were involuntarily made. We find no reversible error on this point.
7. Counsel for the defendant in his brief complains bitterly of the treatment accorded him during the trial by t'he district judge; but, whatever the facts may have been, the record does, not disclose any conduct on the part of the judge that would warrant the conclusions drawn by counsel. A specific error complained of is this: Counsel for defendant had examined the witness Haar for some time touching the question whether De Hart could see the money in the poeketbook. Witness finally said: “Sure, the man seen it when I opened the poeketbook.”' The court thereupon remarked: “Now he has answered it. I will limit you to half a dozen questions, and no more. You may ask him if he wrent in there, if he sat down, if he had a, poeketbook, if he opened it, and if they or any others were in. a position so that they could have seen if there was money in the pocketbook.” Defendant’s counsel objected to the language and t'he ruling of the court. And again: Defendant’s counsel asked: “How much money did you say you had when you got to Helena?” The witness answered: “Twenty-three or four dollars. Something like that, or a little over. ’ ’ The court again said: “Don’t ask any more questions about that amount. I think you have got that a dozen times. If you want to distinguish between $23 and $24, why! go ahead. ’ ’ Counsel continued to cross-examine, and it does not appear that the court in fact limited the cross-examination.
8. Counsel for defendant asked Haar whether he had defendant arrested of his own free will, and the court sustained an objection to the question. Counsel then asked: “Do you bear De Hart any malice?” The court refused to allow the defendant to answer, whereupon defendant’s counsel stated: “I want to show that this witness is not a willing one; that he didn’t want to have De Hart arrested.” This presents a new phase of the question ordinarily raised. It will be observed that counsel did not desire to show hostility, but rather the contrary. We-think the court was right in holding that the friendly feeling of the prosecuting -witness toward the defendant was not a matter for the jury to take into consideration in arriving at a verdict.
9. The court allowed the county attorney to prove by the bartender at Steinbrenner’s that when Haar returned to the saloon he said he had been hit on the head by De Hart. The state contended that this remark was part of the res gestae, and the record does not inform us what the court’s opinion was, aside from the fact that he allowed the testimony to go in. We do not regard it as a part of the res gestae. It was, viewed in the-light of the other testimony, clearly a narration of a past occurrence. But, again, we find that the defendant on the witness-stand admitted the very act that Haar complained of to the bartender, no more and no less; and therefore the defendant suffered no prejudice by the admission of the testimony.
10. The court overruled the defendant’s objection to the following question propounded to the bartender: “Is it not true that a man with a pocketbook in his hand, in his left' pocket, standing up there by the bar, might take out that pocketbook, take out a silver dollar, and put the pocketbook back, and you not have seen it?” We find no error in this ruling.
11. Defendant complains that the court allowed the county attorney to cross-examine him in regard to matters not touched upon in his direct examination. There is no merit in this objection. Defendant had testified that the morning after the affair with Haar he went to East Helena. The county attorney inquired whether he did not' go to Butte and write a letter from there to one Groseclose. This was objected to, and the objection overruled. We think the question was proper as bearing upon the truth of defendant’s statement that he went t'o East Helena. (See State v. Howard, 30 Mont. 518, 77 Pac. 50.) But in answer to the question defendant volunteered the statement that he wrote a letter in East Helena and sent it to Butte to be posted, and he afterward testified without objection that he did so in order to make it appear that he had gone to Butte. If he was prejudiced by this testimony, it was his own fault.
12. There was no error in allowing the witness Shoemaker to testify in rebuttal to matters that properly constituted a part of the state’s case in chief. This was within the sound discretion of the court. Opportunity was offered to defendant to meet the testimony if he so desired, and we find no abuse of discretion. Neither was there error in the admission of Prickett’s testimony.
We find no error in the record, and the judgment must be affirmed. It appears t'o us that the defendant had a fair and impartial trial, and, judging from the able and exhaustive briefs filed by his counsel in this court, we have no hesitancy in saying that his rights were well protected in the court below. The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SMITH
delivered the opinion of the court.
The district court of Silver Bow county sustained a general demurrer to the complaint in this case, which is an action for damages for breach of an executory contract for the sale of real estate, and, in default of further pleading by the plaintiff, entered judgment for the defendants. From that judgment an appeal is taken.
The point to be decided is whether a written agreement by one who signed his name “T. J. Lynde, Adm. Estate of Mary A. Black,” and two others, to convey at a future date real estate not owned by them, but belonging to the estate represented by the administrator, said agreement being founded upon a valuable consideration, i. e., part payment of the purchase price, is void and unenforceable, as against public policy. Professor Page, in his work on Contracts (section 326), says: “Contracts are against public policy when they tend to injure the state or the public. ‘Public policy is that principle of law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.’ ” Many cases are cited by counsel for the respondents which hold that illegal or immoral contracts will not be enforced. Those cases are not in point here. There was nothing immoral or illegal about this contract. Laymen, as well as lawyers, know that property belonging to the estate of a dead man can be lawfully sold and conveyed by complying with the law governing the procedure in such cases, and that it descends to those entitled thereto if not so sold. The contract in this case cannot be construed as an agreement to convey without an order of court. A man can, for a consideration, bind himself by a contract to convey property which he does not own at the time of making the contract. If the parties intend in good faith to carry out the terms of the contract (and there is nothing in the complaint in this case to negative such intention), and not merely to wager on the price of the subject matter at a future date, the fact that the obligors do not at the time of the execution of the contract own the property will not prevent the injured party from maintaining an action for its breach. It is matter of common knowledge that men speculate in real estate, and that persons engaged in the real estate business agree, in their own names, and bind themselves, to convey the property of others. It is to be presumed that before entering into such contracts they make reasonably sure, by agreements with owners or otherwise, that they will be able to get title, or, at least, that the property will be on the market before they are obliged to perform. There is nothing in the complaint in this case to indicate that there was any notion in the minds of the parties of defrauding the estate. Courts are reluctant to declare contracts void as against public policy, and will refuse to do so if by any reasonable construction the contract can be upheld. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable and capable of being carried into effect, if it can be done, without violating the intention of the parties. (Revised Codes, sec. 5032.)
In the case of Montana Min. Co. v. St. Louis Min. Co., 20 Mont. 394, 51 Pac. 824, it was held that an agreement to convey to an adverse claimant a portion of the ground in dispute after patent had been obtained from the United States, was enforceable in equity and not against public policy. “A contract is not invalid, nor is the promisor discharged, merely because it turns out to be difficult, unreasonable, dangerous, or burdensome. Thus one-who sells goods to be delivered at a certain time cannot excuse himself by saying that he expected to buy the goods, but could not.” (9 Cyc. 625; see, also, Beebe v. Johnson, 19 Wend. (N. Y.) 500, 32 Am. Dec. 518.)
In the case of Arentsen v. Moreland, 122 Wis. 167, 106 Am. St. Rep. 951, 99 N. W. 790, 65 L. R. A. 973, the late Chief Justice Cassoday, speaking for the court, said: “The authorities, both English and American, are to the effect that a vendor who agrees to convey what he at the time knows that he has no right to convey, because the title is in another, thereby assumes the risk of acquiring the title and making the conveyance, or responding in damages for the vendee’s loss of the bargain. As aptly stated by Judge Cooley: ‘ * * * Such contracts are speculative in character, and the party giving them understands the risk he assumes when the covenant is entered into.’ Such contracts for the future delivery of personal property have frequently been characterized by this and other courts as speculative in character. * * # One of the definitions of ‘speculate’ is to ‘take the risk of loss in view of possible gain.’ (Century Dictionary.) ”
Of course, the administrator may not personally profit from the estate, but this does not affect the status of the obligee in the contract. The defendants in this case may have been acting for, or in conjunction with, the heirs to the estate, or they may themselves have been heirs. A contract may be explained by reference to the circumstances under which it was made or the matter to which it relates.- (Revised Codes, see. 5036.)
The complaint shows that two contracts were signed contemporaneously. One was signed, “T. J. Lynde, Adm. Estate of Mary A. Black”; the other, “T. J. Lynde. W. S. Cobban. Hayes Cannon.” It appears to us, therefore, that the words “Adm. Estate of Mary A. Black” may have been merely descriptive, and that Lynde was not acting in a representative capacity. (See 2 Page on Contracts, sec. 1148.) There is an allegation in the complaint that the defendants were acting “in their personal capacity.” There is no express allegation that Lynde was acting in a representative capacity, and we think it may be gathered from the entire complaint that plaintiff intended to aver that he, also, was acting in his personal capacity. But, if we assume that he was acting as administrator, the result in this case is the same. The complaint alleges that Lynde died leaving no estate whatsoever, and therefore no proceedings were ever had looking to the appointment of a personal representative. In the case of Bauerle v. Long, 187 Ill. 475, 58 N. E. 458, 52 L. R. A. 643, cited by respondents, it was held that an executor, authorized by the will to sell real estate, had no implied power” to bind the estate by warranty deed, but only to convey whatever title the testator had, and hence no action could be maintained against him in his representative capacity for breach of an executory contract to make a warranty deed. The defendants in that case were sued in their representative capacity. In this ease the administrator was not sued at all, his co-obligors being the only defendants.
In the case last referred to the court makes, with approval, the following quotations: “In Vincent v. Morrison, Breese (Ill.), 227, the administrators undertook to covenant, in a deed of land sold to pay debts of their intestate, that the land was free from encumbrances, and the court say (page 231): ‘In relation to covenants the general rule is that an administrator has no power to charge the effects of the intestate by any contract originating with himself, and it seems from the current of decisions that his contracts in the course of his administration, or for the debts of his intestate render him liable de bonis propriis’ — citing Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83.
“In Mason v. Caldwell, 5 Gilm. (Ill.) 196 (48 Am. Dec. 330), the court say (page 207): ‘If an administrator or guardian, in his representative capacity, makes a contract or covenant which he has no right to make, and which is not binding upon the estate or ward, he is bound personally to make it good. The rule is well settled that an executory contract of an executor or administrator, if made on a new and independent consideration moving between the promisee and the promisor, is his personal contract, and does not, in the absence of authority given by statute or by will of the decedent, bind the estate.’ (11 Am. & Eng. Eney. of Law, 2d ed., p. 932, citing numerous cases.)
“In Austin v. Munro, 47 N. Y. 360, it is said: ‘The rule must be regarded as well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold or delivered, or other consideration moving between the promisee and the executors as promisors, are the personal contracts of the executors and do not bind the estate, notwithstanding the services rendered or goods and property furnished, or other consideration moving from the promisee, are such that the executors could properly have paid for the same from the assets and been allowed for the expenditure in the settlement of their accounts. The principle is that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. (Ferrin v. Myrick, 41 N. Y. 315; Reynolds v. Reynolds, 3 Wend. (N. Y.) 244; Demott v. Field, 7 Cow. (N. Y.) 58; Myer v. Cole, 12 Johns. (N. Y.) 349.) The rule is too well established in this state to be questioned or disregarded, and any departure from it would be mischievous.’ ” See, álso, 2 Page on Contracts, sec. 995, where the author says: “Executors are liable personally upon contracts which they attempt to make in their official capacity when they cannot bind the estate, unless they specifically contract against a personal liability” — and cases cited.
The judgment of the district court is reversed, and the cause is remanded, with directions to overrule the demurrer.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On May 20, 1907, and for some time prior thereto, the defendants Rocky Mountain Bell Telephone Company, hereinafter referred to as the “Bell company,” maintained a telephone exchange in Bozeman, and owned and maintained pole lines in various streets and alleys and had wires suspended from such poles, as a part of its telephone system. At all such times the Gallatin Light, Power and Railway Company, hereinafter referred to as the “Light Company,” owned and operated an electric light and power plant, and, as a part' of its plant, it owned ánd maintained certain pole lines in the streets and alleys of Bozeman and the wires attached to such poles. At all such times the Bozeman Milling Company and the Benepe-Stanton Grain Company, hereinafter referred to as the “private companies,” owned and operated a private telephone line from Bozeman to Belgrade, a distance of eleven or twelve miles. On May 20, 1907, John Mize was killed at a point near the private telephone line and nine or ten miles from Bozeman. His wife, as administratrix of his estate, brought this action against the Bell company and the light company to recover damages. It is alleged in the complaint that for a period of about two years prior to and including May 20, 1907, the Bell company had assumed and •exercised full charge, supervision, and control of the private telephone wire from Third Avenue North, to Tracy Avenue North, a distance equal to three city blocks, in the city of Bozeman. It appears from the complaint that the portion of the private telephone line just mentioned was strung upon poles belonging to the Bell company, which poles were set along an alley cutting both Third Avenue and Tracy Avenue at right angles. It appears also that the light company had wires strung to poles along Grand Avenue North — an avenue running parallel with and between Third and Tracy Avenues and cut by the alley at right angles also. On May 20, 1907, the private telephone wire, which crossed above the light wires at right angles, became detached from the Bell company’s poles, near the intersection of the alley and Grand Avenue, fell upon a wire belonging to the light company, and received a charge of about two thousand volts of electricity from the light wire. About nine or ten miles from Bozeman, the private telephone line, following the course of the public road, turned from north to west. For the purpose of securing the corner pole, a guy wire was attached to the pole near the top and between the two private wires, and then attached to a fence post on the outer line of the right of way of the Northern Pacific Railway Company. It appears that the guy wire touched one of the private telephone wires and also came in contact with one strand of fence wire. This fence ran south a short distance where it connected with another wire fence, called the “inner right of way fence,” and at a point on this inner right of way fence, about three-fourths of a mile from the point of intersection of the two fences, John Mize was at work in an irrigating ditch belonging to his employer, Young, on the late afternoon of May 20, 1907, when, coming in contact with a wire on the fence, he was killed. It is alleged that the current of electricity received by the private telephone line wire from the light wire was conducted along the telephone wire to the guy wire, thence over the guy wire to the outer right of way fence wire, thence over that wire to the wire of the inner right of way fence, and along the wire of the inner right of way fence to the point where Mize was at work, and that when he came in contact with this wire he received the charge of electricity and was killed thereby. It is charged that the defendants were negligent in the following particulars: 1 (a) The Bell company in permitting this private telephone wire to become detached from its poles, (b) The light company in permitting the insulation on its wires to become defective. (2) In failing to provide a guard or device at the point where the wires crossed, to prevent the wires from coming in contact. (3) In violating a city ordinance of the city of Bozeman. (4) In failing to break the contact between the two wires for a period of six hours or more. From a judgment rendered and entered in favor of the plaintiff, and from an order denying them a new trial, the defendants have appealed.
A review of the authorities cited would not serve any useful purpose. There is not any substantial conflict in the authorities upon the general rules of law applicable in negligence cases, and we might select cases from the briefs of appellants or respondent in support of the principles which we announce, with one or two possible exceptions. The difficulty which the courts generally experience is, not in ascertaining the rules of law, but in applying them to the facts of particular cases.
1. Legal duty: It is urged by counsel for appellants that they did not owe any legal duty to Mize. This contention is aptly answered in City Electric St. Ry. Co. v. Conery, 61 Ark. 381, 54 Am. St. Rep. 262, 33 S. W. 426, 31 L. R. A. 570, a ease in many respects similar to the one before us. The street railway company maintained a power line through certain streets in Little Eoek. White owned a private telephone line running at right angles to one of the railway company’s lines. The private telephone wire came in contact with the power line and received a supercharge of electricity. Conery came in contact with the private telephone wire and was injured. He recovered against the street railway company and White, the owner of the private telephone wire. On appeal by the street railway company the question now before ns was raised. The court said: “The next question is: Upon what duty of the appellant to the appellee can this action be based? The answer to it is: Upon the duty enjoined by the rule which requires everyone to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure. * * * This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles, cross-arms, and wires, and other apparatus, along streets and other highways. They are required to do so for the protection of persons and property.” (21 Am. & Eng. Eney. of Law, 2d ed., 476.)
2. Proximate cause: One of the principal contentions made in this case is that, assuming the negligence of the defendants, such negligence was not the proximate cause of Mize’s death, for the reason that the guy wire intervened and broke the causal connection between the negligence of the defendants and the death of Mize. The proximate cause of an injury is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred. (Goodlander M. Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; 1 Shearman & Redfield on Negligence, sec. 26; 6 Current Law, 757; Missouri Pac. Ry. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Claypool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509.)
What intervening cause will break the chain of sequence and so far insulate the first wrongdoer’s negligence from the injury as to relieve such wrongdoer? The courts have experienced some difficulty in answering this inquiry, and they are not altogether in harmony upon the subject; but to this extent they may be said to agree: That to relieve the original wrongdoer the result must be such that he could not reasonably have anticipated it. In 29 Cye. 499, the rule is stated as follows: “The mere circumstance that there have intervened between the wrongful cause and the injurious consequence acts produced by the volition of animals or persons does not necessarily make the result so remote that no action can be maintained. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequence, and if such result is attributable to the original negligence as a result which might reasonably have been foreseen as probable, the liability continues.’’ What ought to be foreseen or anticipated as the probable consequence of the wrongdoer’s negligence? In the first instance, it is not necessary to show that he ought to have anticipated the particular injury which did result; but it is sufficient to show that he ought to have anticipated that some injury was likely to result as the reasonable and natural consequence of his negligence. This is the meaning of section 6068, Revised Codes, and expresses the rule announced by this court in Reino v. Montana M. L. Dev. Co., ante, p. 291, 99 Pac. 853.
The evidence is conclusive upon one point: That with the current of electricity necessary to operate this private telephone line, and telephone lines generally, the wires are entirely harmless. The evidence also shows that telephone wires are frequently exposed where persons — even children — may come in contact with them. The defendants are chargeable with knowl edge of these facts, and therefore chargeable with knowledge that this private telephone line itself was, or wires leading from it were, likely to be so placed that persons might rightfully come in contact with one or more of them. In our view of this case, the manner in which the guy wire was attached is not of any consequence. If, as shown by the evidence, the current of electricity necessary to operate this private telephone line was harmless, then the owners of the private line might have attached their wires directly to the fence posts of the inner right of way fence (if they had permission to do so). We say this to emphasize our view that these defendants were chargeable with the consequence which might reasonably be expected to follow the charging of this private wire with a dangerous current of electricity, in view of the fact that telephone wires are likely to be exposed where persons, rightfully about their business, may come in contact with them. It will not do for defendants to say that they could only expect that this dangerous current would be carried over the private line, eighteen or twenty feet above the ground, to Belgrade. They were chargeable with knowledge that the current would go wherever there was a metallic substance to conduct it; and while it is not necessary in this ease to adopt the broad rule announced by Shearman & Redfield on Negligence, section 29, to the effect “that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not) would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind,” we do go to the extent of saying that these defendants ought reasonably to have anticipated that, by their negligence in permitting this private wire to become charged with a dangerous current of electricity, serious injury would result to some one if in fact the private wire, or a wire leading from it, was exposed as it might be exposed.
3. Was Mize a trespasser ? The evidence shows that Mize met death while at work in an irrigating ditch. The portion of the ditch in which he was at work at the time of his death is over and upon a portion of the right of way of the Northern Pacific. Bailway Company. Concerning this ditch, Young, the employer of Mize, testified: “I remember the occasion of his death. He was working for me at that time. * * My irrigating ditch is on the south side of the road and on the north side of the road also. Crossing the road it runs through a flume, and this ditch is made out of rocks, and he was cleaning this ditch when he came in contact with this fence, John Mize’s work would call him to the place where he was killed. * * * I found him lying under the fence dead. That ivas the right of way fence. He was lying with his body toward the flume, but he was as well as over the fence before that, kind of on his back in the irrigating ditch. * * • * It is my ditch, and heads not in a slough, but in a regular running stream there near the railroad track.” This evidence was not contradicted in any way and is sufficient to make out a prima facie ease that Mize was not a trespasser; but counsel for appellants insist that the railway company cannot alienate any portion of its right of way, and therefore Mize must be presumed to have been a trespasser, and Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, is cited. But that case is only authority for the proposition that title to a portion of such right of way cannot be acquired by adverse possession. It may be conceded that the Northern Pacific Bailway Company cannot alienate its right of way, or any part of it, so as to interfere with the full performance of the functions of the railway; but that an additional servitude may be imposed upon a portion of such right of way, or that the railway company may grant a license for such use of its right of way as will not interfere with the proper operation of its railway system, we entertain no doubt.
4. Measure of damages: Over the objection of defendants, the court permitted evidence to be introduced tending to show the marital relations of plaintiff and her husband up to the time of Mize’s death, and in instruction 34 the court advised the jury that, if they found for the plaintiff, then, in estimating the damages, they might take into consideration the pecuniary loss, if any, of the widow on account of her being deprived of the comfort, protection, society and companionship of her husband. In each of these instances we think the trial court was correct. Section 6486, Revised Codes, provides that “such damages may be given as under all the circumstances of the case may be just.” The authorities are not harmonious upon this question, but in California, where they have a statute similar to our section 6486 above, the rule announced has been in force for many years. (Beeson v. Oreen Mt. G. Min. Co., 57 Cal. 20; Cook v. Clay St. H. R. Co., 60 Cal. 604; Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269; Munro v. Pacific C. etc. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303; Morgan v. Southern Pac. Co., 95 Cal. 510, 29 Am. St. Rep. 143, 30 Pac. 603, 17 L. R. A. 71; Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139; Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 Pac. 1023; Wales v. Pacific Elec. M. Co., 130 Cal. 521, 62 Pac. 932, 1120; Green v. Southern Pac. Ry. Co., 122 Cal. 563, 55 Pac. 577; Green v. Southern Cal. Ry. Co. (Cal.), 67 Pac. 4; Dyas v. Southern Pac. Co., 140 Cal. 296, 73 Pac. 975; Evarts v. Santa Barbara C. R. Co., 3 Cal. App. 712, 86 Pac. 830.) While not directly deciding the question, this court, in Hollingsworth v. Davis-Daly Estates Copper Co., ante, p. 143, 99 Pac. 142, intimated that the rule we have announced would be followed.
5. Form of verdict: The verdict in this case reads as follows: “We, the jury in the above-entitled cause, find the issues herein in favor of the plaintiff, Georgie Mize, and against the defendants, Rocky Mountain Bell Telephone Company and Gallatin Light, Power and Railway Company, on each and all of the four causes of action set forth in the complaint herein, and fix and assess her damages at the sum of six thousand dollars ($6,000.00).” The complaint is drawn in four separate counts or causes of action, but in fact it states but a single cause of action and specifies separately the acts of negligence. While under our Code practice there may arise cases in which it is proper to set forth a single cause of action in separate counts, this is clearly not such a case. The verdict, too, is unusual in form; but these defects, we think, are not such as could have prejudicially affected the rights of either defendant. The verdict is in effect a general verdict and is sufficient. (5 Ency. of PL & Pr. 339; Lancaster v. Connecticut Mut. L. Ins. Co., 92 Mo. 460, 1 Am. St. Rep. 739, 5 S. W. 23.)
6. Instructions: Exceptions were taken by the appellants to-the action of the trial court in giving certain instructions and in refusing to give instructions asked by defendants; but, after a careful review of the instructions given and refused, we are unable to find any error prejudicially affecting the rights of either appellant. The charge, as a whole, seems to us to present the law of the case fairly.
7. The evidence: Without rehearsing the evidence, it is sufficient to say that in our opinion it is ample.to sustain the verdict. It tends to show such supervision and control of the private wire by the Bell company, at the point where the two wires came in contact, as renders that company liable for its negligence in permitting the wire to become detached and to fall upon the light wire. It is also sufficient to show the negligence of the light company in failing to keep its wire properly insulated. It is sufficient to go to the jury upon the question of the negligence of both defendants in failing to break the contact between the wires for many hours after they came in contact and before Mize’s death.
There was a palpable violation of the city ordinance, and neither of these defendants can escape liability by saying that the ordinance applies only to the other. While the ordinance is a grant of a franchise to the Bell company, it is more than that. Section 5 provides: “Whenever it is necessary for any electric light or power wire to approach or cross the line of any fire alarm, police telegraph, telegraph or telephone wires, the same shall not approach to or cross either of said wires at a distance of less than four feet either above or below said fire alarm police telegraph, telegraph or telephone wire.” This provision is a general municipal law applicable to both of these defendants (Hayes v. Michigan Cent. Ry. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Heidt v. Southern Telephone Co., 122 Ga. 474, 50 S. E. 361; Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Rep. 348, 11 South. 51, 16 L. R. A. 43), and its violation was prima facie negligence (Commonwealth, Electric Co. v. Rose, 214 Ill. 545, 73 N. E. 780; 1 Thompson on Negligence, sec. 1196; 1 Shearman & Red-field on Negligence, sec. 13).
It is clear from this evidence that neither of these defendants took any precaution to prevent the wires, where they crossed, from coming in contact, other than to fasten the wires to poles. In 1 Joyce on Electricity, section 490a, the author says: “Where electric wires are maintained by different companies in the streets, obligations are by law imposed upon each, not only with respect to the others, but also to individuals and to the public in general to prevent a contact of the wires, which may result in injury to property or person. The question as to the duty of such companies arises most frequently where an injury has resulted from the contact of a telegraph or telephone wire with an electric light or trolley wire by which the dangerous current of the latter is conveyed into the former. From a consideration of the several cases in which the liability of a company under such circumstances is considered, the rule may be deduced that, where companies of such a characteroecupy the streets with their poles and wires, each company is under the obligation to exercise reasonable or due care — that is, a degree of care which is reasonable in view of the circumstances and commensurate to the dangers and risks involved— to prevent its wires from coming into contact with the wires of another company, and that a company which has been negligent in the performance of its duty in this respect will, in the absence of contributory negligence on the part of the persons injured, be liable for the injury resulting from such contact. ’ ’
The evidence was amply sufficient to show negligence on the part of the Bell company in failing to use well-known simple devices to prevent the private wire from coming in contact with the high tension wire of the light company. The evidence upon this point, so far as it relates to the light company, is very slight; but, after all, it was a question for the jury, under all the circumstances of the case, to say whether the light company had used reasonable care to prevent the contact of the two wires. In discussing this subject in a case arising from an injury received from crossed wires, the supreme court of Wisconsin, in Block v. Milwaukee St. Ry. Co., 89 Wis. 371, 46 Am. St. Rep. 849, 61 N. W. 1101, 27 L. R. A. 365, said: “The negligence which is alleged and claimed against the defendant is its omission to place guard wires over its trolley wires in such a way as to prevent the telephone wires, in case of their falling from any cause, from falling upon and coming in contact with the trolley wires. # * * No doubt it is the duty of the defendant to use such customary and approved appliances as are known and used in the business of operating electric railways. So far as reasonable knowledge, in the present state of the science and the practical use of electricity as a motive power for street railways, and reasonable foresight, can go, it is bound to guard the public against the perils attendant upon this use of electricity; but it is liable only for what is known as reasonable care. The present state of the science, and the present practical knowledge of the most practical and effectual means and methods of guarding against such perils as are incident to its use, are a most important element in the question of what is reasonable care. In the present condition of the science and of the practical knowledge on this subject, it cannot be said, as matter of law, what method of guarding the wires shall be required, nor whether any guards shall be required, for it is not known to the law that any method now known will prove effective; but it is a question for the jury, under all the facts in the cause, to determine whether the method actually used was negligent.”
The case of Hamilton v. Bordentown Electric Light Co. et al., 68 N. J. L. 85, 52 Atl. 290, presents facts very similar to those in the case before us. For brevity the companies are referred to as the “light company,” the “telegraph companies,” and the “telephone company.” It appears that the low tension wire of the telegraph companies crossed above the high tension wire of the light company, and some distance away crossed under the low tension wire of the telephone company. The telegraph wire was permitted to come in contact with the wire of the light company and received a supercharge of electricity. The telephone wire came in contact with the telegraph wire and likewise received a dangerous current. Plaintiff’s intestate, attempting to remove the telephone wire, was killed. The light company and the telegraph companies were held liable, and. speaking of their duty, the court said: “It is assumed that the defendants were each maintaining wires in the public highways in the exercise of a franchise. Hence each was bound to take reasonable care not to injure other users of the street. It was the duty of the electric light company to use reasonable care that other uninsulated telegraph wires that crossed it should not be alloAved to come in contact with its wire, which was insulated, and which carried a powerful electric current, and remain for so long a time in contact therewith as to wear away the insulation and divert the poAverful current to the telegraph wire, to the probable injury of persons who should come in contact with the telegraph wire, or in contact with other wires which might be brought in touch with the charged telegraph wire. It was the duty of the three companies maintaining the telegraph wire to use reasonable care to prevent their wire from coming in contact Avith the highly charged electric light wire and remain in contact therewith in such a way and for so long a time as to wear off the insulation and divert the current to its OAvn wire, to the danger of those who should touch it or touch another Avire with which it might come in contact. (New York etc. Telephone Co. v. Bennett, 62 N. J. L. 742, 42 Atl. 759.)” (See, also, Western Union Tel. Co. v. State, 82 Md. 293, 51 Am. St. Rep. 464, 33 Atl. 763, 31 L. R. A. 572.) But in the view we take of this complaint, it was not necessary for plaintiff to prove every act of negligence charged. She did prove to the satisfaction of the jury facts sufficient to show that the negligence of these defendants directly produced the death of Mize.
The ease was fairly submitted, and the correct result appears to have been reached. The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
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23
] |
MR. JUSTICE HOLLOWAY,
delivered the opinion of the court.
This action was originally brought against the New York Life Insurance Company to recover upon a policy of insurance. The insurance company appeared and admitted its liability, but set forth that Hannah Moran, individually and as administratrix of the estate of Patrick H. McGuire, deceased, claimed the amount due on the policy, and asked leave to deposit the amount in court and to have Hannah Moran substituted as defendant. The order of substitution was made, and plaintiff thereupon redrafted her complaint, and asked for an order for the publication of the summons, as the defendant Moran was a resident of the state of Pennsylvania. The order of publication was made, but, instead of causing the summons to be published and a copy to be mailed, the plaintiff had a copy of the summons, together with a copy of the complaint, served upon defendant Moran in Pennsylvania on April 16, 1908. On May 7, 1908, the default of the defendant Moran was entered for failure of an appearance, and, proof being made, a judgment was rendered in plaintiff’s favor. On May 8, 1908, the defendant Moran moved the court to vacate the judgment and set aside the default on the ground that the judgment was premature. This motion was granted, and, from the order granting it, the plaintiff appealed.
But a single question is presented for solution, viz.: When is the service of summons complete upon a defendant residing in another state, in the event a copy of the summons, together with a copy of the complaint, is served in lieu of publication and mailing, when an order of publication has been made? In 1879 our statute read as follows: “When publication is ordered, personal service of a copy of the summons and complaint out of the territory is equivalent to publication and deposit in the post-office, and in either ease the service of the summons is complete at the expiration of the time prescribed by the order of publication.” (Rev. Stats. 1879, First Division, sec. 74.) In 1887 the statute was changed to read: “In all cases where an order of publication is made, personal service of the summons and a copy of the complaint shall be deemed a compliance with said’ order and the provisions of this Act. iS * # The service of' the summons shall be complete on the day the fourth publication shall be made in said newspaper or on the day the said summons and copy of the [same] shall be personally served on the said defendant.” (Compiled Statutes, 1887, First Division, sec. 74.) In 1895 the statute was again changed to read as fol lows: “When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit' in the postoffice. The service of summons is complete on the day of the fourth publication.” {Revised Codes, sec. 6521.)
We have not been able to find another statute like our present one above. The statute in force in New York in 1870, and for many years prior thereto, read: “When publication is ordered, personal service of a copy of the summons and complaint, out of the state, is equivalent to publication and deposit in the post-office.” (Voorhies’ New York Annotated Code, sec. 135, p. 167.) “In the eases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.” (Section 137.) Speaking of these provisions, the court of appeals of New York, in Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84, said: “It is held, and we think correctly, in Tomlinson v. Van Vechten, & How. Pr. 199, and in Abrahams v. Mitchell, 8 Abb. Pr. 123, that, where personal service is thus made out of the state, such service is not complete until the time prescribed for the publication has expired. Section 137 requires the lapse of this time to render the service complete in all the cases mentioned in section 135. It makes no exception where personal service is, pursuant to the same section, substituted for actual publication.”
The statute of Idaho is identical with our statute of 1879, and in construing it the court in Bowen v. Harper, 6 Idaho, 654, 59 Pac. 179, said: “When publication is ordered, personal service of a copy of the summons and complaint out of the ter'ritory is equivalent to publication and deposit in the postoffiee; and in either case the service of the summons is complete at the expiration of the time prescribed by the order for publication. * * * The qualifying words, ‘in either case,’ in the last clause of the statute under consideration, relate to both of the modes of serving the summons upon the absent defendant provided for in said statute; i. e., in ease of publication of the sum mons and in case of personal service out of the state. In the first case the service becomes complete at the expiration of the time prescribed in the order for publication, computing from the date of the first publication, and in the last ease it becomes complete at the expiration of such time, computing from the date of making the personal service out of the state.”
These statutes appear so plain that we wonder that any contention could ever arise as to their meaning. For some sufficient reason our legislature in 1887 changed the statute so that in the event a copy of the summons, together with a copy of the complaint, was served out of the state in lieu of publication and mailing, the service was complete on the day the summons and copy of the complaint were served. The provision of 1879 was definite and certain in meaning, as likewise was that of 1887, and we are unable to understand why these or either of them should have been abandoned for the indefinite and uncertain provision of our present Code; but, when the change was made in 1895, we must presume that the legislature intended to establish a different rule, otherwise the provision of 1887 would have been retained. This is a canon of construction recognized generally.
Section 6521, then, provides for two modes of service upon a defendant residing in another state — one by publication and mailing, and the other by delivering to the defendant personally a copy of the summons together with a copy of the complaint. The section then concludes: “The service of summons is complete on the day of the fourth publication.” What service? Manifestly the service just mentioned in the preceding portion of the section; that-is, the service by publication and mailing or by delivering a copy of the summons together with a copy of the complaint. The word ‘ ‘ equivalent ’ ’ means: ‘ ‘ Equal in worth or value, force, power, effect, import and the like.” (Webster’s International Dictionary.) In other words, as a means of giving notice, the service of a copy of the summons, together with a copy of the complaint, is of equal worth with publication and mailing. The fact that the provision of the statute of 1887 was abandoned would seem to indicate that the legislative intent was to give to a defendant served out of this state more time for appearance than is extended to one served in this state, and whether that service is made by publication and mailing or by delivering a copy of the summons, together with a 'copy of the complaint to the defendant personally, the person so served shall have the full period of four weeks and twenty days within which to make his appearance. This appears to be the object and meaning of the statute, if its meaning can be derived from the language employed, and the purpose to be accomplished.
Under this view the order is correct, and is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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MR. JUSTICE SMITH
delivered the opinion of the court.
The opinion of the court on a former appeal of this case is found in 35 Mont. 451, 119 Am. St. Rep. 864, 90 Pac. 168. The cause has been retried in the district court of Silver Bow county. Plaintiff had a verdict and judgment, and defendant appeals from that judgment, and also from an order denying a new trial.
On the twenty-eighth day of October, 1907, the day preceding the date set for the second trial, John M. Barber filed an affidavit in the cause, wherein he alleged as follows: ‘ ‘ That he is the real party in interest as defendant in the above-entitled action; that the said John J. Quinn acted in the capacity of sheriff at the instigation and request of this affiant, and that this affiant is responsible to the said defendant for any judgment which may be rendered against him. That by reason of the premises he is; the agent of the said defendant, attending to the defense and preparing for the defense of the above-entitled action. That the above-entitled action is now pending in the above-entitled court. That affiant has reason to believe, and does believe, that he cannot have a fair and impartial trial or hearing in the above-entitled court before the Honorable George M. Bourquin, judge presiding, * * * by reason of the bias and prejudice of the said judge, before whom said action is pending.” The record recites that the court made an order “ignoring the said affidavit,” and directing that the trial proceed. To this action an exception was saved.
Section 6315, Revised Codes, provides that a judge must not sit or act in any action or proceeding when any party makes and files, at any time before the day fixed for the hearing or trial, an affidavit to the effect that he has reason to believe, and does believe, that he cannot have a fair and impartial hearing or trial before said judge by reason of the bias or prejudice of the judge. This Code provision establishes the law of the state respecting the subject of disqualification of a district judge, and should be liberally construed, with a view to effect its object and promote justice. (Revised Codes, secs. 4, 6214, 8061.)
The complaint alleges that the defendant- Quinn was acting in the capacity of sheriff. The answer sets forth that he seized the property in controversy by virtue of a writ of attachment, in the case of J. M. Barber v. J. A. Fay. The reply avers that the writ of attachment was void, for the reason that it was issued before the summons in the ease was issued — “the writ of attachment having been issued November 2d, and the only summons in the action having been issued on the following day, to-wit, November 3d.” The complaint further alleges that on November 4th the plaintiff Gehlert made a third-party claim upon the sheriff for the property seized under the writ of attachment against Fay, and the sheriff refused to deliver the property over to him. Section 6673, Revised Codes, provides that when a third person claims the attached property, the sheriff shall deliver the same to him, unless the plaintiff, within ten days after receiving notice thereof, give the sheriff a good and sufficient bond to indemnify him against loss or damage by reason of retaining the property.
It is argued by the respondent that Barber should have intervened, in order to become a “party” within the meaning of section 6315, Revised Codes, but we cannot agree with this contention. The sheriff had no real interest in the property attached. The statute requires that the plaintiff file with the clerk, before the writ is issued, an undertaking conditioned to indemnify the defendant in case the plaintiff fails to recover a judgment or the court should finally decide that he was not entitled to an attachment. (Revised Codes, sec. 6659.) And in ease the sheriff, at the'direction of the plaintiff, seizes property which is afterward claimed by a third person, he may demand an undertaking of indemnity as a condition of retaining possession. (Sec. 6673, supra.) It can make no difference to him what the relative rights of the parties are. The practice is, in the event the sheriff is sued in conversion for property attached and retained by him, to deliver the papers served on him to the plaintiff in the original case, or his attorney, and pay no further attention to the matter. Having furnished an obligation to hold the sheriff harmless from any judgment that may be recovered against him, self-protection impels the attaching creditor to interpose a defense to the action, if he has any, in which event it is usual for the sheriff perfunctorily to verify the answer.
Section 7191, Revised Codes, provides that, if an action be brought against a sheriff for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered thereon shall be conclusive evidence of his right to recover against such sureties, and the court may, on motion upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs.
There was no way in which the alleged disqualification of the judge could affect Quinn personally. He was not interested in the result of the suit, but Barber was. Therefore, we have no hesitancy in holding that, as Barber was the person whose interests were being litigated, he was entitled to file the disqualifying affidavit. Undoubtedly, the learned district judge applied a strict construction to section 6315, Revised Codes, supra; but we think that section falls within the provisions of sections 4, 6214 and 8061, Revised Codes, supra, and that the construction we place upon it will best effect the object sought to be attained by its enactment.
Respondent contends that the action of the court in ignoring the affidavit is not specified in appellant’s brief as an error relied upon, and cannot be reviewed; but we find the matter clearly-set forth in the brief in a paragraph by itself, and regard this as a sufficient statement that it is relied upon.
Defendant objected to the introduction of any evidence by plaintiff, for the reason that the allegations of the reply, to the effect that the writ held by the sheriff was void, were a departure from, and inconsistent with, the allegation of the complaint that the defendant was acting as sheriff, and that the complaint, as modified by the reply, did not state facts sufficient to constitute a cause of action against Quinn individually. Also, at the conclusion of plaintiff’s affirmative ease, the defendant moved for a nonsuit on the ground, among others, that the testimony showed that the seizure was made by'a deputy sheriff, and under the allegations of the reply it was incumbent upon the plaintiff to show that, if the writ was void, the sheriff made the seizure personally. The ground of these contentions is that, although Quinn assumed to act as sheriff, if his process was defective or void, he acted individually, and not officially. But we are of opinion that his status was not changed by the infirmity in his process, although it may thereby have been rendered void. He purported to act by virtue of it, and was none the less acting officially. (City of Philipsburg v. Degenhart, 30 Mont. 299, 76 Pac. 694.)
We have read the testimony offered by the plaintiff, and conclude that he made out a case sufficient to warrant the court in submitting the issue to the jury.
Other errors are assigned by the appellant, but we think the foregoing discussion disposes of all those questions that will probably arise on a retrial.
The judgment and order appealed from are reversed, and the cause is remanded for a new trial.
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.
The defendant was convicted of conducting a gambling game and appeals from the judgment. The facts are practically the same as in the case of State v. Ross, ante, p. 319, 99 Pac. 1056, and this appeal was submitted upon the briefs in that ease.
For the reasons stated in State v. Boss, above, the judgment is affirmed.
Affirmed.
Me. Chief Justice Beantly and Me. Justice Smith concur.
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MR. JUSTICE SMITH
delivered the opinion of the court.
The original complaint in this case was filed in the district court of Silver Bow county on July 30, 1901. A judgment, thereafter rendered in favor of the plaintiff on the pleadings, was reversed by this court. (See 29 Mont. 317, 74 Pac. 734.) General and special demurrers were filed to the original complaint, but the record does not disclose that the court ever passed upon the same, and afterward the defendant filed an answer in which it denied each and every allegation of the complaint. On February 2, 1907, the plaintiff filed his amended complaint, and the court afterward sustained a general demurrer thereto. On March 6, 1907, a second amended complaint was filed, and to that pleading the defendant, among other allegations, answered that the alleged cause of action was barred by virtue of the provisions of certain statutes of limitations. Upon the trial the court below sustained the defendant’s contention, refused to allow plaintiff to introduce any evidence under his second amended complaint, and entered judgment for the defendant, from which judgment an appeal is taken.
It is conceded that if the defendant’s premises are correct, then its conclusion that the cause of action is barred is also correct. It contends through its counsel that, as the original complaint did not state facts sufficient to constitute a cause of action, and the second amended complaint was not filed until nearly six years after the cause of action is alleged to have accrued, the statute has run and the cause is barred. The action was brought to recover damages for a wrongful interference with a ditch and water right. Plaintiff originally alleged that the defendant “is” a corporation, and plaintiff “is” the owner of the ditch and water right. He then proceeded to aver that the water right and ditch had been used for the purpose of irrigating “plaintiff’s ranch, called the McCauley ranch, for more than 10 years last past,” and that “the defendant, in the years 1900 and 1901, * * * injured the plaintiff’s said ditch, * # # all of which has resulted in damage to the plaintiff. * * * ” The defendant first filed a so-called plea in abatement, setting forth that its true name is Oregon Short Line Railroad Company, instead of the Oregon Short Line Railway Company, and afterward entered a general appearance and filed an answer, and has been in court ever since. The second amended complaint alleged that at all times mentioned therein the defendant was a corporation, and the plaintiff was the owner of the ditch and water right. Defendant’s counsel argues in his brief that the original complaint was fatally defective for want of allegations that the defendant was a corporation, and the plaintiff was the owner of the ditch and water right, at the time the acts of the defendant were alleged to have been committed. Plaintiff’s counsel does not controvert this proposition, and perhaps unfortunately so, as all of the members of this court believe that the question is a close one, and the writer of this is of opinion that the complaint was sufficient. (See Tennison v. Tennison, 114 Ind. 424, 16 N. E. 818; Kimball & Fink v. Borden, 95 Va. 203, 28 S. E. 207; Taylor v. Perry, 48 Ala. 240; Sargent v. Steubenville etc. R. R. Co., 32 Ohio St. 449; Gage v. Wayland, 67 Wis. 566, 31 N. W. 108; Peck v. Peck, 35 Conn. 390; Pittsburgh, C., C. & St. L. Ry. Co. v. Harper, 11 Ind. App. 481, 37 N. E. 41; Flenniken v. Buchanan, 21 S. C. 432; Prindle v. Caruthers, 15 N. Y. 425; Eans’ Admr. v. Exchange Bank, 79 Mo. 182; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503.) However, appellant says in his brief that the only question to be discussed is, whether a suit is commenced in a court of record by filling a complaint, regardless of whether sufficient facts are stated to constitute a cause of action or not, and we shall confine ourselves to that question, which is a new one in this state.
There are many cases in the books which hold that, where the amendments offered disclose a clear departure from law to law, or from fact to fact, where an entirely new claim or demand is for the first time asserted, or where an additional cause of action is brought forward by way of proposed amendment, the opera-lion of the statute of limitations is not suspended by filing the original complaint. There appears to be little, if any, diversity of opinion among courts and text-writers as to the law in such cases. (25 Cyc. 1308;. Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.) Then there is a class of cases holding that where the original complaint states a cause of action, but does it imperfectly, and afterward an amended f om plaint is filed correcting the defect, the plea of the statute of limitations will relate to the time of filing the original complaint. (25 Cyc. 1307.) Again, there are cases holding that where the original complaint states no cause of action whatever, it will not arrest the running of the statute, and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action, in reckoning the statutory period of limitation (25 Cyc. 1309), and these are the eases relied upon by the respondent.
As a copy of the original complaint is before us, we have no hesitancy in saying that the filing of the same constituted at least a h-ona fide attempt to commence an action. It would be interesting to inquire, if we might do so, whether it actually fails to state a cause of action, or is kimply uncertain in its allegations. Another interesting question which might have been presented is whether there may not be a distinction between a complaint which merely omits some formal allegation, or is imperfect of statement, and one from which it clearly appears that the plaintiff has no cause of action, or has filed what the court would say is no complaint at all, even though a general demurrer to either would be well taken. The courts of Illinois and Kansas have laid down, and consistently adhered to, the rule that an amendment to a declaration or complaint, so as to state for the first time a cause of action, is equivalent to bringing a new suit as of the date of the amendment, notwithstanding the original declaration or complaint was filed within the statutory period. (Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N. E. 266; Illinois Central R. Co. v. Campbell, 170 Ill. 163, 49 N. E. 314; Mackay v. Northern Milling Co., 210 Ill. 115, 71 N. E. 448; Missouri, K. & T. Ry. Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, 3 L. R. A., n. s., 259.) On the other hand, we have the dissenting opinion, in the case last cited, of Chief Justice Doster, in which it is said: “I dissent from the judgment in this case, and from so much .of the opinion as applies the statute of limitations-to the case of defendant in error, and am authorized to say for Justice Ellis that he also dissents. The majority opinion is entirely too technical. The original petition was deféctive because incomplete in its formal allegations. It simply omitted the statement of the consideration for the promise sued on. The amendment merely supplied the allegation of that element of the contract. Now, in such cases we understand the rule to be that petitions are amendable even after the running of the statute of limitations; that is, the incomplete allegations may be helped out by amendment. However, one may not introduce a new cause of action into a ease by way of amendment of his petition after the period of limitation has run against it. He may not, under the guise of amendment, change his cause of action from one sued on during its life to one against which the bar of the statute has run, nor may he by way of amendment tack a barred cause of action onto one against whieh the statute has not run. The decisions cited in the majority opinion are instances of changes from one cause of action to another,, and do not constitute precedents for the ruling made in this case. We would pursue the subject further, and collate the authorities on this point, but' for the fact that the decision made can be shown to be erroneous upon plain statutory grounds.”
In the case of Prokop v. Gourlay, 65 Neb. 504, 91 N. W. 290, the supreme court of Nebraska held that, where the owner of personal property delivered it to another for sale on commission, and no time was fixed within which such sale was to be made, the law would imply a reasonable time, and a petition which failed to allege that a reasonable time had expired for making such sale was fatally defective. The original petition was afterward amended in the court below by adding the allegation that' a reasonable time had elapsed, and the plaintiff thereafter appealed from a judgment in favor of the defendant. The supreme court said: “A motion was made by the defendants to strike the amended petition, for the reason that it was not' an amendment, but set up a new cause of action, and did not accrue within four years, and that, so far as amended, it was a departure from the original cause of action in the justice court. This motion was overruled. A demurrer was then filed to the petition, and sustained upon the ground that the amended petition set up a new cause of action, and was therefore barred by the statute of limitations, and the cause was thereupon dismissed. * * * Without considering whether the question proposed can be properly raised by demurrer, it will be seen that there is only one question presented, and that is whether or not the amendment to the petition was such as to set' up a new cause of action, or whether the additional facts alleged were merely an amplification of the original. From the opinion -of Commissioner Albert, it appears that the judgment based upon the first petition was reversed for the reason that, the petition having failed to allege that a reasonable time had elapsed after the delivery of the organ to the bailee, it was insufficient to state a cause of action in conversion. The only additional allegations in the amended petition t'o those in the bill of particulars upon which the action was begun are that the defendants had the property for a reasonable time, and did not sell the same, that a reasonable time within which 'to sell it would be from six to eight months, and that the reasonable value of the property was the sum of $68. It is obvious that the subject matter of the action is the same, that the cause of action is the same, and the relief sought is the same in these several pleadings. The grounds of the action are the delivery of possession of the property to the defendants as bailees, the demand made upon them by the plaintiff for its return, and the refusal and conversion to their own use; the only additional fact alleged being that they had been in possession of the property a reasonable length of time within which to make the sale before the plaintiff made the demand. It is elementary that, where the identity of the cause of action and the relief demanded are the same, a ehange in the form of the allegations, or an additional allegation amplifying the original petition, does not set up a new cause of action. No new wrong is charged upon t'he part of the defendants by the amended petition. The action originally was for the wrongful conversion of the organ, though the cause was defectively stated, and the amended petition merely supplies a necessary allegation omitted in the former pleading. This is allowed by section 144 of the Code of Civil Procedure. The statute of limitation ceased to run upon the beginning of the action in the justice’s court; and, the cause of action being the same, it is not now barred. ’ ’ (Gourlay v. Prokop, 71 Neb. 607, 99 N. W. 243, 100 N. W. 949. See, also, Norman v. Central Ky. Asylum,, 26 Ky. Law Rep. 71, 80 S. W. 781; Alabama etc. R. R. Co. v. Thomas, 89 Ala. 294, 18 Am. St. Rep. 119, 7 South. 762; Tucker v. Mayor etc., 4 Nev. 20; Turner v. Mitchell, 22 Ky. Law Rep. 1784, 61 S. W. 468; Missouri, K. & T. Ry. Co. v. McFadden, 89 Tex. 138, 33 S. W. 853.) The supreme court of Alabama has gone further, perhaps, than any other court in applying the principle contended for by the appellant. (See Agee v. Williams, 30 Ala. 636; Sublett v. Hodges, 88 Ala. 491, 7 South. 296.)
But, after all, the question presented must be determined in the light of our own Code provisions. Title II of the Code of Civil Procedure is headed “Time of Commencing Actions.”' Chapter I of that Title is headed “The Time of Commencing Actions in General,” and section 6428, Revised Codes [section 470, Code Civ. Proc. 1895], reads as follows: “Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special eases, a different limitation is prescribed by statute.”' Chapter II is entitled “The Time for Commencing Actions for the Recovery of Real Property. ’ ’ Chapter III is entitled ‘1 The Time of Commencing Actions Other Than for the Recovery of Real Property.” Chapter IV is entitled “General Provisions as to the |Time of Commencing Actions.” And section 6457, Revised Codes, being the first section under this last chapter, reads as follows: “An action is commenced within the meaning of this title, when the complaint is filed.” Section 6464, Revised Codes, provides as follows: “If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merit's; the plaintiff, or, if he dies, and the cause of action survives, his representative may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such reversal or termination.” This court' in Glass v. Basin & Bay State Min. Co., 35 Mont. 567, 90 Pac. 753, said: “A judgment rendered on a demurrer to the complaint may or may not be a judgment on the merits, depending upon the circumstances of each case. If the judgment determines the merits of the controversy as distinguished from the merits of the pleading attacked, it is a judgment on the merits; * * * otherwise it is not.” And in Kleinschmidt v. Binzel, 14 Mont.(31, 52, 43 Am.. St. Rep. 604, 35 Pac. 460, 464, the court said: “The authorities support the proposition urged by respondent that if the alleged canse of action is submitted on the merits by demurrer, admitting the facts alleged, but placing over against them in the judicial scale the proposition of law that the facts pleaded and thus admitted are insufficient to warrant judgment in favor of the pleader, and upon due weighing of the law and the facts, those facts are adjudged insufficient by sustaining the demurrer, and this ruling is allowed to stand, those facts thereby pass under the rule of things adjudged; and the party against whom such adjudication proceeds, as well as his privies and representatives, are thereby barred from again asserting the same fact's in another action pertaining to the subject as effectually as though such facts were found from the proof, or admitted ore tenus in the course of the trial. Such appears to be the rule deducible from the authorities, without much conflict. * * * But this rule should always, be stated and applied with due regard to some modifying conditions, which it is not permitted to violate. Thus, when the pleader has submitted to the ruling of the court on demurrer, against the sufficiency of the cause of action or defense, as stated, that ruling would not bar him, or those in privity with him, from again asserting the same facts, accompanied by additional allegations which complete the statement of a good cause of action or defense.”
If it be true that when the statutory period has expired pending the decision of the court on demurrer to the complaint, which decision does not determine the cause on the merits, the-party may commence a new action for the same cause within a year, asserting again the same facts, accompanied by additional allegations which complete the statement of a good cause of action, then it would seem reasonable to conclude that the filing of the original complaint, which was defective for want of such “additional allegations,” did in fact have the effect of arresting-the operation of the statute, and was the commencement of an action, and it cannot be said in this state that the action is always, barred unless a good complaint is filed in the first instance. Indeed the language employed in section 6464, supra, may perhaps be construed as a legislative recognition of the principle: that an action is commenced by filing what purports to be a complaint, whether it states facts sufficient to constitute a cause of action or not. But it is suggested that such a rule would allow the filing of any sort of document designated a complaint to arrest the running of the statute, even a blank, or other paper, which was in no sense a complaint; that it would be impossible to determine what was a complaint', and what not, and therefore impossible to decide whether or not the action was commenced. But there is a weakness in this suggestion. Surely, courts are competent to say whether an alleged pleading is or is not a complaint. Analogous questions are being constantly decided. But there are other statutory provisions shedding light upon the question. Section 8079, Revised Codes, defines an action as an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Section 7188, Revised Codes, reads as follows: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” It would seem natural t’o inquire, in this connection, whether this action was pending from July 30, 1901, to March 6, 1907, during which time the defendant appeared generally and answered the original complaint, filed two demurrers, and brought a judgment for t'he plaintiff to this court for review on appeal.
But we are able to place our decision upon broader and more substantial grounds than any of those above suggested, although the statutes just noticed must not be lost' sight of in construing the ones we are about to cite. Section 6532, Revised Codes, provides that the complaint in an action must contain a statement of the facts constituting the cause of action in ordinary and concise language. The defendant may demur to the complaint for want of a sufficient statement of facts, and this objection is never waived. (Revised Codes, sec. 6539.) The plaintiff may amend once as of course before answer or demurrer filed (Revised Codes, sec. 6588). The court may, in furtherance of justice, allow a party to amend any pleading by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may likewise, in its discretion, after notice, allow an amendment to any pleading in other particulars (Revised Codes, sec. 6589). Upon the decision of a demurrer, the court may, in its discretion, allow the party in fault to plead anew or amend (Revised Codes, see. 6591). This last statute is taken advantage of daily in the courts, and is, of course, a legislative declaration that a pleading which is in fact a complaint may be amended, even though it fails to state facts sufficient to constitute a cause of action; that such a pleading is not a mere nullity, but is something which may be amended. What, then, is the effect of the amendment % As a general rule, an amendment properly allowed relates back 'to the date of the original pleading or process. (Rutherford v. Hobbs, 63 Ga. 243; Woody v. Hinds, 30 Mont. 189, 76 Pac. 1; Martin v. Coppock, 4 Neb. 173.) In the Georgia case last cited the court said: “What is there, in a misdescription of the plaintiff, or in a deficient description of him or of his title, which renders it necessary, or even proper, that amending it should destroy the identity of the action when various other amendments, equally material to a recovery, might be made without working any such result? Once settle that a given amendment to a declaration can properly be made — that is, that’ it is both authorized and appropriate — and it follows logically that the making of it tends to preserve and forward the action, and not t'o overthrow or extinguish it. To that end was the privilege of amending established. Amendment is completion of the incomplete or correction of the incorrect, and as well might it be said that judicious additions to or alterations of an edifice will cause it to fall, as that' judicious amendment to a declaration will destroy the case. And if the suit is in legal identity the same suit after the amendment as it was before, there would be, and could be, no running of the statute of prescription whilst it was pending, the principle of unity compre bending botb tbe sole plaintiff and bis single and only cause of action.” (See, also, Sanger v. City of Newton, 134 Mass. 308.) And so in tbe ease at bar. Tbe plaintiff made a bona fide attempt' to commence an action by filing a complaint containing insufficient allegations as to the legal capacity of tbe defendant and the plaintiff’s ownership of tbe property alleged to have been injured. A general demurrer to tbe complaint was sustained, and tbe court properly allowed the plaintiff to amend. Tbe amendments supplemented tbe allegations of tbe original complaint, perfected tbe only cause of action claimed by tbe plaintiff, and therefore related back to tbe date of filing tbe original complaint.
We are of opinion that the court below was in error in bolding that tbe action was not commenced by filing tbe original complaint, and that tbe operation of tbe statute of limitations was not arrested by filing that pleading. Tbe judgment appealed from is reversed, and tbe cause is remanded for further proceedings in accordance with tbe views herein expressed.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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0,
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24,
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] |
Per Curiam.
Respondent’s motion to dismiss the appeal herein is, after dne consideration, sustained and the appeal accordingly dismissed.
|
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] |
Per Curiam.
It is this day ordered that the appeal herein be, and the same is hereby, dismissed in accordance with motion of appellant.
|
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Per Curiam.
This cause having been set for hearing this day, and it appearing that no briefs have been filed herein; it is ordered that this appeal be and the same is hereby dismissed.
|
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] |
ME. COMMISSIONER CLAYBEBG
prepared tbe opinion for the court.
This is an action to obtain relief from a tax deed to lot 1, block 25, Hauser Addition to the city of Helena. The plaintiff alleges that his agent applied to the county treasurer in 1899 to redeem the lot from tax sale and pay all delinquent taxes thereon, and that the county treasurer’s office informed him that the taxes of 1896, 1897 and 1898 were all that were delinquent, giving the amounts due for taxes for those years; that as a matter of fact the taxes for 1895 had not been paid, and a sale of the lot had been made for the taxes of that year, and a certificate of sale had been given to. the defendant, Cullen; that, after the deed had been given by the county treasurer to. said Cullen, the plaintiff tendered to him $250 in gold, the amount, paid by him in purchasing said- lands^ together with interest, and also the amounts paid by him for taxes‘on the property subsequent to the year 1895. The defendant denied the allegations, of this complaint generally, except that the tax deed had been delivered to him, and that there had been tendered to him $250, which he admitted. The case was heard, and the court below entered a decree in favor of defendant, from which this appeal is taken. The appeal is from the judgment, and all the-record contains is the judgment roll.
.Counsel for appellant presents to tbis court three propositions which he insists are conclusive that the court erred. They are as follows: First, that it was the duty of the county treasurer’s office, upon inquiry, to state truthfully the condition of affairs-, and that, by the mistake of that office,,plaintiff was not informed of the fact that the property had been sold for taxes for the year 1895 ; second, that under the requirements of the'Political Code the county commissioners must designate the paper in which the delinquent tax notice and notice of sale must be published, and that the commissioners never made such designation, and, further, that the publication of the notice was not for a sufficient length of time; third, that a duplicate assessment book was. not made during* that year, and therefore the assessment was absolutely void', and no jurisdiction existed to sell the property. We shall discuss these propositions seriatim.
Was the appellant correct in his first contention? The decree entered contains findings of fact made by the court below upon the trial of the ease. These findings disclose that on January 1, 1899, the agent for plaintiff presented to the county treas*-urer’s office a written request for a statement of taxes due on the premises; that the deputy county treasurer after a, time wrote on the back of the written request that taxes were due upon the premises for 189G, 1891 and 1S98, giving the amounts. Nothing was said of the taxes of 1895. The court also found that the agent of plaintiff, when he made the above request/ did not say anything with reference to redeeming the projierty from any sale, and that such agent did not tender the county treasurer any money for paying the particular tax involved in the case, before the- property had been sold at tax sale.
Counsel for plaintiff, as to the first proposition, cites Black on Tax Titles, Sec. 862, where we find the law upon this subject laid down in the following language: “But when a party, in redeeming from a tax sale, claims to have- paid all charges* demanded by the officer, it must appear, in order that he may be relieved as to any not demanded, that the fault was with the treasurer exclusively. The party must have demanded a search for all sales, and not allowed the treasurer to believe that. a. particular sale only was inquired for. Indeed, we may lay it down as a general rule that the whole responsibility must be cast upon the officer, and the redemq¡tioner must. show his own hands to be entirely clear of any share in the misunderstanding’. * * lienee, if the officer exactly carries out the instructions of tlio owner, the latter has no ground for relief, although, through his own inadvertence, the result is entirely different from that which lie supposed he was about to accomplish.”
Counsel also cites Corning Town Co. v. Davis, 44 Iowa, 622. An examination of that case discloses the following state of facts: After a, tax sale the plaintiffs applied1 to the treasurer of the county in which the land was situated “to pay all taxes due or delinquent upon the property of plaintiffs there assessed, and to redeem! from, all tax sales that might have been made of such lands.” A long list of property ivas given the officers, for the purpose of allowing them to make a careful examination of the hooks of the county and ascertain delinquent taxes and tax sales. A sum of money deemed sufficient, was paid to the officers for the purpose of paying the taxes and redeeming from sales. An examination was made, certain taxes! were paid., and a sunn of money returned to plaintiffs with the report that no further amount was. due for taxes, or required to redeem the land. The treasurer and cleric assured the plaintiffs that all taxes were paid, and all lands redeemed from tax sales. Tha officers did not discover the sale under which defendant’s deed was made until the time for redemption had expired, and prior thereto made no. report to plaintiffs that such sale had been made. -The amount, of money they received from plaintiffs and repaid to them was sufficient to redeem' from the tax sale under which defendant claimed title. The Supreme Court of Iowa correctly decided the point in the following language: “The other point, that, as it was the duty of the treasurer and clerk to- impart correct information to the agent of plaintiffs, applying to them to redeem the lands from tax sales and to pay all delinquent, taxes thereon, he was justified in relying upon their representations, and their mistake, error or neg’ligence is sufficient ground to support the right of redemption after th© tax deed waa executed.” It is very apparent that the above authority is not in point in this case. Plaintiff’s! agent only asked the county treasurer for a “statement of taxes due” upon the property in question, andl made no inquiry as to whether the land had been sold for taxes previous to that time, and made no; attempt to redeem from any sales.
Counsel also cites in support of this proposition the case of Could v. Sullivan, 84 Wis. 659, 54 N. W. 1013, 36 Am. St. Rep. 955, 20 L. R. A. 487. An examination of that case disr closes that plaintiff gave the taxing officer a list of land upon which he desired to pay taxes for 1884. The officer received payment, and delivered a receipt for all lands in the list, except one description, and indorsed on the .receipt, as to that descripu tion, “Not on the roll.” The plaintiff paid all the taxes levied and assessed upon the other lands according to' the tax receipt. It afterwards turned out that the land, the description of which the county treasurer had informed plaintiff was not on the roll, had been assessed and eventually sold for taxes, and a deed therefor given. The court properly held that the plaintiff offered to pay all taxes assessed against him, and relied upon the information of the treasurer that no taxes were assessed against this particular parcel of land, and was therefore in the same position as though he had paid all the taxes, and might contest the deed. ' It is equally apparent that this authority is not in point in this case.
The correct doctrine, in 'our judgment, is. announced by the Supreme Court of Iowa in the case of Moore v. Hamlin, 38 Iowa, 482, citing Bolinger v. Henderson, 23 Iowa, 165, and Noble v. Bullis, 23 Iowa, 559, 92 Am. Dec. 442. The plaintiff testified: “Soon after I had bought the lot I.ascertained that Mr. Iiockwood had a tax title; on it. I went there to ascertain how the matter stood. After doing this I was told perhaps there might be some back taxes on it, on which I went toi the treasurer, Mr. Cobb, and asked him.' if there were any hack taxes upon the lot in question, He took down his book and looked through several years, and told' me there was no- back taxes on the lot; and, thinking I was getting* a warranty deed from this party, I thought from this time forward the land would be clear.” The land had been sold for taxes befóte plaintiff applied to the treasurer. The court say: “It does not appear that he made the slightest effort, before his purchase, to ascertain the condition of the title. When he applied to the treasurer he inquired after back taxes, and not after tax sales. Nor aught that appears', the statements made by the treasurer were in every respect true, for* the taxes of 1868 had been satisfied by sale^ and it does not appear that the taxes of any other year were unpaid. Nor does it appear that Morris went to the treasurer prepared to pay the taxes or redeem from tax sales, or with the purpose of doing so.” ■
The case of Lamb v. Irwin, 69 Pa. 436, is also. in point against the contention of plaintiff. The court usesi the following language: “Undoubtedly the failure to find the sale which was, overlooked must have been the fault of the treasurer exclusively, and therefore the party must have distinctly and clearly called his attention to the demand for a search for all sales. He must- not permit him to rest under the supposition that a particular sale only is. asked for in order to redeem.”.
Judge Cooley, in his work on Taxation (3d Ed., page 1049), says: “If by the mutual mistake of the officer and of the party the redemipjtion has failed, or if it is left in doubt whether the officer was. in fault at all, the case presents, no. other ground of equity than would exist in any case where, through inadvertence or misapprehension, the party has failed to. assert his right in due season; and he will be left by the law where his own negligence or inattention hasi placed him.”
We think these authorities conclusively settle the first proposition against plaintiff’s contention.
As to the designation of the newspaper in which the notice of sale was to be published, and the sufficiency of the time of publication: Section 38Y5 of the Political Code requires that tbe publication of the delinquent tax list “must be made once a week for three successive weeks in such newspaper published in the county as the board of county commissioners directs.” Although the statute requires the treasurer to: publish the delinquent tax list notice (Section 3874, Political Code), it. must be published in such newspaper as the board of county commissioners directs. This is a part- of the county printing, which, must be arranged for by the board. The findings disclose that at the time the notice in question was published there' was in existence a contract between the paper in which the notice was published and the county, made pursuant to the statutes of this state. This: contract being in existence- and binding upon the county commissioners, its execution may be treated as an absolute direction to the treasurer to publish the notice in that paper. The statute does not require the commissioners to designate a paper for publication, but to direct the publication to be made in a certain paper.
Plaintiff further insists that’ the ¡publication was not for a sufficient time. Section 387.7 of the Political Code provides: “The time of sale must not be less than than twenty-one nor more than twenty-eight days from the first publication, and the place must- be in front, of the county treasurer’s office.” The findings of the court are as follows.: “That notice was duly published under dates of December 30, 1895, January 6, 1896, and January 13, 1896, and that the sale took place January 27, 1896.” It thus appears that the publication was for three successive weeks, and that the time of sale was not less than twenty-one nor more than twenty-eight days from the first publication,' so that the plaintiff’s contention must be decided adversely to him.
Did the failure of the county clerk to prepare a duplicate assessment book for the year 1895 affect the validity of the tax in question ? Elven though the duplicate assessment roll should have been made and filed, the omission to do so- does not aid plaintiff’s contention in the least. The making and filing of the duplicate assessment roll have nothing whatever to do with the validity of taxes assessed. It is simply a copy of tbe original assessment roll as finally completed, made by tbe clerk for tbe (purpose of allowing binr to keep on file in bis office, for reference, tbe original assessment roll. Its omission was a mere irregularity. Besides, plaintiff: does not contest tbe validity of tbe tax by tbe allegations, of bis complaint, but pleads a tender of tbe amount paid by defendant for bis tax deed. We therefore do not consider or decide whether tbe provisions of the law of 1891 or tbe Political Code apply to this question.
Wo find no merit in appellant’s contentions, and. advise that tbe judgment, appealed from be affirmed.
Pee CueiaM.
For tbe reasons stated in the foregoing opinion, tbe judgment appealed from is affirmed.
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] |
MR. JUSTICE HOULOWAY
delivered tbe opinion of tbe -court.'
Tbe defendant, Robert Stickney, was convicted of the crime -of kidnapping, and sentenced to- imprisonment in tbe state prison for tbe term of seven years. From tbe judgment he •appeals.
Bound together as tbe record, and filed in this court, are a -copy of tbe original information, tbe demurrer filed thereto, tbe order of tbe district court sustaining tbe demurrer, tbe first amended information, tbe demurrer thereto, tbe order of tbe •district court sustaining it, tbe second amended information— being the one upon which the defendant was tried — a motion by defendant to dismiss tbe prosecution against him, tbe order ■of tbe district court overruling tbe motion, tbe defendant’s pleas, tbe minute entries of tbe trial, including a copy of tbe verdict, tbe instructions given to tbe jury, tbe judgment, a bill of exceptions embodying tbe testimony given at tbe trial, a stipulation, tbe notice of appeal, and tbe certificate of tbe clerk. Counsel for tbe state has moved this court to strike out all that portion, except tbe information upon which tbe defendant was tried, the record of his pleas, the minute entries of the trial, the instructions given, the judgment rendered, the notice of’ appeal, and the clerk’s certificate. The motion'to strike the-original and first amended informations, together with the demurrers thereto, and the orders of the court with reference to the same, together with the motion to dismiss the prosecution, and the order of the court overruling the same, and the stipulation of the attorneys respecting the time for the presentation of the bill of exceptions for settlement, is made upon the ground' that the several papers just enumerated are not a part of any bill of exceptions, and therefore not properly a part-of the record in this case.
Section 2229 of the Penal Code designates the papers which shall constitute the judgment roll or record of the action in a criminal case, where a conviction has been had. Subdivision 1 is, “The indictment or information, and a copy of the minutes-of the plea or demurrer.” It is contended by appellant that the motion to dismiss the prosecution was in effect a demurrer, and' properly a part of the judgment roll. However, Session Laws 1903, page 47, Chapter 34, has amended Subdivision 1 of Section 2229, above, by providing that motions to- set aside indictments or informations, or demurrers to indictments or infor-mations, shall be embodied in a bill of exceptions, and further-provides that they cannot be reviewed in any other manner. The information which is made a part of the judgment roll has. reference only to- the information upon which the defendant was tried. If he was tried on an amended information, that amended information succeeds all prior informations filed, and' they cease to have any effect whatever as pleadings. It is apparent that the defendant recognized this rule, for he sought to have the original and first amended informations introduced in evidence as exhibits, but upon objection they were excluded,, and are not copied in the bill of exceptions.
It appears, then, that the judgment roll or record of the action in this case is composed of copies of the following papers, only: (1) The information, and defendant’s pleas thereto;-. (2) tbe minutes of the trial; (3) the instructions given; and (4) the judgment. Section 2 of Chapter '34, Act of 1903, above, among other things, provides: “The only method of preserving for review by the supreme court on appeal, any proceeding, evidence or matter not designated by the Penal Code as part of the record on appeal without bill of exceptions, shall be by bill of exceptions prepared and settled under either Section 2171 of the Penal Code or this Act, as the one or the other may: be appropriate.” It is apparent, then, that with reference. to the original information, the demurrer thereto, the order of the court sustaining it, the first amended information, the demurrer thereto, and the order of the court sustaining it, the defendant’s motion to dismiss the prosecution, and the order of the court overruling’ the same, and the stipulation of the attorneys, none of which are embraced in the bill of exceptions, nor are a, part of the judgment roll, are not part of the record before this court for any purpose whatever, and must therefore be stricken out.
It is contended by the attorney general that the bill of exceptions should be stricken from the record, for the reason that it does not appear affirmatively from it that the same was presented to the judge for settlement on two days’ notice to the •county attorney.
Section 2171 of the Penal Code provides: “When a party desires to have the exceptions taken at the trial settled in a bill ■of exceptions the draft of a bill must be prepared by him and presented, upon notice of at least two days to the county attorney, to the judge for settlement within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the supreme court, or within that period the draft must be delivered to the clerk of the court for the judge. * * *” In State v. Gawith, 19 Mont. 48, 47 Pac. 207, this same question was before the court; and it was there held that the provisions of Section 2171, quoted above, are mandatory, and, where the record on appeal does not show ■affirmatively that such notice was given, the bill of exceptions will not be considered. In State v. Moffatt, 20 Mont. 371, 51 Pac. 823, tbe same question was presented, and the doctrine announced in State v. Gawith reaffirmed, so> that it may be said to have become a settled rule of practice in this state. Eliminating therefore from the record the bill of exceptions and those papers which are not properly a part of the judgment roll, and there remains for consideration only the judgment roll as provided for in Section 2229 as amended by the Act of 1903.
The only question presented for determination is, does, the information state a public offense?
The information is drawn and the prosecution had under the provisions of Subdivision 3 of Section 380 of the Penal Code, as amended by the Seventh legislative assembly (Session Laws 1901, p. 169). So much of that section as is. applicable to this case reads as follows: “Every person who willfully * * * (3) abducts, entices or by force or fraud unlawfully takes or carries away another, at or from a place without the state * * * and afterwards sends, brings, has or keeps such person, or causes him to- be kept or secreted within this state, is guilty of kidnapping and is punishable by imprisonment in the state prison for not less than one year.”
The information is in three counts, but upon the trial the first count was abandoned by the prosecution, and consideration of it withdrawn from the jury by an appropriate instruction. The second count charges that the defendant on Dteeember 11, 1902, by means of false and fraudulent representations, which are detailed at length, did unlawfully, willfully and feloniously entice one Hallie Wolcott from Denver, Colorado, and after-wards, on December 18, 1902, did, by means of such false and fraudulent representations, willfully, unlawfully and feloni-ously bring the said Hallie Wolcott into this state, and into a certain place in the city of Great Palls. • The third count charges the defendant with willfully and feloniously taking the said Hallie Wolcott from Denver, Colorado, and afterwards unlawfully and feloniously bringing her into Montana.
The various terms employed in the first part of Subdivision 3, above, merely designate the means by any one of which the crime may be initiated; and if the defendant willfully and feloniously enticed the prosecuting witness from Colorado, and afterwards unlawfully and feloniously brought her into this state, the crime would be complete, as charged in the second count. Or, if he willfully and feloniously took her from Colorado, and afterwards unlawfully and feloniously brought her into this state, the crime would be complete, as charged in the third count.
The contention of the appellant that the information must allege that the defendant brought her into this state “with intent to cause her, without authority of law, to be secretly confined and imprisoned within this state,” etc., is untenable. If the prosecution was had under Subdivision 1 of Section 380, above, then the objection made by the appellant would be applicable. But under Subdivision 3, above, if the defendant willfully and feloniously enticed or took the prosecuting witness from Colorado, he could then have completed the crime of kidnapping, as defined in that section, by any one of the following means, viz.: by sending her, by bringing her, by having her, by keeping her, or by causing her to be kept or secreted in this state.
Finally it is contended that the concluding phrase of each count, “against the peace and dignity of the state of Montana,” etc., only modifies or characterizes the last sentence of each count preceding such concluding words. But with equal propriety could that argument be made against the allegations of almost every information. In People v. Biggins, 65 Cal. 564, 4 Pac. 570, such contention is characterized as hypercritical. We are of the opinion that there is no merit in it.
The sufficiency of every information is to be tested by the rules prescribed by the Penal Code. Section 1830'reads as follows: “All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.” Section 1833 provides a form, for informations and indictments, and it is sufficient to sa.y that the information in this case conforms h> that model in all substantial particulars. Sections 1841 and 1842 provide tibe rules for the interpretation and construction of in-formations and indictments as follows:
“Sec. 1841. Tlie indictment or information is sufficient, if it can be understood therefrom: (1) That it is entitled in a court having authority to receive it, though the name of the court be not stated. (2) If an indictment, that it was found by a grand jury of the county in which the court was held; or if an information, that it was subscribed and presented to the court by the county attorney of the county in which the court was held. (3) That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury or county attorney, as the case may be, unknown. (4) That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein. (5) That the offense was committed at some time prior to the time of finding the indictment or filing of the information. (6) That the act or omission charged as the offense, is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what, is intended, (77) That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to1 pronounce judgment upon a conviction, according to the right of the case.
“Sec. 1842. No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”
Tested by the foregoing rules, we are of the opinion that the information states a public offense.
The judgment is affirmed.
Affirmed.
|
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] |
Per Curiam.
The motion to dismiss the appeal herein is hereby sustained, and the appeal is accordingly dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In April, 1900; Thomas Ford died, leaving a will by the teisms of which the appellant, Con. Hayes, was nominated executor. The appellant presented to the district court a petition for the probate of the will and for his appointment as executor, to which petition objections were filed; and it appearing to the district court that delay would ensue in granting letters testamentary or of administration, and that it was necessary that some one be authorized to collect and take charge of the estate of decedent, the court, on May 30, 1900, appointed the respondent, B. De B. Smith, special administrator, who immediately qualified and entered upon the discharge of his duties. Thereafter, on April 23, 1901, the will of the deceased was admitted to probate, and letters testamentary were issued to the appellant, Hayes. Thereupon the court directed the special administrator to file his final account, which was done on May 2, 1901. To this account the executor/filed written objections. A hearing was had, the objections overruled, and the account allowed. From the order .'allowing the account the executor appealed.
The record shows that the special administrator sold certain personal property, consisting -of range horses and hay, to the amount of $571.90, and collected other sums of money belonging to the estate, making his total receipts $807.74; that he-paid ■out for various items of expense $806.10. . These items of expense are for attorney’s fees, clerk’s fees, compensation to special administrator, expense of caring for the property, and taxes; also 50 cents for internal revenue stamps on bond, $6 paid for publishing .'notice to creditors, $15 paid to appraisers, $5 paid for carriage for the use of the appraisers, $6 for one day’s work of the special administrator in having the appraisers appointed, and $6 for one day’s service of the special administrator in meeting with the appraisers. Exception is taken to all of the items of expense, except the attorney’s fees, taxes, and commission allowed the special administrator.
Most of the items of expense are for disbursements made by the special administrator in collecting, taking charge of, and caring for the property of the estate, and, as it was situated in five different counties, we cannot say that the expenses incurred were unreasonable, or that the district court abused its discretion in allowing them.
Objection is made to the amount allowed the special administrator as • compensation for his services. The Code of Civil Procedure makes no provision for the compensation of a special ■ administrator, but it cannot be presumed that the law contem plates that such services shall be rendered gratuitously. We prefer to adopt the views of the Supreme Court of California on this subject, as disclosed in In re Moore’s Estate, 88 Cal. 1, 25 Pac. 915. It is there said: “The Code of Civil Procedure does not malee any special provision for the compensation of a special administrator, but leaves it to the discretion of the court in the settlement of his account.” Considering the fact that’the special administrator was in charge of this property for a year, we cannot say that the allowance made to him was excessive.
With reference to the receipts, the record fails to disclose whether such sales of personal property were made pursuant to the order of the district court. The transcript does not purport to contain copies of all the papers in the case, and, in. the absence of a showing to the contrary, we must presume that such sales were made according to law, and that they were properly approved by the district court.
No contention is made by the appellant of the lack or insufficiency: of evidence to justify the order of the court in approving this account. The record does show that the various items of expense were incurred on behalf of the estate, and that the special administrator had vouchers for the same. We are therefore precluded from considering any of these items, unless upon the face of the account they appear to be such as should not have been allowed at all. The powers, duties and liabilities of a special administrator are specifically provided for in Sections 2500 to 2506 of the Code of Civil Procedure. With reference to these powers this court has said: “It has been established by the decisions of this court that the jurisdiction of the 'district court sitting in probate matters is limited to the powers conferred upon it by statute, that is, to the control of the ‘adininis-tration of decedents’ estates, the supervision, of the guardianship of the infant's, the control of their property, the allotment 'of dower and other powers pertaining to the same subject.’ In re Higgins’ Estate, 15 Mont. 474, 39 Pac. 506, 28 L. R. A. 116. * .* * The powers of a. special .administrator áre limited. He is ‘to collect and take charge of the estate of the decedent * * * and to exercise such other powers as may be necessary for the preservation of the estate.’ Section 2500, Code of Civil Procedure. Again, the statute authorizes him to collect and preserve for the executor or administrator all incomes, rents, issues and' profits, claims and demands, of the estate; he must take charge and management of, enter upon, and preserve from damage, waste and injury, the real estate, and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as an administrator. He may sell perishable property in certain instances, and ‘exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to an action by any creditor.’ Section 2504, Code of Civil Procedure. These statutes limit the functions of a special administrator to the exercise of powers necessary to collect and preserve the estate for the executor or administrator to be regularly appointed. The enumeration of particular powers, such as to sell such perishable property as may be ordered sold, and to collect rents, etc., is but to enable a special administrator to collect and preserve what otherwise might not be collected and preserved for the estate by any one in authority. The authority ‘to exercise such other powers as are conferred upomhim by his appointment’ is but a further power to do¡ what may be necessary to collect and preserve; it is not a power to exercise the powers and duties conferred upon a regular executor or administrator, such as the allowance or payment of claims.” (State ex rel. Bartlett v. Dist. Court, 18 Mont. 481, 46 Pac. 259; In re Moore’s Estate, supra.)
In the absence of any statute requiring the special administrator to have appraisers appointed, all expenses incurred by him, or allowances made to himi on account of such appraisers, were not justified, and should not have been allowed. Neither should the special, administrator receive credit for the expense incurred by him in publishing notice to creditors. He could 'not pay the debts of the. estate; therefore he could not limit the time for the presentation of claims against the estate by any notice wbicb be might have given. The provisions of the Code requiring appraisers to be appointed, and notice to creditors to be given apply to- administrators and executors regularly appointed as such, and are not applicable to special administrators. ’ Neither was the court justified in allowing him the expense of procuring a -revenue stamp' for his bond.
The cause is remanded to the district court, with directions to modify the order by disallowing the items heretofore referred to, aggregating $38.50, and, when so modified, that it be affirmed.
Modified and affirmed.
|
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Per CuRIAm.
The motion h> dismiss this appeal is hereby sustained, and the appeal is accordingly dismissed.
|
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ME. CHIEF JUSTICE! BEANTLY,
after stating the case, delivered the opinion of the court.
Suggestion was made at the hearing that this court has no jurisdiction of this appeal, because it does not appear from the certificate of the clerk attached to the- transcript that the undertaking on appeal has been “properly” filed as required by Section 1739 of the Code of Civil Procedure, and a motion was made to dismiss the appeal on that ground. The word “properly” is omitted from the certificate, and in lieu thereof is inserted the date of the filing of the undertaking. The term, as used in the statute, has reference to the time of the filing of the undertaking; and if it appears by fair1 intendment from the wording of the certificate, or by a comparison of the date of its filing with that of the filing of the notice of appeal, that the undertaking has. been filed in time, this is sufficient. In this case the notice was served and filed on April 12, 1901. The certificate states that the notice was filed on the same day. In other respects the certificate conforms to the requirements of the statute. The motion to dismiss must, therefore,.be overruled.
Many questions are raised and discussed in the briefs of counsel up,on the merits of this appeal. We shall notice but one of tliem, as we deem it the fundamental question involved, and a correct solution of it conclusive against tlie decree of the district court.
Counsel for1 defendant challenge tlie validity of the: note and mortgage on tlie ground that a probate court had no power to authorize the guardian to incumber the estate at all; hence, the note and mortgage executed under authority granted by the order are void, and furnish no foundation for thei decree. At the time the order was made and the note and mortgage were executed, jurisdiction of all matters of probate and. of the administration and control of estates of minors, was vested in the district courts of the respective counties of the state, such jurisdiction having been transferred, under the Constitution, to these courts from the probate courts1 established under the Acts of Congress creating the territory. (U. S. Stat. Vol. 13, page 85; Id. Vol. 14, page 426; Constitution, Art. VIII, Sec. 11, and Schedule, Sec. 4.) It was provided in the former of these Acts 'that the powers of the probate courts should be limited by law. Under this charter, commonly known as the “Organic Act,” the legislature of the territory was authorized to enact laws defining and limiting the powers of these courts, or granting them additional powers, so long as these laws did not conflict with the express provisions of the Organic! Act itself and the Constitution and General Laws of the United States. (Ferris v. Higley, 87 U. S. 375 (20 Wall.), 22 L. Ed. 383.) In pursuance of the authority so conferred, the legislature of the territory enacted the Probate Practice Act, which was. in force at the time the order in question was made. (Comp. St. 1887, Second Division.) These provisions of lawi were regarded by the supreme court of the territory as limitations1 upon the powers of probate courts, and that court declared the rule to be that probate courts were courts of special and limited jurisdiction, possessing no powers other than those expressly conferred by statute. In other words, the Acts of Congress and the Legislature in pursuance thereof were the only authority under which those courts could proceed, and, if the particular power sought to be invoiced was not therein granted, tlie court could not proceed. This is the effect of the decision in Chadwick v. Chadwick, 6 Mont. 566, 13 Pac. 385, and the rule thus established is recognized distinctly in the subsequent cases of In re Higgins' Estate, 15 Mont. 502, 39 Pac. 506, 28 L. R. A. 116, State ex rel. Bartlett v. District Court, 18 Mont. 481, 46 Pac. 259, and State ex rel. Shields v. District Court, 24 Mont. 1, 60 Pac. 489. These latter cases also recognize the rule that when, under the Constitution, the jurisdiction of these courts was transferred to the district courts, it was not enlarged, but it was the same as theretofore, though exercised by courts of general jurisdiction. If, therefore, there Avas no* authority conferred by the statute to grant the order under whioh the note and mortgage were executed, they are rnid, and the decree cannot stand; for, independently of authority granted by a court of competent jurisdiction, a guardian has no porver to incumber the estate of his AA-ard, or to bind the ward personally upon any undertaking entered into in the Avard’s behalf. (Wood v. Truax, 39 Mich. 629; Trutch v. Bunnell, 11 Ore. 58, 4 Pac. 588, 50 Am. Rep. 456 ; Hunt x. Maldonado, 89 Cal. 636, 27 Pac. 56; Fish v. McCarthy, 96 Cal. 484, 31 Pac. 529, 31 Am. St. Rep. 237; 15 Am. & Eng. Ency. Law, 2d Ed. 70.)
We must, therefore, look to the Probate Practice Act in force at the date, of the order to determine what power the court had in the premises. Under this Act the court hadi ample p|OAArer to order a sale of the Avard’s estate upon application of the guardian, when the necessary jurisdictional facts were made to appear, for the purpose of raising funds to pay debts or to support and educate the Avard. (Comp. St. 1887, Second Division, Secs. 367, 369, 370, 376, el seq.) But nowhere do we find any provision granting the power, either in terms -or by implication, authorizing the incumbrance of the property or the incurring of debts for the benefit of the Avard for any pur!plose.' It must fol-1oa\t, therefore, that the decree of the district court was. AAdiolly unauthorized. •
But counsel for respondent say that the statute conferred upon tbe court power to authorize a sale; that a mortgage is only a conditional sale; and that, it appearing that the proceedings were regular, and ‘manifestly to' the benefit of the estate, of the wards, it should be sustained. Counsel overlook the wide distinction which exists under our system between a sale and a mortgage. Under the statutes of the territory and of the state, a mortgage has never possessed any of the characteristics of a sale. It has always been considered a mere lien,’ fixed upon property by contract of the parties', to secure the payment of a particular obligation ox the performance of a particular act. (Comp: St. 1887, First Division, Sec. 371; Gallatin County v. Beattie, 3 Mont. 173; Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; First Nat’l Bank v. Bell S. & C. Mining Co., 8 Mont. 32, 19 Pac. 403; State ex rel. T. C. Savings Bank v. Gilliam, 18 Mont. 94, 44 Pac. 394, 45 Pac. 661, 33 L. R. A. 556; Bennett Brothers Co. v. Tam, 24 Mont. 457, 62 Pac: 780; Holland v. Board of Commissioners of Silver Bow County, 15 Mont. 460, 39 Pac. 575, 27 L. R. A. 797; Civil Code, Sec. 3810.) Title does not pass under it. A sale passes title to the property. The power of the probate court to authorize the guardian to sell the property of his ward, is1 virtually a power in the court to sell and pass title, while the power to fix a lien upon the property and authorize a sale of it by the sheriff through foreclosure proceedings in the district court would' be a wholly different power. Furthermore, the latter power would also* imply power to authorize the guardian to enter into' contracts binding the ward personally, for a mortgage to secure a debt presupposes the existence of a debt. The guardian may not contract debts for his ward. Debts contracted by him in the course of his administration are binding upon him personally, and the only method by which he may be reimbursed is upon a proper showing to the court to be allowed credit for them in his accounts, to be paid as other debts due from the trust estate, by payment out of the fund© of the estate in the hands of the guardian or by a sale of the property. (Comp. St. 1887, Second Division, Sec. 367.)
Counsel also, cite the case of Northwestern Guaranty Loan Co. v. Smith, 15 Mont. 101, 38 Pac. 224, 48 Am. St. Rep. 662, in support of tbe decree, and contend' that this court has declared the mortgaging of a. property by a guardian as equivalent to a sale, and that the power of the court to authorize the one, in the light of other provisions: (Section 422) requiring the guardian to safely keep| the property and deliver it to the ward upon the expiration of the trust, implies the power to authorize an incumbrance of it for this purpose. The facts of that case were peculiar. There the property was deeded to the ward after it had been incumbered. The mortgage was over due, and was about to be foreclosed. The probate court granted an order authorizing the guardian to obtain a renewal of the debt for a term of three years at á lower rate of interest, and to secure it by a mortgage. By this transaction no> new debt or encumbrance was created. It was the exchanging of one creditor for another' in an effort to preserve the estate. Under these circumstances this court was of the opinion that the general rule against the mortgaging of the ward’s estate did not apply, and that the mortgage should be upheld. The decision is, no doubt, justified by the general principles of justice and equity under the circumstances of the case; but we do not think the principle underlying it should extend to' cases not substantially identical, especially since the manifest policy of the statute is that> if there are debts properly chargeable against the estate, a portion of the property should be sold in order to raise funds to pay them, and not that the whole of it should be hypothecated, and thus put in peril of loss by foreclosure proceedings.
Counsel cite the Act of the legislative assembly of 1899 (Sess. Laws 1899, p. 145), and contend that, though the order of the district court authorizing the action of the guardian was void, yet under this provision the proceeding wias cured, and that for this reason the decree should stand. The third section of this Act declares: “Sec. 3. All sales by executors and' administrators of their decedent’s real and personal property, and all sales by guardians of their wards’ real and personal property in this state to purchasers for a valuable consideration, which has been paid by such purchasers to such executors or administrators or guardians of [or] their successors in good faith, and such sales shall not have been set aside by the district or probate court, shall be sufficient to sustain an executor’s or administrator’s or guardian’s deed or conveyance to such purchaser for such real or personal property; and in case such deed or conveyance shall not have been given shall entitle such purchaser to such deed or conveyance and the same shall be sufficient to convey to such purchaser all the title that such decedent or ward had in said real or personal property; and all irregularities in obtaining the order of the court-for such sale, and all irregularities in making or conducting the same by such executor, administrator or guardian, shall be disregarded.”
It is manifest that the contention of counsel has no merit for two- reasons: The Act does not in terms cover such a transaction as the one under consideration. It refers to sales by guardians, and not to mortgages, nor sales effected through foreclosure proceedings. As we have already seen, the power to sell does not include the power to mortgage. Furthermore, these curative Acts cannot be held to ap.ply to- proceedings which were, under' the law at the time at which they took place, wholly void. A judgment or decree which is void for want of jurisdiction at the time of its rendition is void for all time, and no Act of the legislature can give it life or force. It is-, in effect, no judgment. No> rights can be acquired under it. All acts performed under its authority and all claims founded upon it are void. A purchaser under it obtains no title, and in attempting to- assert a-claim under it findis himself without redress. (1 Freeman on Judgments, Secs. 117, 120; In the Matter of Christiansen, 17 Utah, 4l2, 53 Pac. 1003, 41 L. R. A. 504, 70 Am. St. Rep. 794; Freeman on Void Judicial Sales, Sec. 58.)
If the Act is to- be construed as applicable to the order of the court in question, then it must be regarded as an attempt on the part of the legislature to- give life to that which had no life; and by the exercise of judicial power to render a decree the effect of which would be to-take the property of the minors and subject it to the claims of another without due process of law.
The motion to dismiss the appeal is denied'. The decree is reversed and the cause is remanded to thei district court, with directions to dismiss the action and enter judgment for the defendants for their costs.
Reversed and remanded.
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] |
MR. COMMISSIONER OLAYBERG
prepared the opinion for the court.
There bare been two trials of tliis case in the1 court below. The first- resulted in a judgment and verdict for defendant, which was reversed by this court, and a new trial ordered. (Yank v. Bordeaux, 23 Mont. 207, 58 Pac. 42, 75 Am. St. Rep. 522.) The second trial resulted in a judgment- and verdict for plaintiff, from which, and from an order overruling' a motion for a new trial, this appeal is prosecuted.
The facts upon which this action is based are about as follows, viz.: Some ten men entered into a written contract under date of March 11, 1896, to. work the West Elba mine under lease. Seven of the men were parties of the first part under this contract, and agreed to perform, all labor necessarily required in the working- of the mine. The other three, Pliondorf, Pearson and Thompson, were parties of the second part under this contract, and agreed to furnish all supplies necessarily required for such working. The net proceeds were to be divided between the parties of the first and second part equally, each to- receive one-half thereof. About the 29th day of April, 1896, the three parties of the second part transferred, by written bill of sale, their undivided one:half interest in and to about twenty tons of ore then in the orehouse and bins at the mine, or the proceeds thereof, if the ore should afterwards be shipped and treated. The ore Avas shipped to the Parrot Smelting Company, and treated by that company. The net proceeds, of the shipment amounted to $868.76, of which plaintiff claimed to. be the owner of one,-half, or $434.38. After the ore had been treated, the defendant, as constable, levied upon that part of the proceeds claimed by the plaintiff, under writs directed against plaintiff’s grantors, collected the money, and had the same in his possession Avlien this suit Avas brought, as admitted in defendant’s answer. The plaintiff then demanded of defendant the release of his portion of the proceeds of the ore from the levy, and the payment- to him of $434.38, AA'hich Avas refused, and .thereupon plaintiff instituted this suit. A complaint Avas filed containing allegations of which the following is' a brief summary, viz.: (1) That defendant was a duly elected and qualified constable in Silver Bow county. (2) That plaintiff was owner of one-half of the- net proceeds of a certain shipment of ore “worked” by the Parrot Smelting Company, amounting to the sum of $434.38. (3) That the defendant wrongfully levied upon such proceeds under a certain execution. (4) That plaintiff made the demand upon defendant as above stated!, which was refused by defendant, and that defendant “wrongfully retains and still holds possession of the said sum, to plaintiff’s damage in the sum of $434.38.” Then follows the prayer, in the following language: “Wherefore plaintiff demands judgment against the defendant in the sum of $434.38, and costs of this action.” To this complaint the defendant filed an answer, which is briefly as follows: (1) Admits that he is constable. (2) Denies the allegations of ownership. (3) Denies that he wrongfully levied upon plaintiff’s interest. (4) Admits the demand and refusal alleged. .(5) Denies that he “wrongfully retains or holds possession of said sum, or any part thereof, to plaintiff’s damage.”
No question concerning the sufficiency of these pleadings seems to have been raised by either party upon either trial or appeal, but both parties have always treated them as sufficient to raise all the issues in the case. Some very interesting and troublesome questions suggest themselves to usi, as to the character and sufficiency of the complaint, viz.: (1) What is the character of this action — conversion, trespass, or assumpsit? (2) Are the allegations sufficient to maintain either action ? (3) If in assumpsit, could'a recovery be had in such action under the decision of this court in Merchants’ & Miners’ Nat’l Bank v. Barnes, 18 Mont. 335, 45 Pac. 218, 47 L. R. A. 737, 56 Am. St. Rep. 586 ? None of these questions seem ever to have been raised, or even suggested, and wie will therefore not consider or decide any of them; but, inasmuch as'the case must be reversed, we have thought proper to suggest them for the consideration of the respective attorneys. We also suggest the question as to whether the denials in the answer are sufficient to raise any issue save that of plaintiff’s ownership.
We shall only consider two of the numerous errors assigned, as all O'tbei* errors argued were, if errors at all, without prejudice to the defendant.
Defendant offered testimony for the purpose of showing that, at the time plaintiff made demand on him. for the funds in controversy, he no longer had possession of the same, but had paid the amount upon the execution in his hands, above referred to. This the court refused to allow, and defendant assigns such ruling as error. This ruling is correct. It will be noticed that the allegation of the complaint is that the defendant refused to pay plaintiff the money, “and wrongfully retains and still holds possession of said sum/’ and that the denial in the answer is as follows: “Denies, upon his information and belief, that the defendant wrongfully retains or holds possession of said sum, or any part thereof.” This denial is only as to the wrongful possession, and is no> denial of actual possession. (McCauley v. Gilmer, 2 Mont. 202; Harris v. Shontz, 1 Mont. 212; Toombs v. Hornbuckle, 1 Mont. 286; Proctor v. Irvin, 22 Mont. 547, 57 Pac. 183.) It thus appears that by the answer of de fendant he admitted that he was in possession of the money in question at the time the demand was made upon him. He cannot be allowed to introduce proof in contradiction of this admission in his answer. True, this court, on the former hearing of the case, used the following language, which is relied upon by the defendant: “Had the defendant prior to notice of plaintiff’s claim paid over the money collected under the levy the plaintiff would doubtless be without remedy against him.” This language of the supreme court was not necessary to the decision of the former appeal, is therefore mere dictum, and is not the law of the case. No doubt, had: the attention of the court been called to the fact that defendant had admitted' in his answer that he was in possession of the money when demand was made, the court would not have used such language. Therefore we conclude there was no error in refusing to allow the defendant to show that he had paid the money over on the executions at the time the demand was made by plaintiff.
Appellant complains that the court refused to permit him to prove that, subsequent to the execution and delivery of the bill of sale, about four tons of ore, “of equal or greater value” than that theretofore hoisted, had been hoisted from the mine, mixed with the ores in the orehouse (which plaintiff had bought), and1 shipped to the smelter, and were a part of the ores smelted, the net proceeds of which were attached by the defendant and claimed by plaintiff.
The bill of salo under which plaintiff claims describes the property in the following language : “All of our right, title and interest in and to about twenty tons of silver and gold ore now contained in the orehouse and orebina of the1 West Elba mine, lot 243, T. 3, N. R. 7 W., Silver Bow county, Montana, the said ore having been extracted by the said parties and: others.”
The first witness for plaintiff testified: “When I received this bill of sale for Mr. Yank I went over to the mine with Mr. Phondorf and told Mr. Hughes, about it. Tie was in charge there at the time. I saw the shipment of ore. It was in the house there. Mr. Hughes showed it to me.”
A. P. Phondorf, a witness on behalf of plaintiff, also testified: “Mr. Yank was. not there, and I gave the bill of sale to Mr. Lingley, and we together went out to the mine, and Mr. Hughes, the engineer, who was on top', and Mr. Lingley, showed him the bill of sale; and Mr. Hughes showed Mr. Lingley where the ore was, of which the bill of sale was a transfer.” On cross-examination, Phondorf testified as follows: “As far as I remember, there was something like nineteen or twenty tons of ore in the bin when we made the sale. I know that because I remember something about the size of the pile. This is an estimate. I did not know the exact weight. * * * The ore we sold Mr. Yank at the time we gave this bill of sale was in the orehouse.”
It is clear from the foregoing testimony that the ore intended by Phondorf and Pearson and James to be transferred to plaintiff by the bill of sale was in the orehouse at the mine when, the bill of sale was made. On cross-examination of Phondorf, he .further testified as follows: “I did not know whether there was any more ore taken out of the mine, but the mine ran for a while, because we bad to take out the pumps. If you consider that, the mine ran for perhaps, four or five days after. The ore we sold Mr. Yank at the time we gave this, bill of sale was in the orehouse, and the other was ore hoisted out of the mine after that. I could not tell you how much. It may have been half a ton — something like that. It was not over a ton. Q. Did you not state on cross-examination that there was some ore hoisted out of the mine and put in these bins ? A. I thought there had been. I did not know there had been. I could not say there had not been.”
Counsel made the following offer of proof as to ores being-raised from the mine and placed in the orehouse with the ore in question: “We offer to prove- by this witness and the other witness, Mr. Oleson, that after the date of tire alleged bill of sale, and before they had any knowledge of it, or notice of its existence, they hoisted about four tons of ore of equal or greater value than the ore that had theretofore been placed in the bins, and placed it in the bins, at the West Elba mine, and that this ore was part of the shipment of April 30th, for which plaintiff received the proceeds, and for which this action was commenced.” The court excluded this offer, and the defendant alleges .error. There is no doubt but that defendant had a perfect right to show that ore had been hoisted and placed in the same bin with the ore in question, and shipped and reduced with the ore in question, after the bill of sale had been given. The bill of sale only purported to convey to plaintiff an undivided one-half of the ore in the orehouse at the date thereof. If more ore was. placed therein after that date, and shipped to the smelter, and treated at the smelter, plaintiff certainly could not, under his bill of sale, claim that he was- entitled to one-half of the net proceeds of such ore. lie did not buy it; it was not conveyed to him; he had no interest in it; yet he seeks in this action to obtain a judgment for an undivided one-half of the proceeds of all the ore shipped to the smelter and reduced at that time.
An examination of the record discloses the further fact that plaintiff called one E. N. Hughes as a witness, who gave testi mony on plaintiff’s examination tbat no ore was hoisted from tbe mine after tbe execution of tbe bill of sale; tbus demonstrating tbat plaintiff appreciated- tbe importance of tbe question, and deemed evidence necessary to be introduced on bis side of tbat issue. After having introduced evidence upon an issue without objection, be should not be allowed to object to the introduction of evidence by tbe defendant upon the same issue. The offered testimony was- very important upon tbe issue of plaintiff’s ownership-, which was properly raised by tbe pleadings, and its exclusion was error.
We advise tbat tbe judgment and order appealed from, be reversed, and a new trial granted.
Pee Oueiam.
Por tbe reasons, stated in the foregoing opinion, tbe judgment and order appealed from are reversed, and tbe cause remanded for a new trial.
|
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ME, OOMiMIS'SIO'NEB OLAYBEEG
prepared- tbe opinion for tbe court.
Tbis was an action brought by plaintiff to recover damages against defendant for a personal injury. Tbe defendant was tbe proprietor of a steam laundry, and- plaintiff was employed therein. Bier band was injured, by being caught between tbe rollers of a mangle or ironing machine used in tbe laundry, at which she was put to work by defendant’s foreman. Tbe negligence upon which tbe recovery is sought is a failure on tbe part of defendant to provide plaintiff with reasonably safe machinery to work upon and to- maintain it in a reasonably safe condition. In tbe answer defendant admits that plaintiff was in bis employ, and sustained injury to one of her bands by being caught in tbe mangle; then denies any negligence on tbe part of defendant as alleged, and alleges that tbe plaintiff was guilty of contributory negligence. Tbe replication denies all tbe new matter set forth in tbe answer.
Tbe case came on for bearing before tbe court and a jury, and tbe defendant immediately objected to1 tbe introduction of any evidence on tbe part of tbe plaintiff on tbe ground “that tbe complaint fails to state facts sufficient in law to entitle tbe plaintiff' to the relief sought, and does not state facts sufficient to constitute a cause of action.” Tbis objection was overruled, and tbe defendant reserved an exception. Immediately iajfter tbe close of plaintiff’s evidence counsel for defendant moved for a nonsuit, which was overruled, and to which defendant also saved exception. Defendant then, introduced bis proof, and at tbe close of all tbe testimony moved tbe court to direct tbe jury to return a verdict for defendant, which motion was. also overruled, and defendant excepted. Tbe case was given to tbe jury, which returned a general verdict in favor of plaintiff for tbe sum of $2,000. In addition to- tbe general verdict, there were ten special findings submitted to tbe jury by defendant, all of which were found in favor of plaintiff and against the defendant.'
The defendant gave notice of intention to move for a new trial, had a bill of exceptions settled, and on the 29th day of June, 1901, filed a stipulation signed by the attorneys for the respective parties, which was in the following language: “It is hereby stipulated and agreed by and between counsel in the above-entitled action as follows: (1) Immediately after the settlement by the court of the defendant’s bill of exceptions herein the defendant may present his motion for a new trial, and all notices preliminary to the presentation of such motion for new trial, together with the time of presenting the same, are deemed to be waived, except the notice hereinafter mentioned. (2) Said motion for new trial may. be niade and argued any time between August 25, 1901, and October 1, 1901, and may be brought on for hearing on five days’ notice.”
So far as disclosed by the record on this appeal, ho motion for a new trial was ever made, and the appeal before the court is from the judgment.
The question as to whether a bill of exceptions settled for use on the hearing of motion for a new trial can be considered by this court on an appeal from a judgment when no motion for a new trial has been made in the court below, and no decision thereon is appealed from, has not been presented in this appeal, and therefore it is not considered or decided.
This court is left somewhat in doubt as to the actual position of appellant’s counsel on the questions of assumed risk and contributory negligence of the plaintiff. In the brief filed counsel makes the assertion that the case is to be tested by the question as to whether or not plaintiff assumed the risks of the employment, and states that the question of contributory negligence is not in the 'case. Upon his oral argument to- the court he announced that the above statement contained in his brief was not correct, and that he did rely on the contributory negligence of the plaintiff, and the first point he argued to the court was that the complaint in the case did not state facts sufficient, to constitute a cause of action, because it contained no allegation negativing the existence of contributory negligence.
Tbe defenses of contributory negligence and assumption of risk are entirely inconsistent witb each other, and do not rest upon tbe same principles; and tbe existence of one necessarily excludes tbe existence of tbe other. (1 Bailey, M. & S. Sec. 938 et seq.; Miner v. Connecticut River R. R. Co., 153 Mass. 398-403, 26 N. E. 994; Texas P. Ry. v. Bryant, 8 Tex. Civ. App. 134, 27 S. W. 825; Mundle v. Manufacturing Co., 86 Me. 400, 30 Atl. 16.) If tbe defense of tbe assumption of risk is maintained, tbe question of the existence of contributory negligence does not arise, because, if plaintiff assumed tbe risks of tbe employment, be cannot recover, even if be exercised tbe highest degree of care.
We recognize tbe rule that'a defendant is entitled to' plead in tbe same answer as many defenses as be may wish to. present, even though they are inconsistent witb each other, and is entitled to present and rely upon any of such defenses upon tbe trial of tbe case; subject, however, to' instructions to tbe jury as to their proper effect in each case. We do not wish to be understood as deciding whether tbe defense of tbe assumption of risk must be pleaded specially, as such question is. not involved in this case; this defense being pleaded. These questions, however, are not material to this, case, as both tbe defenses of contributory negligence and assumption of risk were pleaded, presented to- tbe jury, and found against tbe appellant.
Tbe first question raised by tbe appellant is that tbe complaint does not state facts sufficient to> constitute a cause of action, in that it does not allege that the plaintiff acted witb due and ordinary care in tbe operation of tbe mangle by which she was injured; in other words, that tbe complaint does not negative tbe existence of contributory negligence. This question, we think, is answered by this court in tbe case of Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852. Mr. Justice Pigott, speaking for tbe court, said: “In actions for personal injuries tbe absence of contributory negligence is not required to be pleaded or proved by tbe plain tiff, but its presence is a matter of defense. Such is tbe law in Montana. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Pac. Mutual Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. 756. Tbe contrary rule was announced in Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, but bas been overturned by tbe eases cited and those referred to. by tbé opinions therein. If, however, tbe complaint shows tbe proximate (or a proximate) cause of the injury to have been tbe act of the plaintiff, tbe complaint must also state bis freedom from negligence in the doing of tbe act; otherwise tbe pleading is bad (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21) ; and so, if the evidence in behalf of tbe plaintiff shows tbe injury to have been directly caused (either in whole or in part) by bis act, tbe burden is immediately upon him to prove that be was exercising ordinary care at tbe time. Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905. Another rule, from which there seems, to be no dissent except in North Carolina (Bolden v. Railway Co., 123 N. C. 614, 31 S. E. 851; Cogdell v. Railroad Co., 124 N. C. 302, 32 S. E. 706; Powell v. Railway Co., 125 N. C. 370, 34 S. E. 530), is that, if tbe evidence in plaintiff’s behalf establishes beyond question that bis own omission to use ordinary care contributed immediately. to, or itself caused, tbe injury, tbe court should, on motion, direct a verdict or grant a nonsuit.”
It cannot be said that, this complaint “showed tbe proximate (or a proximate) cause of tbe injury to have been tbe act of plaintiff.” The existence of contributory negligence is a matter of defense, and tbe appellant in this case must have so understood it, because be alleged in bis answer that tbe plaintiff was guilty of contributory negligence. This question was tried, and tbe jury, upon a submission by defendant of a request for a special finding thereon, found that tbe plaintiff could not have avoided tbe injury which she sustained by tbe use of ordinary care. No other objection is made to tbe sufficiency of tbe complaint, and, it having been treated as otherwise sufficient upon tbe trial, this court will so consider it upon this appeal.
Tbe appeal was taken from tbe judgment alone, and no-motion for a new trial was ever beard, altbougb tbe record discloses tbat notice of intention to' move for a new trial was given, ánd tbat tbe bill of exceptions (wbicb is brought up> witb tbe judgment roll) was settled for tbe plaintiff’s presentation to tbe court below on tbe motion for a new trial. Tbis is shown by. tbe stipulation found in tbe record hereinabove recited.
In assignment of error No. 11 appellant insists tbat tbe evidence is insufficient to justify the verdict in certain particulars. The respondent insists; tbat tbe appellant cannot raise tbis question on an appeal from tbe judgment, but that such question must be presented to the court below on motion for a new trial. It therefore becomes necessary to determine whether tbis question can be raised upon an appeal from a judgment when a bill of exceptions setting; forth all tbe evidence and containing specifications of tbe insufficiency of tbe evidence to support tbe verdict is a part of tbe record on appeal.
Appellant relies on tbe case of Emerson v. Eldorado Ditch Co., 18 Mont. 24/7, 44 Pac. 969, and insists that under tbe ruling in tbat case tbis court may consider tbe question of tbe insufficiency of tbe evidence- to sustain tbe verdict upon tbis appeal. An examination of tbat case discloses tbat no question •was there raised as to tbe insufficiency of tbe evidence. Tbe evidence, as stated by tbe court, was all one way. Tbe court says: “There was no conflicting evidence before tbe trial judge when be rendered judgment for tbe defendant, tbe respondent here. The testimony offered by tbe plaintiff, tbe appellant, was uncontradicted, and admissions were also' made by respondent in plaintiff’s behalf. Nor was there any contradiction of tbe testimony" offered by respondent, although-it was admitted after numerous objections. Tbe testimony before tbe court was virtually an agreed statement of facts.” So tbat in tbat case tbe evidence contained in tbe record did not support the verdict and judgment, but was contrary thereto. Tbe court in tbe same case, after reviewing several Montana cases, further says: “Tbe expressions referred to were used inadvertently, and from an inspection of tbe whole line of decisions supra we are satisfied that the principle on which they were based was simply that no' review of an issue of fact decided by a jury or trial court could be entertained unless presented in a statement on motion for a new trial on appeal from an order granting or denying a new trial; in other words, the question of the insufficiency of the evidence to justify a verdict or decision must have been directly raised by a strict compliance with the provisions of the statute regulating new trials, before it could be examined on appeal. There must have been a direct — not a collateral — attack on evidence, in so far as the insufficiency of it is concerned, before a review of it on that ground could be entertained. An exception to' a decision or verdict upon a matter of fact, as distinguished from one on a matter of law, must have been saved as a condition precedent to such review.”
This court further considered the question involved in the case of Withers v. Kemper, 25 Mont. 432, 65 Pac. 422. In this case Mr. Justice Milburn, for the court, states the law very, clearly and concisely in the following language: “To attack a judgment of the court as not supported by the findings is to raise a question of law. To attack a-decision of the court on the ground that there was a total failure of any evidence is to raise a point of law. But, in order to bring questions of the weight of evidence before this court on appeal, there must have been a hearing on motion for a new trial, and an appeal from' the order granting or refusing the same.”
The result of these decisions settles the practice in this state as follows: - Whether the verdict or decision is unsupported by any substantial evidence, being a question of of law, may be reviewed by this court on appeal from a judgment, but the question as to- whether the evidence' is sufficient to support the verdict or judgment, where there is. conflicting evidence, cannot be reviewed by this court on an appeal from the judgment.
An investigation of the record in this case discloses a clear conflict in. the evidence in several material aspects* and we cannot say that the verdict and judgment of the court below are entirely unsupported by any substantial evidence. Therefore we cannot consider the question of the sufficiency of the evidence — it being contradictory — upon this appeal.
Counsel for respondent also insist that the specifications, of the insufficiency of the evidence relied on by appellant are not made in such manner as to warrant this court in considering them.
This court, in the case of Cain v. Gold Mountain Min. Co 27 Mont. 529, 71 Pac. 1004, speaking by Mr. Justice Holloway, uses the following language: “The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is. insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to- the same effect. Section 1173 of the Code of Civil Procedure, among other things, provides: ‘When the notice of motion designates as the ground of the motion the insufficiency of the .evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * if no, g-uah specification be made the statement shall be disregarded on the hearing of the motion.’ Hn-cler a specification of the insufficiency of the evidence to supr-port the verdict this, court will not consider what the evidence does show, but only what it fails to show (First Nat’l Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Bardwell v. Anderson, 18 Mont. 528, 46 Pac. 443; Kumle v. Grand Lodge, 110 Cal. 204, 42 Pac. 634; Dawson v.6 Schloss, 93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to. disregard them on this hearing.”
Section 1152 of the Code of Civil Procedure, relative to bills of exception, provides that, “when the exception is to the ver- diet- or decision, upon tbe ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.”
Both of these statutes having the same requirements as to specifications of insufficiency of evidence, the same rules must be applied to each. In the first five specifications counsel simply states what the evidence shows, not what it does not show. He does not particularize wherein it is insufficient, but contents himself with an argument as to the sufficiency of the evidence thus recite'd.
Specification No. 6 is in the following language: “The.evidence does not justify the special findings of the jury Nos. 1, 2, 3, 4, 5, 6, 1, 8, 9 and 10, because, to justify such findings, it must have been believed by the jury that the plaintiff at the time of her injury was both blind and non compos mentis This specification is so absolutely lacking in any specification of the insufficiency of the evidence, within the rule as laid down by the above decisions, that it cannot be considered. So that it appears that, even if this court could consider the insufficiency of the evidence on this appeal, there are no- proper specifications thereof found in the record to warrant such action.
The next error alleged is that the court below refused to1 grant a motion for nonsuit made by the defendant at the close, of plaintiff’s testimony.
This court, by Mr. Justice Holloway, has lately announced the rule as to motions for nonsuit in the following language: “The evidence offered on her [plaintiff’s] behalf tended to prove this contention, and under the rule well established that on motion for nonsuit every fact will be deemed proved which the evidence tends to prove (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mt. Mining Co., 27 Mont. 529, 71 Pac. 1004), the evidence should have gone toi the jury, and the motion for nonsuit was properly denied.” (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42.) So, in this ease, plaintiff having alleged negligence on the part of tbe defendant in not providing reasonably safe machinery upon wbicb tbe plaintiff was directed to wort by tbe defendant’s agents, and in not keeping it in snob condition, and tbat tbe injury complained of resulted from tbe use thereof, and tbe evidence introduced on her behalf clearly tending to maintain her position, tbe motion for a nonsuit was properly overruled.
Tbe next point insisted upon by appellant is tbat tbe court should have directed tbe jury to' render a verdict in favor of tbe defendant. Section 1104, Code of Civil Procedure, provides : “Where, upon tbe trial of an issue by a jury, tbe case presents only questions of law, tbe judge may direct tbe jury to render a verdict in favor of tbe party entitled thereto.” If substantial evidence bad been introduced prior to tbe motion, wbicb in any way or manner tended to support plaintiff’s- contention, then the weight of tbe evidence became a question for tbe jury, and tbe court properly refused a motion to direct a verdict for tbe defendant. (Cain v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448.)
Counsel allege error in tbe admission and rejection of evidence. We have carefully examined these alleged errors, and cannot say tbat appellant was in any way injured by tbe rulings of tbe court thereon.
Instructions of tbe court. Appellant alleges error in tbe court’s refusal to give instructions Nos. 5 and 6 requested by him, and in giving instructions Nos. 2, 8 and 10. We are of tbe opinion tbat tbe court below did not err in refusing to give defendant’s instructions Nos. 5 and 6 as requested. Tbe charge of tbe court as given is very full, and sufficiently instructs tbe jury upon tbe propositions covered by these requests. Neither do we conclude that- tbe court erred in giving instructions Nos. 2, 8 and 10. Perhaps these instructions are somewhat inaccurate in language, but they must be considered in connection with tbe other parts of the charge as. given. We are of tbe opinion tbat appellant cannot complain of tbe giving of these instructions, as the charge as a whole states tbe law as applicable to tbe case at bar as tbe case was presented to tbe court below.
Tbe tenth specification of error relates to tbe following portion of instruction No. 16: “And you may find for tbe plaintiff in any reasonable amount not to exceed $5,000, and may include any reasonable sum you may find plaintiff expended for medical attention.” Tbe entire instruction as given was as follows: “Tbe jury are further instructed that if, under tbe evidence and instructions of tbe court, they find for tbe plaintiff, then in estimating- tbe plaintiff’s damage they have tbe right to take into consideration tbe personal injury inflicted upon tbe plaintiff, tbe pain and suffering undergone by her in consequence of her injury, if any is proven, and you may also consider tbe extent of tbe injury as to being permanent or not, and you may find for tbe plaintiff in any reasonable amount not to exceed five thousand dollars ($5,000), and may include any, reasonable sum you may find plaintiff expended for medical attention if tbe proof shows that she expended any.” It will be noticed that counsel for appellant does not quote tbe conclusion of the instruction in tbe following words: “If tbe proof shows that she has expended any.” By this instruction, therefore, tbe jury were told that plaintiff might recover any reasonable sum she bad expended for medical attention, if the proof showed that she bad expended any. Tbe proof is, uncon-tradicted that she bad spent $7 5 for this purpose. We do not think tbe instruction under tbe evidence was harmful.
Again, if appellant bad desired to ascertain tbe amount of money allowed plaintiff for tbe injury and for tbe moneys expended, be could have requested a separate verdict stating tbe amqunt given for each purpose. This was not attempted, and tbe verdict is general, and, inasmuch as tbe plaintiff claimed $5,000' for tbe injury alone, and tbe verdict is only for $2,000, we cannot see that appellant could have been injured.
A careful examination of all tbe evidence disclosed by this record leads one to tbe conclusion that plaintiff made out a very unsatisfactory case, but there was sufficient substantial evidence in plaintiff’s favor, wbicli was fairly submitted to a jury, and this court upon an appeal from the judgment cannot interfere with the verdict rendered.
We advise that the judgment appealed from be affirmed.
Per Curiam.
For the reasons stated in the foregoing opinion, the judgment appealed from is affirmed.
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] |
Per Curiam.-
This cause having been set for hearing this day, and it appearing that no briefs have been filed herein; it is ordered that this appeal be and the same is hereby dismissed.
|
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] |
Per Curiam.
Tbe motion to- dismiss tbe appeal herein is hereby sustained, and the- appeal accordingly is dismissed.
|
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] |
ME, COMMISSIONER. POORMAN
prepared the opinion Lfor the court.
The complaint in this action was filed March 9, 1903. The plaintiff therein alleges, among other things, the incorporation of defendant company on May 8, 1902, and that prior thereto it was mutually understood and agreed between the plaintiff and “the incorporators” that the plaintiff should perform cer tain work on tbe mining claims of the company to the amount of $750, and should receive as compensation therefor one-sixteenth of all the capital stock of the corporation. If is also alleged that all the stock of the company had been issued, and that the stock claimed by plaintiff was issued to defendant Gerrick to be held in trust by him for the plaintiff; that Ger-rick is insolvent, and will dispose of the stock unless restrained by order of the court; and that both Gerrick and the company had refused to turn the stock over to plaintiff. An injunction pendente lite was asked for. Ou the filing of the complaint an order to show; cause was issued, and the hearing thereon set for March 23, 1903. At the healing defendants presented a joint answer to the order to show cause, admitting the incorporation of the company and the issuance of the stock, but denied the insolvency of Gerrick, that any stock had been issued to Ger-rick in trust for the plaintiff, and that plaintiff was entitled to any stock at all. A contract is then set up; which it is alleged was entered into between Gerrick and the plaintiff prior to the incorporation of the company, and, while Gerrick held an option to buy the mining property, by the terms of which plaintiff was to perform work and labor upon the property continuously until the purchase price thereof of $50,000, together with all expenses of operation, were paid from the product of the mines; that plaintiff was to 'receive therefor a one-sixteenth interest in the property. It is also alleged that the plaintiff had failed to cbmply with the terms of this contract, and that after performing a part of the work he had abandoned the same. At the hearing an injunction pendente lite was issued restraining the defendants from, disposing of this stock claimed by the plain tiff until further order of the court. From the order granting this injunction the defendants appeal. *
The main action to which this proceeding is ancillary has nox yet been tried. We therefore do not discuss the evidence introduced at the hearing, nor consider its sufficiency to sustain a final judgment. It is sufficient to say that the entire record has been examined, and that the evidence introduced by and on bebalf of tbe plaintiff tends 'to1 prove the allegations of the complaint, and to sustain the further contention off respondent that the consideration for the stock in question has been fully paid by the plaintiff and accepted by the defendants. The statute of frauds can, therefore, have no application to this proceeding. This evidence tends further to show that the plaintiff has some right in or to- the stock in question, and we find nothing inequitable or erroneous in the order of the court restraining the defendants from disposing of this stock until the action has been determined on its merits.
We therefore recommend that the order appealed from be affirmed. .
Pee Cueiam:.
For the reasons stated in the foregoing opinion, the order is affirmed.
Rehearing denied February 13, 1904.
|
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MR. JUSTICE HOLLOWAY,
after stating the case, delivered the opinion of the court.
'At the instance of the .plaintiff the court gave instruction No. 8, as follows: “You are instructed that when, without any' f aiilt of the driver, a horse becomes uncontrollable or runs away, it is regarded as an accidental occurrence, for which the driver is not responsible ; and when two causes combine, to produce an injury to a. traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the city is liable, provided the injury would not have been sustained but for such defect”; and refused’ instructions numbered 1 and 2 asked by the defendant, as follows: “No. 3. The city is required to. exercise reasonable skill and diligence in making and keeping the streets and crossings safe and convenient for the ordinary and customary use of and travel thereon, but it is not required to keep' thei streets in such condition that users thereof may with safety drive a, horse thereon at an unusual or furious rate of speed, or may drive an unmanageable horse thereon; nor is the city required to keep the streets in such condition that damages may. not be caused by a horse which has escaped from the control of its driver, ” “No. 2. If you believe from the evidence that the horse driven by the plaintiff, by reason of fright or viciousness, became uncontrollable, so that the driver thereof could not stop' him, or direct his course, or gain control over his movements, and in this condition cámé upon the alleged defective part of the: street in question, and on account of which the plaintiff claims, the accident was caused, then you are instructed that the city is not liable for any injury there was, and you should find for the defendant, unless you believe that such injury would have occurred without such horse becoming unmanageable.”
The evidence tends to show that on the evening of July 22, 1899, the plaintiff and his daughter were driving on the streets of Dillon in a buggy to which was attached one horse; that without any fault on the piart of the plaintiff the horse became frightened and unmanageable and ran away; that at the intersection of Montana and Virginia streets the city had lately con structed a heavy plank walk across Montana, street; that this crossing projected from four to seven inches above the1 level of the street; that the city had caused grading to, be done on each side of this crossing near the center of the street for a portion of the distance along the crossing, so as to' enable vehicles to pass over it (the extent to which this grading had been done is somewhat in doubt. Witnesses for plaintiff testified that it was done only for a distance sufficient to enable one wagon to cross at a time, while witnesses for defendant, testified that it was done for from twenty to twenty-eight feet. Admittedly it was done for less than one-third of the width of the street and length of the crossing) ; that when plaintiff’s buggy passed over this crossing two of the wheels struck the -walk where no grading had been done, and the force of the contact threw the plaintiff to the ground, inflicting serious and probably permanent injuries. The contention of the defendant is that the cause of plaintiff’s injury was the running away of his, horse, and instructions Nos. 1 and 2, above, are apparently framed upon the theory that the negligence of the city in permitting' the crossing to be unsafe must, have been the sole cause of plaintiff’s injuries. If such injuries resulted from the defective street crossing, and from any other accidental, intervening or proximate cause, the city would not be liable.
While this theory of the law has the support of very respectable authority, we prefer to follow the doctrine which appears to be supported by the weight of authority and the better reasoning, viz., that where two causes contribute to an injury, one of which is directly traceable to the defendant’s negligence, and for the other of which neither party is responsible, the defendant will be held liable, provided the injury would not have been sustained but for such negligence. (Lundeen v. Livingston E. L. Co., 17 Mont. 32, 41 Pac. 995 ; Elliott on Roads and Streets, Sec. 615; Chicago & N. W. Ry. Co. v. Prescott, 59 Fed. 237, 8 C. C. A. 109, 23 L. R. A. 654; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481.) Thei question for determination in this instance was not whether defendant’s negligence was the sole cause of the injury, but whether it was. causa- sine qua- non. (Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410.) This question, we think, was fairly submitted to the jury for determination.
The doctrine here announced is, very fully set forth in Union St. R. Co. v. Stone, 54 Kan. 83, 31 Pac. 1012, in an action the facts of which are very similar to> the facts in the case at bar. The court in part says: “It is urged that there is no liability on the part of the railway company or the city of Winfield for the negligent defect or obstruction of the street, as, the runaway team concurred in producing the injuries of Mrs. Stone,. This is the rule in Massachusetts, Maine, Wisconsin, and West Virginia ; but the contrary is held by the courts of New York, Pennsylvania, Georgia, Missouri, Indiana, Connecticut, New Hampshire, Vermont and Texas. Elliott, in his recent work on Koads and Streets, says,: ‘According to the weight of authority, the city is liable where a horse takes fright, without any negligence on the part of the driver, at some object for which the municipality is not responsible, and gets beyond the control of his driver, and runs away, and comes in contact with some obstruction or defect in the road or street Avhich the city has been negligent in not removing or repairing, if the injuries would not have been sustained but for the obstruction or defect.’ -x- * *- ygQ prefer tó follow the general weight of authority, and therefore cannot adopt the rule that cities are not liable for injuries to a runaway horse or his, owner occasioned by an obstruction or defect in the streets.”
It is also contended by the defendant city that it was not required to keep the street crossing in repair for the entire width of the street, but only to the extent of the main traveled portion of the street, provided that be sufficiently wide to- accommodate the ordinary public -travel, and therefore the court erred in refusing instruction No1. 3, asked by defendant, as follows : “A city is not required to keep all parts of its streets and the entire width of its streets in good condition and repair. The duty of the city to keep in good condition and good repair only extends to tliat part or portion of the street actually used by the public for travel, provided that part so used for travel is of sufficient width to> be safe, and is, in its actual condition, reasonably safe for travelers who> use due care. And if you believe from the evidence that sufficient part and width of the street in question was. at the time the injury occurred, as complained of, in such condition and rep|air as to- be safe and convenient for the customary use thereof for public travel, then you should find for the defendant, notwithstanding you may believe that an injury occurred to the plaintiff by reason of defects in other parts of the same street outside- of the customary traveled portion of such street.’
The evidence shows that Montana street is about sixty feet wide; that it is one of the principal thoroughfares of the city of Dillon, and, so far as anything to the contrary appears, is open to public travel throughout its entire width. Taking the view most favorable to the defendant, the question whether the portion of the street in repair was of sufficient width to render the street reasonably safe for public use was one for the jury’s determination under proper instructions. (Union Street Ry. Co. v. Stone, above; Walker v. City of Kansas, 99 Mo. 647, 12 S. W. 894; Saylor v. City of Monte sano, 11 Wash. 328, 39 Pac. 653.) We hardly think it can be said as an abstract proposition of law that “a city is not required to' keep all parts of its streets and the entire width of its streets in good condition and repair.” The correctness or incorrectness of that in any given instance depends upon a variety of circumstances, which can hardly be said to' be fairly treated in defendant’s instruction No. 3. We think the court fairly presents the matter to the jury in instructions Nos. 4 and 5, which read as follows: “No. 4. You are instructed that the defendant corporation is bound by law to1 use all reasonable care, caution and supervision to- keep- its streets in a safe condition for travel in the ordinary mode of traveling, and if it fails to do so- it is liable for injuries sustained in consequence of such failure; provided the party injured is himself exercising rea sonable care and caution.” “No. 5. Yon are instructed that a city is not an insurer of the safety of its streets, but is only required to keep them in a safe condition for ordinary travel; and, although the plaintiff may have exercised due care and could not have prevented the runaway, yet, if the street or crossing where the injury occurred was in a safe condition for ordinary travel, the city is not liable.”
Much of the argument in appellant’s brief is directed to questions of contributory negligence; but the answer in this case consists of general denials, and puts in issue only the questions of plaintiff’s injury and the negligence of the defendant. The defense of contributory negligence is in the nature of a confession and avoidance, and must be specially pleaded. (5 Ency. Pleading & Practice, 10; Kansas City, M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262.) The question of con tributory negligence, therefore, -was not in issue in this case. It is -not made to appear from the allegations of the complaint itself, and under the rule that on motion for a nonsuit that will be deemed proved which the evidence tends to proveí we are of the opinion, after consideration of the evidence offered on behalf of the plaintiff, that the court committed no error in denying defendant’s motion for a nonsuit. Further than this, the subject is not properly before this court.
The specifications of particulars in which the evidence is insufficient to support the verdict are inadequate for the purpose intended under the provisions of Section 1173 of the Code of Civil Procedure and the construction given to' that section by this court in Cain v. Gold Mountain Mining Co., 27 Mont. 529, 71 Pac. 1004.
The order overruling defendant’s motion for a new trial is affirmed.
Affirmed.
|
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MIL COMMISSIONED POOPMAN
prepared the opinion for the court.
This is an action for damages alleged to have been caused by the decedent, A. H. Mitchell, in wrongfully and forcibly taking from, the possession of plaintiff one quartz mill. Plaintiff filed a claim with the executrix, which was disallowed, a copy of which claim was attached to plaintiff’s complaint as a part thereof. Defendant filed a, general demurrer to the complaint, which Avas sustained, and', plaintiff refusing to amend his complaint, judgment Avas entered for the defendant for costs. Erom this judgment the plaintiff appeals.
The creditor’s claim filed against the estate is in the usual form of such claims, and states that the claimant is a foreign corporation. The name of the corporation appears in the body of the claim, and is signed thereto' as folloxvs,: “Empire State Mining Company, by Cullen Day & Cullen, Its Attorneys, Claimant.” The affidavit thereto, is the folloAving:
“State of Montana, County of Lewis and Clarke, — ss. E'. C. Day, one of the attorneys for the Empire State Mining Company, AA'hose foregoing claim is herexvith presented to the executrix of the last xvill and testament of the said deceased, being duly sworn, says: That the Empire State Mining Company is a corporation, and none of its officers except its said attorneys reside within the County of Lexvis and Clarke; State of Montana, xvherein its said attorneys reside, and that the amount
thereof, to-Avit: the sum of ten thousand dollars-, is justly due to said claimant; that no payments have been made thereon AA'hich are not credited, and that there are no- offsets to the same to the ImoAAdedge of said affiant. E. 0. Day.
“Subscribed and SAVorn toi before me this 13th day of Sepitem-bér, 1899. W. El Cullen, Jr., Notary Public in and for LeAAÜs and Clarke County, State of Montana. [Notarial Seal.]”
It is claimed by respondent that this affidavit is fatally defective. Section 2604, Code of Civil Procedure, provides that every claim Avhicli is due, Avhen presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf: (1) That the amount is justly due; (2)_ that no' payments have been, made thereon AA'liich are not credited; and (3) that there are no offsets to- the same to the knowledge of affiant. If the claim be not due AAThen presented, or be contingent, (4) the particulars of such claim must bo stated. When the affidavit is made by a person other than the claimant., he must set forth in the affidavit (5) the reason Avhy it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory Amuchers or proofs-to be produced in support of the claim. Section 2609, Code of Civil Procedure, provides that Avlie-n a claim is presented to a judge for his alloAvance he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.
This claim, if a claim at- all, Avas due Avhen presented, and Avas not contingent. The fourth requirement does not, therefore, apply. This affidaAdt complies directly Avith all the other specific requirements of the section, except the fifth, and Avh ether it meets this requirement must be gathered from the portion of the statement made by affiant under oath, omitting the recital preceding the Avord “says.” Under- a strict construction of this section, this omission AAnuld be fatal. It aauII be noticed that the section does not, in specific terms, require the relationship betAveen the affiant and the claimant to be stated. It is further proper to note that- tbe claimant Ire-rein is a corporation, which can act only through its officers and agents.
These sections of our Code were copied from the laws of California, and the supreme court of that state, in Griffith v. Lewin, 129 Cal. 596, 62 Pac. 172, says, with reference to the sufficiency of an affidavit to a creditor’s claim', “A substantial compliance with the statute is all that is required”; citing Hall v. Superior Court, 69 Cal. 79, 10 Pac. 257; Davis v. Browning, 91 Cal. 604, 27 Pac. 937; Warren v. McGill, 103 Cal. 155, 37 Pac. 141; Landis v. Woodman, 126 Cal. 455, 58 Pac. 857.
In In ra Estate of Swain, 67 Cal. 637, 8 Pac. 497, this language is- used: “The affidavits verifying these claims were irregular. Each was made by a person, other than the claimant, styling himself as ‘agent and attorney of the claimant.’ In one no reason is stated why the affidavit was not. made by the1 claimant. In neither does the affiant state that there were no payments or offsets to the claim, except what are credited, to his own knowledge; although it is stated that there were no payments or offsets against the claimant to' the knowledge of the claimants. These omissions, made the verifications, of the claims defective. * * * But, although neither of the claims was verified in all particulars as required by law, and the statement of each is not as clear as it might have been, we think each was substantially sufficient for presentation and allowance under the law.”
In Hanna v. Fisher, 95 Ind. 383, the court says: “The affidavit was made by Alfred Eisher, but it is not stated that he was the agent or attorney of the claimant, and it is insisted that it is, therefore, insufficient, and that the appellee is bound for all costs. The statute provides that the affidavit shall be filed by the claimant, his agent or attorney, but it does not provide that the relationship' of affiant shall be stated. The object of the statute is to secure a verification of the claim, and when the1 claim is, verified we do not feel satisfied that the failure to state in the affidavit that the person who made it was the agent or attorney of tire claimant should cast upon the latter the burden of costs.”
Respondent cites Cope v. Minnesota Type Foundry Co., 20 Mont. 67, 4-9 Pac. 387, and insists that the construction given the law relative to the affidavit to1 a chattel mortgage should govern in this case. The office to be performed by an instrument is proper to take into account in construing the law relating thereto. Chattel mortgages are. purely statutory. They had no existence at the common law, and are in derogation thereof. The law which provides for them also, provides that they are void as. to certain third persons, unless the prolpier affidavit is made thereto'. The affidavit gives vitality to the mortgage as to creditors and subsequent purchasers; and as to them it has, in effect, no existence.without the affidavit. A valid mortgage segregates the property of the mortgagor from the claims of all creditors except the mortgagee. Third persons cannot require vouchers or proofs to be produced, or examine the parties under oath.
Creditors’ claims against an estate are not in derogation of common law. They are not created by statute, but arise from the relations or business transactions, of the parties. They were valid subsisting claims prior to' the death of decedent. Their presentation, to the estate is only a procedure. The affidavit is only a verification. The administrator or executor may “require satisfactory vouchers or proofs to be produced in support of all the claims,.” The judge “may * * * examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.” As was stated in Landis v. Woodman, supra, “the administrator or executor may investigate to the lowest dregs the validity and honesty of all claims.”
It is apparent from the affidavit itself that affiant did not verify this claim in his own behalf. We think it also apparent that the verification was made in behalf of the claimant corporation for the reason that the officers of the corporation were absent.
While this affidavit is not a model to be recommended, yet under the liberal construction given to' this law, taking into account the purpose to be subserved by the affidavit, we conclude that the affidavit 1x> this claim, under all the circumstances, sufficiently complies with the law.
It is further claimed by appellant that, this being a demand arising out of tort, it is not necessary that any claim be filed with the executor prior to the bringing of suit; but, inasmuch as the claim filed sufficiently complies with the law, it is unnecessary to consider this question.
■We recommend that the judgment in this cause be reversed.
Pee, Cueiam.
Por the reasons stated in the foregoing opinion, the judgment appealed from is reversed, and the cause remanded.
Me. Justicie MtdbueN dissenting.
|
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] |
ME. CHIEF JUSTICE BBANTLY,
after stating the case, delivered the opinion of the court.
At the hearing in this court counsel for plaintiff interposed motions to' dismiss both' appeals on various grounds, among others, that the order of October 23d is not appealable, and that the notice is ambiguous and uncertain, in that it does, not appear therefrom to which order it refers. There is no merit in the motion so far as it is directed at the appeal from the order of the court entered in the minutes granting the injunction. The notice is couched in separate paragraphs. By reading the first paragraph with each of the other two; there is a separate and distinct notice of each appeal, the notice being almost in the exact form of the one considered in In re Barker's Estate, 26 Mont. 279, 67 Pac. 941. It is a sufficient notice, for it is entirely clear that the respondent understood therefrom that the appellants intended to prosecute two appeals. The fact that two separate notices were included in the same paper, though an apjDeal does not lie from one of the orders, does not affect the right of the appellant to prosecute an appeal from the one which ,is appealable. As to the appeal from, that order, the motion is denied. The evident purpose of the district judge in signing the order, and filing it with the record on October 23d, was that this order shbuld be the injunction, which in form and substance it is, except that it is signed by the district judge. It was intended to perform the office of process, to carry into effect the order of the previous da.y. No appeal lies from an injunction, and the motion as to this appeal is sustained.
Counsel in their briefs have presented and argued many questions which are not pertinent in any manner to this investigation. Much of the appellants’ brief is devoted to an argument to show that the district court had no jurisdiction of the Amalgamated Company, because it had never been served with process nor had appeared in the action. It is not necessary to consider the question thus presented, because, if the district court had no jurisdiction of the Amalgamated Company Ijy service of process, that company is not aggrieved by the order. If it had jurisdiction, and the Amalgamated Company is aggrieved by the order, it took no- appeal, and can obtain noi relief from this court, except so far as the relief granted to the appealing defendants may incidentally affect its .rights.
Much argument in the appellants’ brief is. also devoted to the questions whether or not the Amalgamated Company is engaged in doing business in this state in violation of the law, and whether it is a monopoly and subject to the prohibition contained in Section 20 of Article XV of the Constitution, and the penalties provided by Section 321 of the Penal Code.
The plaintiff sues as a private citizen. He is not, as such, authorized to present, through the medium of a civil action, and try the issue, whether the defendant Amalgamated Company is doing business in this state in violation of a law. A determination of this issue as an independent ground of relief must be had, if at all, by the state, and in its own behalf, through the attorney general. It is no concern of the plaintiff if the state neglects or waives its right to call the defendant to account. In general, the same may also be said as to the issue whether the combination formed by the defendant Amalgamated Company, through its officers and the stockholders of the Montana Company and the other corporations, is a monopoly and in violation of the Penal Code of the state, rendering the defendant Montana Company liable to punishment and a forfeiture of its franchises and property. (Cook on Corporations, Sec. 632; Coquard v. National Linseed Oil Co., 171 Ill. 480, 49 N. E. 563; Stewart v. Erie, etc. Transportation Co., 17 Minn. 372 (Gil. 348) ; City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606, 33 N. W. 749.) Nor do we know of any provision of law authorizing a court of equity,, at the instance of a minority stockholder, to decree a forfeiture of the stock of any stockholder in the same corporation, to the corporation, on the ground that the title of such stockholder has been acquired and is held in violation of the charter of the corporation.
Nevertheless, so far as the participation of the Montana corporation and its officers in an unlawful combination to create a monopoly subjects its property and franchises to forfeiture, and thus imperils the property rights of the minority stockholder, he has a cause of conqplaiut against it and them,- and may, through the medium of a court of equity, compel it and them to abandon such unlawful connection and return to a performance of their obligations under the charter contract of the company, to-wit, to accomplish, through its board of directors, the purpose for which it was formed, and by lawful means. The officers of a corporation are trustees; by their acts in engaging in an unlawful enterprise, and making the corporation a party to it, they are guilty of a breach of trust, and both they and the corporation can be held to account by a’, court of equity, at the suit of a minority stockholder who has- not participated in the violation of the law. (Cook on Corporations, Secs. 646, 647; Forrester et al. v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353.)
Tbe propriety of tbe action of tbe district court in granting tbe preliminary injunction, therefore, depends upon a solution of two fundamental questions, to-wit: Did tbe transaction by wbicb tbe Amalgamated Company acquired a majority of tbe shares in tbe Montana Company have for its purpose, or result in, tbe formation of a trust within tbe meaning of tbe sections of tbe Constitution and tbe Penal Code referred to; and, if not, is it in violation of tbe rights of tbe plaintiff for tbe Amalgamated Company to own and vote shares of stock in tbe Montana Company, so long as its power is not used to tbe detriment of plaintiff ? An affirmative answer to either of these questions will require an affirmance of tbe order.
Tbe Amalgamated Company was organized under tbe laws of the state of New Jersey on April 21, 1899, tbe charter designating its principal office in Jersey City. Tbe incorporators were persons intimately associated with tbe authorities of tbe Montana Company. Its powers and objects are very extensive. It has tbe power, among other things: “(1) To carry on tbe business of mining, milling, concentrating, converting, smelting, treating, preparing for market, manufacturing, buying, selling, exchanging, and otherwise producing and dealing in gold, silver, copper, metals and minerals, and in tbe products and byproducts thereof of every kind and description, and by whatsoever process tbe same can be or may be hereafter produced ; and generally and without limit as to amount, to buy, sell, exchange, lease, acquire arid deal in lands, mines and minerals, rights and claims and in tbe above specified products, and to conduct all business appurtenant thereto. * _ * * (8) To purchase, subscribe for or otherwise acquire, and to bold tbe shares, stocks or other obligations -of any company organized under tbe laws of this state, or of any other state, or of any territory or colony' of tbe United States, or of any foreign country, and to sell or exchange the same, or upon a distribution of tbe assets or division of profits, to distribute any such shares, stocks or obligations or tbe proceeds thereof amongst tbe stockholders of this company.” Its capital stock was originally $15,000,000.
At the time the hearing under the order to show cause was had, it had acquired all the stock in the Washoe Company, the Big Blackfoot Milling Company, and a majority of the shares in the following companies: The Anaconda, Copper Company, the Parrot Silver & Copper Mining Company, and the Hen-nessv Mercantile Company — all Montana corporations. These stocks had been acquired prior to June, 1901. To these may be added the Montana Company and the Butte & Boston Company. In brief, the negotiations by which the shares of these latter companies were acquired are the following: On or about April 15, 1901, the directors of the Montana Company received a proposition from Kidder, Peabody & Co., bankers, of Boston, Mass., that they would undertake to. negotiate an exchange of shares held by the stockholders of that company, to the amount of at least 100,000 shares, for shares of the Amalgamated Company, upon some equitable basis. Pending negotiations, the shares of the Montana Company were to; be deposited in the bank and negotiable receipts issued therefor. If the exchange should be effected, each depositor was to receive- a negotiable receipt for the number of shares of the Amalgamated Company he would be entitled to. If not satisfied with the result of the negotiations, each depositor was to have the- option either to take $-315 per share in money for his certificates, or to- withdraw them altogether. It was further stated that Kidder, Peabody & Co. would reserve the right to- return all stock deposited, unless within seven days after April 25th they were prepared to submit a satisfactory offer for the exchange. Deposits were to be made on or before April 25th. This proposition was at once communicated by the directors' of the Montana. Company to the individual stockholders of that company, with the statement that all the officers, directors and large stockholders had agreed to make the deposit under the prescribed conditions. The negotiations, thus begun were delayed from time to time. Like negotiations were begun at the same time with the directors and stockholders of the Butte & Boston Company, it being the wish of the Amalgamated Company not to acquire an interest in either company unless it could obtain a majority of the stock in each of them. Finally an agreement was reached for a satisfactory basis of exchange. On June- 6, 1901, the Amalgamated Company, at a meeting of its board of directors called for that purpose in Jersey City, N. J., increased its capital stock to $155,000,000 in order to effect the exchange. This exchange was accomplished in the latter part of June. The increase of the capital stock of the Amalgamated Company had been authorized at a stockholders’ meeting of the company' held in the city of New York on May 22d. The basis of the exchange finally agreed upon was 1 share in the Montana Company for 5 1-3 shares in the Amalgamated Company, and 1 share in the Butte & Boston Company for 11-3 shares. The estimated value of the properties belonging to the two Montana corporations was fixed by engineers employed to examine them at $75,000,000 to $80,000,000, while the market value of their combined stocks was estimated at $90,000,000. The result was that the Amalgamated Company acquired 147,915 shares of a. total of 150,000 in the Montana Company, and 197,222 shares of a. total of 200,000 in the B-utte & Boston Company, thus giving the former complete control of the latter.
To go back for a moment in the order of events. Early in January, 1899, an agreement had been entered into between a number of the stockholders of the Montana Company and a committee consisting of Albert S. Bigelow, Edward C. Perkins and Sidney Chase, the first two being directors of the Montana Company, under the terms of which the stockholders were to and did deposit with the State Street Trust Company, a Massachusetts corporation, for safe keeping, their shares of stock in order to concentrate their power and effect an organization for the purpose of protecting the properties of the company from ruinous and groundless litigation which had, as was stated in the agreement, arisen in the courts of Montana. The Massachusetts corporation was a party to the agreement, but only for the purpose of acting as trustee. The members of the committee were, by the terms of the agreement, constituted sole agents and attorneys for the depositing stockholders. They were empowered by a majority to act for the stockholders in any man ner deemed necessary to carry out tbe purposes of tbe trust. They could bring, prosecute and defend suits, or compromise or continue tbem, or take any step in connection witb tbem deemed advisable by counsel. They could vote all shares of tbe stock held in trust at all stockholders’ meetings, either as a, committee or through one of the members authorized h> do so. They could assent to a dissolution of the corporation and the disposition of its property. The agreement could be terminated at any time at the discretion of the committee. This committee is referred to by some of the witnesses as the “protective committee.”
The foregoing partial synopsis of the agreement sufficiently indicates its nature and purposes, and the extensive powers it conferred upon the committee. It does .not distinctly appear from the evidence that the committee had anything to do with the organization of the Amalgamated Company, but the intimate connection shown to exist between it and the' Amalgamated Company is made.manifest by the statement of the secretary and treasurer of the Amalgamated Company, contained in his deposition used at the hearing, that, though the acquired stock is owned by the Amalgamated Company, it is in fact held by the committee, while the company holds the certificates of deposit issued by the committee. What other agreement there was, if any, does nob appear. Nor does it appear, except indirectly, that one of the purposes of the organization of the Amalgamated Company was to acquire the stock of the Montana Company. From the facts stated, however, it would seem that the committee was merely an instrumentality devised to secure some sort of organization or combination of the interests of the Montana corporations, including the Montana Company, which finally culminated in the organization of the Amalgamated Company; for most of the persons engaged in the promotion of the scheme were officers and stockholders of the Montana corporations.
But be this as it may, all the corporations of which the Amalgamated Company has secured control, except the milling and mercantile companies, are engaged in the business of mining copper and other ores and marketing the product. It is not unreasonable to presume that it is a, holding corporation, one design of it being to secure harmony among the servient companies.
We thus have a combination of corporations, the dominant one of which is subject only to the laws of New Jersey, while the servient bodies were all organized and are subject to the laws of the state of Montana. Does this combination fall within the prohibition of the Constitution and of the Penal Code, sufraf
The Constitution declares: “No1 corporation, stock company, person or association of persons in the state of Montana, shall directly, or indirectly, combine or form what is known as a trust, or make' any contract with any person, or persons, corporations or stock company, foreign or domestic, through their stockholders, trustees, or in any manner whatever, for the purpose of fixing the price, or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people. The legislative assembly shall pass laws for the enforcement thereof by adequate penalties to the extent, if necessary for that purpose, of the forfeiture of their property and franchises, and in case of foreign corporations prohibiting them from carrying on business in the state.” (Section 20, Article XV.)
The Penal Code re-enacts the substantive part of this section, and provides penalties for its violation and for other offenses. It is as follows: “Every person, corporation, stock company or association of persons in this state who, directly or indirectly, combine or form what is known as a trust, or make any contract with any person or persons, corporations or stock companies, foreign or domestic, through their stockholders, directors, officers, or in any manner whatever, for the purpose of fixing the price or regulating the production of any article of commerce, or of the product,of the soil for consumption by the people, or to create or carry out any restriction in trade, to limit productions, or increase or reduce the price of merchandise or commodities, or to fix a standard or figure whereby the price of any article of merchandise, commerce or produce, intended for sale, use or consumption, will be in any way controlled, or to create a monopoly in the manufacture, sale or transportation of any such article, or to enter into an obligation by which they shall bind others or themselves not to manufacture, sell or transport any such article below a common standard or figure, or by which they agree to keep such article or transportation at a. fixed or graduated figure, or by which they settle the price of such article, so as to preclude unrestricted competition, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding ten thousand dollars, or both. Every corporation violating the provisions of this section, forfeits to the state all its property and franchises, and in case of a foreign corporation it is prohibited from carrying on business in the state.” (Section 321.)
Article XY, supra, deals generally with the rights and.powers of corporations and associations of persons exercising any of the powers and privileges not possessed by individuals or partnerships, and their duties and purposes. It is prohibitory and restrictive in its general scope and purpose, the design of the convention in adopting its provisions'being to prevent combinations to restrict or repress competition in all industrial pursuits, and to protect the people in general, and the employes of a certain class, against both the legislature and combinations of capital, from unjust impositions. Certain combinations and consolidations are prohibited altogether, as having a necessary tendency to restrict competition, such as consolidation, by purchase or otherwise, by one railroad or other transportation company, with another having a competing line (Section 6), or the control of a telephone or telegraph company by another competing company (Section 14). Apart from- these prohibited combinations, the right of consolidation by corporations or associations engaged in these particular pursuits is not prohibited. Nor are such combinations, either of corporations or individuals, engaged in other pursuits prohibited, except as provided in Sec tion 20. Section 15 declares that any combination or consolidation by a domestic corporation with one organized under the laws of another state or country shall not result in depriving the courts of this state of jurisdiction over the property of such corporations in this state. Apart from these wholesome restrictions and prohibitions, the right of the people to accumulate property and to hold and enjoy it, either by individual effort or by means of associations of natural or artificial persons, is not restricted.
S’ection 20 prohibits any combination or contract which has a particular purpose, to-wit, “fixing the price or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people.” The terms “combine” and “form a trust” were evidently intended to bé read in connection with the expression “for the purpose,” etc., clearly implying that, in order to subject offenders to the severe penalties which the legislature might impose, there must be shown a specific intent to do the prohibited act, or that the association or combination necessarily tends to accomplish the same result. That this is the meaning is clear from the enumeration of persons who may not do the prohibited acts. Corporations, stock companies, natural persons, or partnerships are all included. If the criminal intent is not a necessary ingredient of the evil denounced, then all sorts of combinations are to be deemed prohibited, even ordinary copartnerships, as coming within the letter of the prohibition. Por the terms- “combine” and “form a trust” are of equal dignity. If the former is to be regarded as modified and explained by the clause “for the purpose,” etc., by the same rule must the latter also. .
The term “trust,” if assigned the meaning’; given to it by the text-writers (Cook on Corporations, - Sec. 503a; Spelling on Trusts, Sec. 121), includes any form of combination between corporations, or corporations and natural persons, for the purpose of regulating production and repressing competition' by means of the power thus centralized. It was first used in a narrower sense, we believe, of an organization formed by a combination of several corporations under one direction, by the de vice of a transfer by the stockholders in each corporation of a majority of the stock to a central committee, who issued to the stockholders in return certificates showing, in effect, that, though they had parted with their stock, they were still entitled to share in the profits, the purpose being to control competition in production and transportation, and thus the price to the consumer. If it be construed as. equivalent to the term “combination” or “consolidation,” the meaning of the section is perfectly clear. If used in the sense of the definition given it by the text-writers, it is none the less clear, though it involves a repetition of the same idea, since the definition includes the idea of criminal purpose, and makes it a necessary ingredient of the offense denounced.
The section of the statute quoted involves the same idea, and demands the same construction, though it is more specific in its provisions, and extends to and includes combinations in restraint of competition in transportation. It denounces every form of combination or contract which has for its purpose, directly or indirectly, the restraint of production or trade in any way or manner, or the control of the price of any article of consumption by the people. It was not the purpose of the convention, or of the legislature, to limit either the term used in the constitution, or in the statute, hy any narrow definition, but to leave it to the courts to look beneath the surface, and, from the methods employed in the conduct of the business, to determine whether the association or combination in question, no' matter what its particular form should chance to be, or what might be its constituent elements, is taking advantage of the public in an unlawful way. (Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 74 Am. St. Rep. 189.) In each case, therefore, under these provisions, the nature of the arrangement or combination is a question of fact to be determined by the court from the evidence before it, or from the vice which inheres in the contract itself.
The facts in the record before us, tending to show the purposes and methods of the Amalgamated Company and associate corporations, do not justify the conclusion that the combination involves a criminal intent to evade or transgress tbe provisions of law wbicli bave been considered. Witnesses, who took part in tbe organization of tbe Amalgamated Company and tbe acquisition of tbe stock in question, and wbo are officers of tbe Amalgamated Company as well as of some of tbe Montana corporations, stated tbat tbe exchange of stock was for tbe purpose of investment only; tbat, apart from a solicitude concerning tbe success and prosperity of tbe Montana Company and tbe other servient corporations, they bave taken no interest in their affairs, nor attempted in any way to- control their business, and tbat each of them has been allowed to pursue independently tbe purpose for which it was organized, and to market its own product. Whatever doubt there may be as to the candor and truth of these professions, it does not appear that the combined companies entered into any agreement to control, or have controlled, or attempted to control in any way, the transportation or the price of copper or any by-product of the business, or to regulate the amount of production. Nor does it appear that they have attempted to affect in any way the wages of their employes. The total product of copper in the United States during the jear 1901, for example, was approximately 500,000,000 pounds; Montana properties produced about 210,000,000 pounds of this output. The out put of the associated companies was approximately 150,000,000 pounds, the remainder of the total being the product of other mining companies not associated with them. While the associated companies are thus shown to have produced about three-fourths of the whole product of this state, and nearly one-third of the product of tbe United States, the price persistently decreased from 16% cents per pound early in 1901 to 10 cents in the latter part of that year, and has fluctuated since that time, never rising higher than 15 cents. The dividends of all companies engaged in tbe industry bave persistently declined in value owing to the decline in the price of the product, though tbe amount produced has remained substantially tbe same. Yet there is nothing to indicate that any of the associated companies have anything to do' with these conditions. Indeed, tbe evidence tends to show that they have been the result of natural causes, dependent upon the condition of the market, over which they have had no control. Nor is there any evidence that the Amalgamated Company has in any way attempted to use its power to discriminate in favor of or against any servient company to the advantage of itself or the detriment of any minority stockholders, or to1 affect competition with other companies. While the dominant company might, either by means of its superior position or other connections, perpetrate any of these wrongs, it does not appear to have done so, nor to have manifested any disposition to do so. Hence the evidence does not convict the Montana Company of such unlawful purpose, in connection with the Amalgamated Company, that it is liable for this reason to have its property and franchises forfeited at the suit of the state.
It is not every act of a corporation, though unlawful, that will give the minority stockholder therein a right of action against it. So far as he is not injuriously affected, directly or indirectly, he has no ground to complain, and, until it makes such connections, or pursues such a course as to make it amenable to the law, he cannot be heard to question its action.
It is held by many courts that the mere possession of power by a combination of corporations or associations, or persons, to injuriously repress competition, to regulate production, and fix prices, is against public policy, and all such are by them declared illegal as against public policy. This is,' true of the Illinois Supreme. Court, as will be found by an examination of Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 74 Am. St. Rep. 189. It is said in that case: “The material consideration in the case of such combinations is, as a general thing, not that prices are raised, but that it rests in the power and discretion of the trust or corporation taking all the plants of the several corporations to raise prices at any time, if it sees fit to do so.” This case is typical of the class which hold to this doctrine. But an examination of them will reveal the fact that, in each particular case before the court for consideration, it appeared either from the fact proved or admitted, or from the terms of tbe contract itself, tbat tbe defendants entertained and were pursuing tbe unlawful purpose. Tbe manifest purpose of tbe constitution and tbe legislative utterances must be deemed controlling in this jurisdiction.
What we bave said relates only to tbe evidence adduced at tbe bearing under tbe order to1 show cause. If upon tbe final bearing, after tbe issues are made up', it sboúld be made to appear tbat tbe associated companies are proceeding in violation of tbe law, tbe district court would be justified in issuing a perpetual injunction to restrain the Montana Company and its directors from further participating in tbe unlawful connection. This case does not fall within the principle of Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353, as respondent contends.
Tbe contention is made by tbe appellants tbat one corporation may own and vote stock in another corporation, provided its charter authorizes it to do- so; tbat the Amalgamated Company has this- power under its charter; tbat tbe laws of tbe state under which it was created authorizes such a grant; and tbat it has a right to own and vote stock in any Montana corporation, even though it was acquired for tbe purpose of controlling it; and tbat tbe injunction was not properly issued. Tbe respondent admits tbat tbe Amalgamated Company is lawfully authorized by its charter to own and vote stock in any corporation, no matter where organized, but tbat it cannot exercise this power in Montana unless it is permitted to do- so by express provision of law authorizing corporations of Montana to do tbe same thing. There is no such provision of law, counsel say, and therefore tbe exercise of this power contravenes tbe provision contained in Section 11 of Article XY of tbe Constitution, which denies foreign corporations tbe enjoyment, within this state, of “any greater rights or privileges than those possessed or enjoyed by corporations of tbe same or similar character created under tbe laws of tbe.state.”
We bave, then, tbe Amalgamated Company, a corporation duly authorized by its charter, under tbe laws of New Jersey, to bold and vote stock in other corporations, no matter where created. Do the laws of this state authorize mining companies organized in this state to own and vote stock in other mining corporations ? If they do, it is not the duty of the board of directors to- interfere with the exercise of that right by the Amalgamated Company, and the respondent may not compel them to- do so, unless they are guilty of or permit abuses of their trust.
The general rule is that one corporation cannot hold or vote stock in another unless expressly authorized so to do by the terms of its charter or by a statute. This was formerly the rule ^ in England (Green’s Brice’s Ultra Vires, 91) ; but it has been much relaxed by the later decisions, which recognize many exceptions (Id. 92, 93). The general rule prevails in the state and federal courts in this country. Iowa and Maryland are, possibly, the only exceptions. (Latimer v. Citizens' State Bank, 102 Iowa, 162, 11 N. W. 225; White v. Marquardt & Sons, 105 Iowa, 145, 74 N. W. 930; Booth v. Robinson, 55 Md. 419. The case of Califoria Bank v. Kennedy, 161 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198, is an example of the application of the rule. See, also, Parsons v. Tacoma Smelting & Refining Co., 25 Wash. 492, 65 Pac. 765; People ex rel. Peabody v. Chicago Gas Trust Co., 130 Ill. 268, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319, and cases cited; Thompson on Corporations, Sec. 1102; People v. North River Sugar Refining Co., 121 N. Y. 582, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843; Marble Co. v. Harvey, 92 Tenn. 115, 20 S. W. 427, 18 L. R. A. 252, 36 Am. St. Rep. 71.)
This is but a corollary of the- x>rincip-le that, on grounds of public policy, a corporation can do no other act or make any contract that is not expressly or impliedly authorized by1 its charter, read in the light of the general provisions of law on the subject. The converse of the rule is also generally recognized, to-wit, that a corporation is the creature of law, and may do- any act or enter into any contract exp-ressly or impliedly authorized by its charter or the law of its creation.
The Montana Company was organized on June 21, 1887, under Section 446, Eifth Division, Comp. St. 1887,— fox the purpose of mining, milling, smelting, concentrating, buying and selling ores, and doing -a general mining business in connection with such other business as might be useful or profitable, in the state of Montana. Its charter does not, nor did the statute at that time, expressly or impliedly permit it to own or hold stock in other corporations. Its powers were the same as those of like mining companies. Under the application, of the general rule, probably no corporation of its character and purpose could hold stock in another. ^Neither, probably, could an industrial corporation, such as it is, have been organized under the statute su/pm with the power in question; for the enumeration therein of the -purposes for which such corporations could be organized concludes with the general provision, “or of carrying on any other branch of business to aid in the industrial or productive interests of the country and the development thereof.” The purposes specifically enumerated in this section would not authorize the creation of a corporation-with the power to hold stock in another corporation. If the maxim noscitur a sociis be held to’ indicate the rule of construction applicable to the general clause, it is doubtful whether a corporation with such power was included. The territorial court impliedly held that this maxim is not applicable. (Carver Mercantile Co. v. Hulme, 7 Mont. 566, 19 Pac. 213.) But however this may be, and though-this section was carried into the Code of 1895 (Civil Code, Sec. 411), the conclusion reached 'upon the question before us is determined by other provisions of the statute indicating the policy of the law towards mining corporations. Section 527 of this Code authorizes mining corporations, organized under the laws of the territory and state of Montana, owning properties in the same vicinity, “to consolidate their capital stock, debts, property, assets and franchises in such manner and upon such terms as may be agreed upon by their board of directors,” when authorized by a two-thirds vote of the stockholders. If such corporations, may consolidate in any manner and upon any terms without restriction, they may proceed by conveying all their property to a corporation organized for that purpose, or by the purchase by one of the companies of stock of the others in whole or in part.
Again,- tbe legislature of 1899 (Sess. Laws 1899, p. 113) enacted a law popularly known as “House Bill 132,” entitled “An Act to enlarge tlie powers of mining corporations to dispose of, sell, lease, mortgage, exchange, or otherwise convey, all or any part of the property,” etc. This Act in terms authorizes such corporations to sell or exchange any part of their property or assets to another corporation, domestic or foreign, for the whole or any part of the capital stock of another corporation, -whether a mining corporation or not. This provision empowers such corporations to hold stock in others, at least of like character, and, necessarily, to vote it; for the unrestricted ownership of property by a person, whether natural or artificial, carries with it the right to its full use and enjoyment for all purposes for which it may be used or enjoyed.
It is therefore not against the public policy of the state for one corporation to hold and vote stock in another of like character. The provisions of the statutes supra are to be construed as amendments to the general laws authorizing the formation of corporations and defining their powers, within the purview of Section 11 of Article XV of the Constitution, supra. The public policy of the state varies from time to time. It is not to be measured by the private convictions or notions of the persons who happen to be exercising judicial functions, but by reference to the enactments of the lawmaking power, and, in the absence of them, to the decisions of the courts. When, however, the legislature has spoken upon a particular subject and within the limits of its constitutional powers, its utterance is the public policy of the state. (United States v. Trans-Missouri Ass’n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007.) .
The Constitution (Article XV, Sec. 15) does not prohibit consolidations. Its prohibition extends only to any device by which an attempt is made to deprive the state courts of jurisdiction. Section 521 of the Civil Code expressly authorizes consolidations of domestic corporations. House Bill 132, supra, impliedly authorizes them, between domestic and foreign corporations, or, at least, goes to the extent of empowering one do mestic corporation to hold stock in another of a similar character.
But counsel for respondent say that these statutory provisions do not apply to the Montana Company, because as to it, at least, having been enacted after its organization, they impair the obligation of the corporation contract, and thus infringe upon the rights of the plaintiff. It may be conceded that, so far as they attempt to increase the powers of that corporation without consent of all of its stockholders, they may be violative of the constitutional prohibition. But this objection does not arise as to corporations formed since their enactment. The holding of stock in a corporation by one person or another does not affect the rights of any other stockholder so long as the purposes of the corporate body are carried out under its charter for the benefit and profit of all the stockholders alike, according to the best judgment of those who have the active management of its business, and so long as the transaction by which the stock was obtained does not violate any provision of the statute or of the constitution. (Trust Co. v. Georgia, 109 Ga. 736, 35 S. E. 323, 48 L. R. A. 520.) Whenever, in the conduct of the business, the purposes of the charter of the Montana Company are ignored and the rights of the minority stockholders are disregarded, the courts of this state have ample power by way of injunction, or a receivership if necessary, to compel it to observe its contract obligations with the state and stockholders, notwithstanding its connection with the Amalgamated Company.
It does not appear from any evidence in the case that the Amalgamated Company, by any act of control over the Montana Company, has affected in any way the rights of the plaintiff as a stockholder. On this branch of the case, therefore, the plaintiff has no cause of complaint.
Inquiry was made of one of the witnesses at the hearing as to the ownership of the shares of stock which are the foundation of this action. The inquiry was made in an attempt to show that the shares, though'standing in the name of the plaintiff, are in fact owned by the Montana Ore Purchasing Company, a rival corporation, and that tbe action cannot, therefore, be maintained by tbe plaintiff. When tbe issue is made, as in this case, as to tbe ownership of tbe subject of tbe controversy, it is competent for tbe defense, if they can, to show that tbe plaintiff is not in fact the owner of it; for tbe statute (Code of Civil Procedure, Sec. 570) declares that tbe action shall be prosecuted by tbe real party in interest. Tbe inquiry should have been permitted. Generally speaking, tbe motives actuating tbe plaintiff do not, as contended by appellants, affect tbe merits of tbe action. One possessing a right may enforce it notwithstanding bis motive may be evil. (Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218.) Tbe motive may not, therefore, be tbe subject of inquiry, except when it may be ground for impeachment.
Tbe order of tbe district court is reversed, and tbe cause is remanded for further proceedings.
Reversed and remanded.
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] |
MR COMMISSIONER CALLAWAY
prepared the opinion for the court.
Appellant brought this action against respondents to recover possession of a strip of ground about one foot in width and 100 feet in length, lying along the southerly edge of his lot, alleging that the respondents have built a stone wall and fence thereon. Respondent J. B. Hennessy interposed two defenses to the action: Eirst, that he is the own'er of the land in controversy, by virtue of his adverse possession thereof for a period of five years prior to July 1, 1895; and, second, that he built the stone wall and fence upon a line agreed upon as a boundary line between himself and appellant in the latter part of the year 1891.
Appellant and respondent J. B. Hennessy are the owners of contiguous lots, the southerly line of appellant’s lot being the northerly line of respondent’s. The lots are portions of the Banker lode, in Silver Bow county, and face upon Montana street, which runs northerly and southerly in the city of Butte. The parties purchased from, the same grantors; respondent’s deed being dated May 31, 1890, and appellant’s October 20, 1890. Shortly after purchasing his lot, appellant erected a house thereon, and a little later respondent built his house.
About November, 1891, respondent, being desirous of dividing his land from that of appellant by a fence, procured the assistance of a surveyor to locate correctly the dividing line. The survey was made by one McDonald, who drove stakes at the east and west ends of the line located. According to the testimony of Mike Hennessy, wbo acted as agent for bis father, J. B. Hennessy, this line was pointed out to appellant, who.in turn showed Mike Hennessy wbat be claimed to be tbe dividing line, it being about three inches farther south than the McDonald line; but appellant said the difference did not matter, and it was then agreed that the McDonald line should be adopted as the boundary, and the fence was built thereon. Appellant denied that he ever agreed upon any line as a boundary, and said that he always protested that respondent was encroaching upon him. The first fence was a tvto-rail fence, which extended from the northeasterly corner of respondent’s lot to a point opposite the northeasterly corner of his house, a distance of about 60 feet. The lots are 100' feet deep. The two-rail fence was replaced in 1896 by a board fence erected upon the same line as; that occupied by the first fence. In December, 1899, respondent commenced to erpct a stone wall in place of the board fence, which was being crushed by the weight which came against it from appellant’s lot. Appellant’s lot is higher than it was originally, while respondent has excavated his, making it lower. Respondent deemed a stone wall necessary to protect his lot, and commenced to erect it. Appellant objected to’ the construction of the wall, saying that the respondent was encroaching upon him, but the latter contended that the wall was being built directly “on the line.”
The stone wall is about sixty feet in length, and upon this is erected a board fence, which, after leaving the wall, continues to the street line on the west. Prior to' the construction of this wall and fence the space between the two' houses was open. This space has been used by appellant as a passageway to and from the rear part of his lot, and wasi of great convenience to him. The distance between the houses is about four feet. Three surveyors have endeavored to locate the true boundary line between these lots, but no two' of them agree. McD'onald surveyed it prior to the construction of each of the three fences mentioned, and all of his surveys agree, according to respondent’s testimony. Respondent contends that at all times since the agreement made in 1891, and until he commenced to build the stone wall, both parties recognized the McDonald line as the boundary, acted on, it, and have made their improvements with reference to it. This appellant denies. Shortly after respondent had completed the stone wall and fence, appellant began this suit, making J. B. TIennessy and Mike Iiennessy defendants. At the trial there was evidence corroborating the contentions of each side. The jury, found for the defendants upon all the issues,, and judgment was entered for them on the verdict. Thereupon appellant moved for a new trial, which was denied. From, the order denying his motion for a new trial, and from the judgment, he prosecutes this appeal.
Several errors are assigned:
Appellant took exception to a number of questions propounded to witnesses, by respondents’ counsel, but upon examination we find no érror in the rulings of the court thereon.
By the instructions given, the court practically took the question of adverse' possession from the jury. Instruction No. 3, complained of by appellant, contributed to this effect. If this was error, appellant certainly cannot complain of it.
3. Appellant contends that'a verbal agreement between coterminous proprietors of land establishing a line between their respective estates, and that such a line shall become a division line, is invalid, as being within the statute of frauds. This depends altogether upon, the circumstances. In Galbraith v. Lunsford, 87 Tenn. 89, 1 L. R. A. 522, 9 S. W. 365, the court said: “If, with full knowledge of the true line, another be fixed by verbal agreement, such agreement is within the statute frauds, and consequently void; but, where there is doubt or ignorance as to the true locality of the line, a parol agreement fixing the line Between adjoining.owners is not within the statute, and, where satisfactorily, established, will be enforced by the courts, notwithstanding it may afterwards be demonstrated that the agreed line was erroneously fixed; and such adjustment may be shown as well by circumstances and- recognition, as by direct evidence of a formal agreement, where parties have acted thereon. Houston’s Heirs v. Matthews, 1 Yerg. 116; Gilchrist v. McGee, 9 Yerg. 458; Merriwether v. Larmon, 3 Sneed, 451; Lewallen v. Overton, 9 Humph. 76 ; Rogers v. White, 1 Sneed, 69; Riggs v. Parker’s Lessee, Meigs, 49 ; Yar-borough v. Abernathy, Id. 420.” And see Idaho Land Co. v. Parsons, 3 Idaho, 450, 31 Pac. 791; Dembitz on. Land Titles, Sec. 8.
“It is well settled that where the owners of contiguous lots by parol agreement mutually establish a dividing line, and thereafter use and occupy their respective tracts according to it for any period of time, such agreement is not within the statute of frauds, and it cannot afterwards be controverted by the parties or their successors in interest. White v. Spreckels, 75 Cal. 610, 17 Pac. 715; Helm v. Wilson, 76 Cal. 485, 18 Pac. 604; Blair v. Smith, 16 Mo. 273; Orr v. Hadley, 36 N. H. 575; Laverty v. Moore, 32 Barb. 347; Houston v. Sneed, 15 Tex. 307. It is the policy of the law te give stability to such an agreement, because it is the most satisfactory way of determining, the true boundary, and tends to prevent litigation. Houston’s Heirs v. Matthews, 1 Yerg. 118; Fisher v. Bennehoff, 121 Ill. 435, 13 N. E. 150.” (Cavanaugh v. Jackson, 91 Cal. 580, 27 Pac. 931.) The above quotations state the law applicable *to this case.
4. Instruction No. 6 is as follows: ’ “The jury are instructed that if you1 find from the evidence, that, at the time the plaintiff anid defendant went into possession of the adjoining lots of land), referred to in the evidence herein, they agreed up [upon] a boundary, line, even though this line was. different from the line shown by the surveyor, and were ignorant of the true survey line, and tbat this line is the one whereon the fence and stone wall are erected, and if you also' find that each party, in making improvements on his premises; acted with reference to said agreed boundary line, and built in accordance therewith,' then and in such event you will find your verdict against the plaintiff and in favor of the defendant. But if the jury find from the evidence that the said stone wall was constructed upon a line agreed upon by the plaintiff and defendant, and a portion, thereof rested upon land belonging to tbe lot of each, and that the board fence constructed by, the defendant upon the stone wall is so situated as to inclose the land; upon which the stone wall rests1, belonging to plaintiff, then the jury should find for the plaintiff to the extent of his land so inclosed by the superstructure or board fence erected on the stone wall.”
In discussing this instruction, we are confronted with the question whether, under our statute, a division fence may stand upon the land of adjoining owners, in the absence of an agreement between- them-. At common law, in the absence of such an agreement, one adjoining owner had no right to build his fence beyond his own land. (Warren v. Sabin, 1 Lans. 19.)
Our Section 1301, Civil C'ode> reads as follows-: “Co-ter-minous owners are mutually bound equally to- maintain: (1) The boundaries and monuments between them. (2) The fences between them, unless one of them chooses to- let his land lie without fencing, in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.”
The words “mutually bound to maintain * * * the fences- between them” necessarily suggest that the burden must rest equally upon each, and this burden includes one-half of the ground upon which the fences shall rest. The section would be clearer if it read, “Oo-terminous owners are mutually bound to erect and maintain.” The word “maintain” ordinarily means to- preserve something which is already in existence, but when we consider that, by the use of the words “unless one of them chooses to let his land lie without fencing,” the statute applies to- lands- not fenced, we readily see that it is comprehensive enough, in the light- of the subject-matter, to include the érection as well as the maintenance of fences. This statute, when'passed, was intended to- apply to conditions where lands were largely unfenced. The phrase “unless one of them chooses to let his land lie without fencing” means that one is not bound to maintain a division fence with his neighbor — he may allow bis land to lie open if be chooses — yet, if be afterward inclose bis own premises, be must then refund to Ms neighbor a just proportion of the value of the division fence “at the time.” The words “at the time” evidently mean at the time be joins his neighbor. The words “division fence,” of course, mean that the fence is to be one dividing the contiguous property. Now, if the co-tenuinous- owners are mutually bound equally to maintain the fences between them:, and the burden should be equally upon each, it necessarily follows that the fence should rest equally upon the land of each. If it were otherwise, A. might build a division fence entirely upon Ms own ground, but directly at- the line. B., his adjoining owner, occupying lands then unfenced, might afterward conclude to fence his land. He could thereupon inclose the three sides theretofore unfenced, build directly to his line, and upi to the fence of A. He thus would have the benefit of A.’s fence, without paying anything, therefor, while the statute provides that he must pay his just proportionate value of the division fence; but, should he be allowed to pay his proportionate share of the value of A.’s superstructure, he would enjoy not only one-half of the fence situated wholly upon the land of A., but also the benefit of a double portion of A.’s ground, while yielding no ground himself. One who purchases land does so contemplating that some one else may inclose the adjoining land. It is therefore manifest that the statute contemplates' that the division fence shall be one-half upon the land of each owner, and that each shall equally contribute his share to the erection and maintenance thereof, as well as the ground upon which it stands.
Chief Justice Shaw, in Newell v. Hill, 2 Metc. (Mass.) 180, thus speaks upon this subject: “In, the first place, it is to be considered that the division fence (i. e., the whole of the division fence) is made for their mutual and equal benefit; an'd' therefore, upon the plainest principles of equity, the expense as well as cost of building, as of land to build upon, must be borne by them equally. * * * If it is to be, in all re spects, for tbeir common benefit and at their common expense, it follows that it is at their equal expense of land, as well as cost of building. As every species of fence must take some land, and cannot stand on a mathematical line, and as there is no reason why it should stand more on the land of one than the other, it follows, as a necessary consequence, that it is to stand equally on the land of both, or one-half on each. It is one of the cases where equality is equity. It is the common case where a burden is toi be borne, a. duty to be performed, or an expense incurred by. two or more persons, and no law imposes a larger proportion on one than the other, it is to be borne equally. It is then asked, if one can take the land of another equally with his own, to build fence upon, how much may he take? What kind of fence may he build? Shall it be a wide wall, a broad canal, or how otherwise ? We think the answer is. obvious, and is attended with no more uncertainty than many other legal rights. It must be a reasonable quantity, and that is to be determined by a just regal'd to the proper accomplishment of the purpose which both parties have in view, and in which they have a common interest. * * * A given quantity of land might well be regarded as reasonable in one ciase which would not be so in the other.” (Pettigrew v. Lancy, 48 Mo. 380; Higgins v. Kingsley, 82 Hun. 150, 31 N. Y. Supp. 100.)
We have examined Chapter XIII, Sections 3250-3259, inclusive, Political Code, amended by Act approved March 16, 1901 (Sess. Laws 1901, p. 139 et seq.), and finfi that such sections, if applicable to this case at all, den not conflict with the views herein expressed.
In the case at bar it .appears that, appellant’s land being considerably higher than respondent’s, it is necessary that some fence of a substantial nature.be erected in order to keep the land of appellant from, encroaching upon that of respondent, and also to prevent undesirable drainage from appellant’s, land upon respondent’s.
It is not contended by appellant that the fence erected is unreasonable for the purpose intenlded. If it is, the burden being upon bim to show it, which he has failed to do, he will not be heard to make any complaint in that respect now.
The court evidently had in mind the correct theory upon the law applicable to agreed boundary lines, and, in the first part of the instruction, properly told the jury that, if the fence and stone wall are erected upon such agreed boundary line, they should find for the defendant. If they are erected “on the boundary line” agreed upon, they a,re properly erected, under the rule above announced.
We must not lose sight of the .fact that the court used the phrase “whereon the fence and stone wall are erected.” The stone 'wall extended in a westerly direction from the northeasterly corner of respondent’s lot but sixty feet. Upon this wall the board fence was erected, and this fence continued in its course westerly to the line of the street. The fence, and not the 'stone wall, is that which divides the space between the two houses, and is that which destroys the passageway, so appellant contends. The board fence, therefore, is the .principal cause of contention. Continuing, the court said, “If the jury -find from the .evidence that the stone wall was constructed upon a line agreed upon by the plaintiff and defendant, and a portion thereof rested upon land belonging to the lot of each,” etc. The court should not have used the. indefinite phrase “a portion thereof,” but-we-cannot see .that any harm resulted from it. If the stone wall was built.upon the line,.a portion of it should rest upon the lot of each.. -Lawfully).-the wall should rest equally upon the lot of each; and. w.e must presume it was lawfully built, in the light of the jury’s verdict. The burden was upon plaintiff to--show; that his land was. encroached upon. He failed to show it to the satisfaction of the jury. The jury evidently found the wall, as well as .the,fence between the houses to be iipon the agreed boundary line. The remainder of the instruction, while not worthy, of .approval, is favorable to plaintiff. The jury were told that if “the hoard fence constructed by the defendant upon.the stone wall is SO' situated as to inclose, the land .upon which the stone .wall rests,, belonging to plaintiff, tben the jury should find for the plaintiff to the extent of his land so. inclosed by. the superstructure or board fence erected on the stone wall.” The jury found that.the fence upon the wall did not inclose any land of plaintiff upon which the wall rested. They impliedly found it to be directly upon the line. — or directly above the line — which' amounts to the same thing — where it should be. It is thus apparent that as the jury found the board fence between the houses, as well as the stone wall, to be upon the agreed boundary line, the instruction did not prejudice the plaintiff.
For the foregoing reasons, we are of the opinion that the judgment and order should be affirmed.
Pee, CubiaM.
For the reasons given in the foregoing opinion, the judgment and order appealed from) are affirmed. .
|
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] |
ME. CHIEF JUSTICE, BRANTLY
delivered the opinion of the court.
Appeal by defendants Parrot Silver & Copper Company, a Montana corporation, and II. A. Gallwey, its general manager, from an order of the district court of Silver Bow county, granting a temporary injunction to restrain said corporation and its officers, and directors from permitting the Amalgamated Copper Company to vote certain shares of stock owned by it in the said Montana corporation, also to restrain the defendants from paying to the Amalgamated Company any dividends on its shares, and from transferring any of those shares upon the books of the corporation.
This cause was submitted at the same time and upon the same facts as was the cause entitled MacGinniss v. B. & M. C. C. & S. M. Co. et al., this day decided. (Ante, p. 428.) Plaintiffs sue as minority shareholders in the Parrot Silver & Copper Company. The questions involved and the relief sought are substantially the same a,s in the other ease. The decision in that case is therefore conclusive of this, and for the reasons stated in the opinion therein, the order appealed from is reversed and the cause is remanded.
Reversed and remanded.
|
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] |
Per Curiam.
The motion 1» dismiss this appeal is hereby sustained, and the appeal is dismissed at the cost of appellant.
|
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] |
MB. CHIEF JUSTICE! BBANT’LY
delivered tbe opinion , of tbe court.
On October 11, 1900, tbe defendant, claiming to be tbe owner of tbe Powbatan quartz lode mining claim, -instituted proceedings for patent tberefor in tbe United States land office at Helena. Tbe plaintiffs, having filed in that office their adverse claim to a portion of tbe ground covered by tbe Powbatan location under a location called tbe “Copper Blossom,” brought this action in pursuance of Section 2326 of tbe Bevised Statutes of tbe United States (U. S. Comp-. St. 1901, p. 1430) to have determined tbe right of possession to- the portion of tbe ground in conofiict.
Tbe original complaint, besides tbe necessary averments as to right of possession in plaintiffs, alleged that tbe adverse claim bad been filed and allowed within sixty days after tbe first publication of tbe notice, and that tbe action bad been com menced within thirty days after the stay granted thereunder. The clerk’s filing mark upon the complaint indicated that it had been filed on the thirty-first day after stay granted. The defendant’s answer put in issue all the allegations of the complaint, and then, after setting forth affirmatively the nature of its claim, demanded judgment that it be declared entitled to the possession of the ground-in conflict. TJpon these affirmative allegations there was issue by replication. The issues were made up> on February 12, 1901. On November 13, 1901, the defendant moved the court to dismiss the action on the ground that it had been brought to determine an adverse claim to a patent, and that, it appearing that it had not been commenced ■within thirty days after the filing of the adverse claim in the land office, the court had no> jurisdiction to proceed to determine it. While this motion was pending, the plaintiffs filed an amended complaint. This pleading it is not necessary to notice further than to‘ remark that it omitted the allegation that the action had been commenced within thirty' days after the filing of the adverse claim. The motion, being’ then submitted on the original and amended complaints, was sustained, and judgment entered for the defendant. The plaintiffs have appealed. The defendant has made no appearance in this court.
It has long been the rule in this jurisdiction that, in order to state a cause of action in an adverse suit under Section 2326 of the United States Devised Statutes (U. S. Comp. St. 1901, p. 1430), it must be alleged that the adverse claim has been filed within time in the proper land office, and that the action has been commenced within thirty days, allowed for that purpose. The rule -was first' declared by the territorial supreme court in Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. 310. It doubtless grew out of the view early entertained by that court that, though the action assumed the character of ejectment or a suit to quiet title, according as the one or the other form of action was appropriate, the ultimate purpose of it was to determine which of the contestants was entitled to a patent, the final judgment in the case being determinative of this question. (Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 308; s. c. on error to the Supreme Court of the United States, 119 U. S. 485, 7 Sup. Ct. 289, 30 L. Ed. 474; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Milligan v. Savery, 6 Mont. 129, 9 Pac. 894.) Whatever be its origin, it has been more than once recognized by this court since the decision in Mattingly v. Lewisohn, supra, as the correct rule. (McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439.) In McKay v. McDougal, after reference to the rule as stated in Mattingly v. Lewisohn, supra, is was said: “As applied to actions of the class to- which Mattingly v. Leiv-isolm belongs, we believe that to be correct, in order that it may appear that the court had jurisdiction to proceed with the case; but such averments of fact have nothing directly to do with the title or right of possession to the property involved, and are not probative facts of the ownership- of the plaintiff.” The use of the word “jurisdiction” in this passage is unfortunate, in that it implies that the jurisdiction in the state courts to try adverse suits is derived from the United States statute. This is not true, because the federal government can neither increase nor diminish the power of state courts to- entertain and determine controversies between citizens of the state. These courts derive their powers from the constitution and statutes enacted in pursuance thereof, and administer them without reference to the duty cast upon the adverse claimant under the federal statute. They may entertain suits under the state statute (Code of Civil Procedure, Sec. 1310) to determine adverse claims, without regard to the fact that proceedings for patent are pending in favor of one of the parties. In the class of actions brought under this section no question touching the right of either of the parties to- a patent from the United States government is involved, and it is only necessary for the complaint- to contain the necessary allegations of title and right of possession in the plaintiff and ouster by the defendant, or the assertion of some claim adverse to the plaintiff. Nevertheless, state courts may, as they have heretofore done, recognize the fact that in the class of cases involving the right to- patent from the United States government the judgments rendered will not be effective unless tbe action is commenced and prosecuted after the necessary steps have been taken by the plaintiff, and within the limitations provided by the federal statute; for, as was said of the rule in Murray v. "Polglase, supra, “It prevents conflict of action between the state court and the officers of the land department, and enables the court to know whether its judgment thus sought, often through tedious and expensive litigation, will, in the end, be effective for any purpose.” In accordance with this idea, doubtless, the legislature enacted Section 1322 of the Code of Civil Procedure, which declares: “In an action brought to determine the respective rights of claimants to the possession of a mining claim or quartz lode, under the provisions of the Acts of congress of the United States, it is immaterial which party is in possession, and it is sufficient to confer jurisdiction upon the court, if it appears from the pleadings that the application for a patent has heen made and an adverse claim thereto filed and allowed in the proper land office; and the verdict or decision must find which party’ is entitled to the possession of the premises in dispute.” This provision clearly implies that in this class of cases it is useless for the court to proceed to judgment, unless it appears that an application for patent has been made, and that an adverse claim has been filed and allowed in the proper land office. It does not, however, change the rule established by the cases cited, but leaves it undisturbed as to the allegation under consideration here. Its presence in,the pleading is necessary to state a cause of'action, but it is not a jurisdictional fact. Its presence leaves the pleading open to general demurrer, and this is the proper method of attack. It was- error, therefore, for the court to sustain the motion on the ground it did.
The filing mark upon a complaint is not part of the pleading, and the court could not, look to it, as it evidently did, in considering the motion, as conclusive evidence that the plaintiffs’ action was without merit. At best, the filing mark - is only prima facie evidence of the actual filing; for a paper is actually filed when it is deposited with the clerk in his office for that purpose, accompanied by the filing- fee. The date of the filing may become an issuable fact, like any other, wbicb must be alleged in order to state a cause of action. It would seem to be a more logical rule to require tbe failure to bring tbe action within the statutory limitation to be set up> as a matter of defense, but the rule as stated has been so long observed in this jurisdiction that we do not now feel justified in changing it.
The judgment is reversed, and the cause is remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Pursuant to the provisions of House Bill No. 203 of the Fifth Legislative Assembly (Laws 1897, p. 203), the city of Great. Falls passed an ordinance imposing a license fee or tax of $3 per quarter upon practicing dentists. Under protest the plaintiff in this action paid to the city of Great Falls the license fee of $3 for practicing his profession as a dentist, and brought this action against the city and the city treasurer to recover the amount so paid. The district court decided in favor of the plaintiff, and the city and city treasurer have appealed from the judgment.
Two contentions are made by counsel for respondent: (1) That House Bill 203 was not passed in the manner prescribed by the Constitution; and (2) in any event the city of Great Falls could not lawfully impose the license fee or tax.
1. Our Constitution (section 24, Article Y) provides: “No bill shall become a law except by a vote of a majority of all the members present in each house, nor unless on its final passage the vote be taken by ayes and noes and the names of those voting be entered on the journal.” In Palatine Ins. Co. v. Northern Pacific Ry. Co., 34 Mont. 268, 85 Pac. 1032, this court held that the legislative journals may be consulted to determine whether the mandate of the Constitution has been observed. An examination of the enrolled bill and the journals discloses that House Bill 203 originated in the House of Representatives, where it was passed on third reading, the vote being taken by ayes and noes, and the names of those voting being entered on the journal. It was then transmitted to the Senate, where it was amended and, as amended, was passed on third reading, and the like record of the vote made. It was then returned to the House, where the amendments were concurred in, but the names of those voting on the amendments were not entered on the journal.- It is now contended that the vote on the Senate amendments was in fact the vote of the House upon the final passage of this bill, and, since it was not taken in the manner prescribed in the Constitution, the bill did not become a law. While this is a new question in this jurisdiction, it is not a new one in this country. Most of the states have similar constitutional provisions, and this question has arisen frequently. In 26 American and English Encyclopedia of Law, 544, it is said: “The final passage of a bill, within the meaning of such a provision, is the vote on which each house adopts the bill after it has passed its first and second readings and after it has been read again for the purpose of being put upon its passage, and where a bill has been passed in one house and amended and passed in the other, it is not necessary that the vote on the adoption of such amendment by the house in which it was first passed shall be taken by yeas and nays and entered on the journal.” The decided weight of authority supports this view. Some of the leading cases are: McCulloch v. State, 11 Ind. 424; Hull v. Miller, 4 Neb. 503; State v. Dillon, 42 Fla. 95, 28 South. 781; O’Hara v. State, 121 Ala. 28, 25 South. 622; Miller v. State, 3 Ohio St. 475; Cantini v. Tillman (C. C.), 54 Fed. 969.
The only cases to which our attention is called, holding that the vote upon the amendments to a bill must be by ayes and noes and the record made of the vote, are Cohn v. Kingsley. 5 Idaho, 416, 49 Pac. 985, 38 L. R. A. 74, and Norman v. Board of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556. Glenn v. Wray, 126 N. C. 730, 36 S. E. 167, and Erwin v. State, 116 Tenn. 71, 93 S. W. 73, present somewhat similar questions. All of these cases, however, have been decided since the adoption of our Constitution, and the Constitutions of those states are materially different from ours; but, if we apply the doctrine announced by the Idaho and Kentucky courts, the result would be to very materially embarrass legislation, for, carried to its logical effect, it would require that the same procedure be taken with an amended bill as with an original one, and the Supreme Court of Idaho recognizes this, for it says: ‘‘A bill which passes the House, and is materially changed by amendment by the other house, and then sent back to the house where it first originated, must go through the same procedure as to reading and final vote as if it was an original bill. ’ ’ Applied here, that rule would require that, when the amended bill is returned to the house in which it originated, it would have to be referred to a committee, returned therefrom, printed for the use of the members, and take the usual course of an original bill. Our Constitution does not require this, and an examination of the legislative journals discloses that it has never been the practice in our legislative procedure, and, while not conclusive, the construction given by the legislature to those provisions of the Constitution dealing with legislative procedure is entitled to great weight. At the time our Constitution was adopted the rule was quite uniform, so far as established by judicial decisions, that in the house originating a bill the vote* on amendments proposed by the other house need not be by ayes and noes, and the names of those voting need not be entered on the journal, and, in the absence of anything indicating a contrary view, we must assume that the framers of our Constitution, in adopting section 24 of Article Y, did so intending that the rule of interpretation then in vogue should be applied to it. Under these circumstances we hold that in passing House Bill 203 the mandate of the Constitution was met, and the bill properly became a law.
2. The second question presented is: Does House Bill 203 authorize the city of Great Falls to impose a license tax upon dentists, or, in other words, can the legislature empower a city to impose such license tax? It is elementary that every license tax is imposed for raising revenue or as a police regulation, or for both purposes.
(a) Section 3, Article XII, of the Constitution, gives to the legislature authority to raise revenue by the imposition of a license tax upon persons and corporations doing business in the state. The provisions of the Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise. (Article III, sec. 29.) In the absence of express words declaring the contrary rule, we must hold that the provision of section 1, Article XII, to which reference is made above, is prohibitory, and, the Constitution having conferred the power upon the legislative assembly, has denied the power to any other body; and, this being so, the legislature could not delegate the authority thus conferred to cities or towns. What we have said, however, applies to the authority to impose a license tax for the purpose of raising revenue only.
(b) But with respect to a license imposed as a police regulation the situation is entirely different. In the absence of constitutional limitation, the legislature, speaking generally, is left free to deal with the subject directly or through the agency of cities or towns, and may properly authorize such cities or towns to impose a license tax upon any industry or upon the right to transact any business which falls within the scope of police regulations. It would scarcely be possible to enumerate all occupations which fall within the sphere of police regulations. We do not know that any court or text-writer has ever attempted to do so. The individual cases are treated as they arise, but in 25 Cyc. 614, a very extended list of occupations which have been held to be subject to police regulations is given. Counsel for respondent cite, and rely upon, Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674, which holds that the city of Sonora cannot impose a license tax upon an attorney at law, for the reason that the business of an attorney is not the proper subject of police regulation; but that case stands practically alone in such holding. The overwhelming weight of authority is to the contrary. For some authorities announcing the general rule, see Tiedeman’s Limitations of Police Power, sec. 87; 25 Cyc. 614; 22 Am. & Eng. Ency. of Law, 932; Prentice on Police Powers, ch. 16; State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 Pac. 110. In fact, in Montana the very statute which this respondent invokes — thd statute regulating the practice of dentistry (Revised Codes, sees. 1573-1584) — is itself a police regulation, and its existence on our statute books cannot possibly be justified upon any other theory. The same is true with respect to the statute regulating the practice of medicine (sections 1585-1593), osteopathy (sections 1594-1606), optometry (sections 1607-1621), pharmacy (sections 1622-1638), the trade of engineer (sections 1648-1659), and statutes applicable to some other trades and professions. It is beyond controversy, then, that the statute does treat these professions and trades as proper subjects of police regulation. The decisions of this court in State ex rel. Board v. District Court, 26 Mont. 121, 66 Pac. 754, holding that the state may properly subject the practice of medicine to its police regulations, is directly applicable here and sets at rest the question raised by counsel for respondent. That the police power may be exercised concurrently by the state and a municipality is a general rule of law recognized almost everywhere. (25 Cyc. 601.)
But it is suggested that the power to license presumes the power to refuse to license, and therewith the power to prohibit the pursuit of the profession altogether; but this does not fol low. In 28 Cyc. 721, it is said: “In the exercise of its authorized police power to that effect, a municipality may regulate an occupation or business which it may not prohibit, and for this purpose it may require a license where it has no power of taxation” — and numerous cases are cited in support of the text.
There is also the suggestion that, since the Constitution, in section 4, Article XII, authorizes the legislature to ’ empower cities and towns to assess and collect taxes, the authority to impose a license tax is at least impliedly denied; but it is sufficient answer to say that Article XII deals with revenue and taxation exclusively, and does not attempt to deal with police regulations, so that it cannot be said that the authority to assess and collect taxes is a prohibition against doing anything else.
It must be held, therefore, that House Bill 203 only authorizes a city to impose a license tax as a police regulation, and the city ordinance of Great Falls in question must be held to impose the license tax for that purpose exclusively.
Our conclusions are (1) That House Bill 203 was properly enacted; and (2) that the city of Great Falls can collect the license tax from the respondent. Under these views the complaint does not state facts sufficient to constitute a cause of action, and will not support a judgment in favor of plaintiff.
The judgment is reversed and the cause is remanded, with directions to dismiss the action and enter judgment in favor of the defendants for costs.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
The complaint in this action, after alleging the corporate character of the Great Northern Railway Company and the Boston and Montana company, and the representative capacity of the plaintiff, reads as follows:
“ (4) That the said defendants William Borden, Daniel Eaton, J. H. Kane, and Charles B. Foster now are, and have at all the times hereinafter set out been, citizens of the state of Montana, and have resided in the city of Butte in said state, and at the time of the injury hereinafter described were servants of the said railway company, and had charge of the engine and caboose that ran over the deceased as hereinafter set out.
“ (5) That on or about the fifth day of February, A. D. 1908, the said defendants, acting jointly, and by their joint act of wanton and willful negligence, did strike, maim, and kill Timothy P. Lynch, the husband of this plaintiff, as follows, to-wit: The said defendant Boston and Montana Consolidated Copper and Silver Mining Company has for a long time prior to the said date, and did on the said date, operate a mine known as the ‘Gambetta Mine,’ and from the said mine the said corporation willfully, wrongfully, and negligently exhausted steam on the track of the said railway corporation, through a certain pipe laid at said place by the said Boston and Montana Consolidated Copper and Silver Mining Company, and thereby did obscure the said track, and made it impossible for the other said defendants to see through the said steam, and thereby did cause the injury hereinabove set out, by making it impossible for any person walking on the said track to see through the said steam, and no person could tell if a locomotive or cars came along while the said steam was obstructing the view of said track, and the said track was thereby made extremely and extraordinarily dangerous for pedestrians on the said track, and extremely dangerous for all persons that used said track who were by virtue of necessity, and as licensees, using said track. That the said exhaustion of steam had continued for at least a year before the fifth day of February, 1908.
“ (6) That at the said place, near the said Gambetta mine, a great many mines are operated, and approximately five hundred men, as a general rule, would, between the hours of 5 and 6 in the afternoon, at which time of the day the injury hereinafter described took place, use the said track as pedestrians for a distance of from two hundred to five hundred feet, or cross at a certain crossing about two hundred feet north of the point where the injury hereinafter described took place. That approximately for ten years previous to the said date the said number of men had, without objections from the said railway company, and by the said railway company’s license, and as a matter of necessity in going and coming to and from their work to mines surrounding the said track, used the said track as a footpath, and had been in the habit of crossing the said track at the-said place, and at different places, where the said injury took place. That by virtue thereof the deceased, Timothy Lynch, was a licensee, and was rightfully on the track.
“(7) That the said railway company knew that their track was used in the manner as aforesaid, or by the exercise of ordinary care would have known that it was so used, and the said mining company well knew, or by the exercise of ordinary care ought to have known, that the said exhaustion of steam made the said track dangerous as aforesaid, under the condition as hereinabove set out, and the defendants William Borden, Daniel Eaton, H. J. Kane, and Charles B. Foster also well knowing the premises; but nevertheless the said defendant railway company, by its said servants, at some time between the hours of 5 and 6 in the afternoon on the fifth day of February, or thereabouts, in the year 1908, without blowing the whistle at the said crossing, and without looking ahead of the engine or caboose, and in great disregard of human life, attached a certain caboose in front of an engine, and ran from the north over the said crossing of a certain public highway, at the rate of twenty miles an hour, and by their gross negligence and wanton disregard of human life did kill Timothy P. Lynch, the husband of this plaintiff, while the said Timothy P. Lynch was acting with due care on his part, by running over the said Timothy P. Lynch by having their said caboose attached in front of the said engine, while the said engine was running at the rate of twenty miles an hour.
“(8) That the said railway company and its servants, well knowing the negligence of the said mining company by exhausting its steam, and well knowing it would be impossible for a person to get off of its track while in the said steam, did not ring the bell and did not blow the whistle a distance of from fifty to eighty rods from the said crossing.
“(9) That the said railway company and its servants, as it came to the said place where the said view was obstructed, expected that some human being would be run over by the said defendant railway company; and its servants, by reason of the fact as aforesaid, to-wit, that miners were always on the track at said time and at said place, in utter disregard of human life, going at a dangerous rate of speed, then and there did run over the said deceased Timothy Lynch, and maimed and killed him as aforesaid.
“(10) That it was the duty of the said defendant railway company, and the duty of its said servants, to refrain from wantonly killing any human being on its track; and, in order to observe said duty, it would be necessary to ring the bell or blow the whistle, as hereinbefore set out, and also to blow its whistle or ring its bell in approaching said steam, and not to put a caboose in front of its engine, and thereby obstruct its own view, and not to go at an excessive rate of speed at a place where human beings were constantly known to be crossing or walking on the said track, and when human beings were expected to be. That it was the duty of the said mining company not to so construct and maintain its plant that dense volumes of steam would obstruct the view on the said track, and thereby prevent pedestrians, licensees, and employees and the said railway company and its servants from seeing each other and thereby prevent injury.
“ (11) That the place where the said Timothy P. Lynch was killed was in the suburbs of the city of Butte, known as Meaderville, in the county of Silver Bow, state of Montana. ’ ’
Both corporation defendants filed separately general demurrers to the complaint, which were sustained; and, the plaintiff refusing to plead over, judgment was entered against her, and she appeals therefrom.
On account of the peculiar phraseology of the pleading we have devoted much time to an examination and analysis of this complaint, and necessarily so because the contentions of the respective parties involve questions of law of so great importance to litigants and the legal profession that the court is not satisfied to apply any of them on a foundation of mere conjecture as to the meaning of the complaint. The contention of the appellant appears to be that she is entitled to rely on what has come to be known in the law as the doctrine of the “last clear chance,” applied to a ease where the defendant should have known of the deceased’s peril. Another contention is that a railroad company is bound to use reasonable care to prevent injury to persons who, for a long period of time, without objection from the company, have used the right of way as a convenient path or place of crossing, even though such persons are technically trespassers. Another contention seems to be that the company owed to deceased the duty to give the proper signals of warning before passing over a public highway crossing. The learned judge who sustained the demurrers said in his order that he did so on the authority of Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831. Appellant contends, in the brief of her counsel, that this case is distinguishable from the Egan Case, for the reason that her complaint alleges that the defendant knew her husband was in a place of peril, although he could not be seen. On the other hand, the respondent railway company claims that the case is squarely within the rule of the Egan Case, and should be affirmed on that authority, unless the court is prepared to overrule or modify that case.
The briefs are voluminous and exhaustive, and show great research of authority; and a decent respect for the counsel engaged, and their efforts to assist the court in arriving at a proper conclusion, bearing in mind also the importance of the case to the plaintiff, impels us to state our views with greater elaboration of detail than would otherwise appear to be necessary or desirable under the circumstances. It is first necessary to ascertain, if possible, from the complaint where Lynch was killed, because the location of that place is determinative of the question whether the defendants owed him any duty in the place where he was, and, if so, what duty. If we can determine where Lynch was located at the time he was struck and killed, we may then apply the proper rule of law to the conduct of the two defendants under the circumstances, and inform the plaintiff whether or not she may recover damages from one or both of them, provided, of course, that she is able to prove the allegations of her complaint. If we cannot decide where Lynch was located, it would be idle to attempt to apply any rule of law at all.
It is alleged, in paragraph 5 of the complaint, that the mining company, on February 5, 1908, operated the Gambetta mine, and from the said mine exhausted steam on the track of the railway company through a pipe laid at “said place.” This allegation locates the place only to the extent that it was on the track of the railway. Paragraph 6 sets forth that, ‘ ‘ at the said place, near the said Gambetta mine, a great many mines are operated, and approximately five hundred men, as a general rule, would, between the hours of 5 and 6 in the afternoon, at which time of the day the injury hereinafter described took place, use the said track as pedestrians for a distance of from two hundred to five hundred feet, or cross at a certain crossing about two hundred feet north of the point where the injury took place.” We cannot determine from this allegation where the five hundred men were in the habit of crossing, whether at the road crossing, or at a point several hundred feet away, or whether some of them crossed at one place, and some at another, or whether they used first one place and then the other. Nor is the matter made any clearer by the subsequent allegation that the men “used the said track as a footpath, and had been in the habit of crossing the said track at the said place, and at different places where the saAd injury took place.” We cannot tell from this allegation where the injury took place, or where the track was enveloped, in steam, or whether the men simply crossed the track at a certain place, or at several places, or walked along the track laterally. Nor is there any allegation that Lynch was one of the men who were accustomed to use the track, or that he was with the men who were so using the track. There is no allegation here, or in any other- part of the complaint, so far as we can discover, that Lynch was in the steam, or on the track at some place other than the public crossing.
Paragraph 6 appears to be an attempt to lay a foundation for the conclusion that Lynch was a licensee, and, viewed in that light, those allegations relating to the highway crossing become immaterial, because, if Lynch was on the highway crossing, he was in a place where he had a right to be. In view of the allegation that the steam was so dense that Lynch could not be •seen in any event, the allegation that the caboose was ahead of the locomotive appears to be immaterial. Paragraph 7 alleges that the “defendant railway company, * * * without blowing the whistle at the said crossing, and without looking ahead of the engine or caboose, and in great disregard of human life, attached a certain caboose in front of an engine, and ran from the north over the said crossing of a certain public highway, at the rate of twenty miles an hour, and by their gross negligence and wanton disregard of human life did kill Timothy P. Lynch, while the said Lynch was acting with due care on his part, by running over the said Lynch, by having their said caboose attached in front of the said engine, while the engine was running at the rate of twenty miles an hour. ’ ’ Then follows paragraph 8, as foIIoavs : ‘ ‘ That the said railway company and its servants, Avell knowing the negligence of the said mining company by exhausting its steam, and well knowing it would be impossible for a person to get off of its track while in the said steam, did not ring the bell and did not blow the whistle a distance of from fifty to eighty rods from the said crossing.”
It will be observed that while the foregoing paragraphs do not expressly aver that Lynch was on the crossing, they do so by implication, and if the contention were made that the complaint states a cause of action for negligent killing at a public highway crossing, we should feel obliged to give it serious consideration. But no such contention is advanced, and it would be manifestly unjust to the plaintiff for this court to force upon her a cause of action to which she makes no claim, and which she could, probably, not prove. And the allegation that Lynch was a licensee seems to negative the idea that he was on the crossing. But our embarrassment is not thereby removed, because plaintiff’s counsel contend in their brief that it was the duty of the railway company’s servants to sound the whistle and ring the bell at the crossing. If Lynch was not on the crossing when struck, the neglect to give signals of warning at the crossing two hundred feet away was not a breach of any duty the company owed him in the place where he was. (Toomey v. Southern Pacific Ry. Co., 86 Cal. 374, 24 Pac. 1074, 10 L. R. A. 139; Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195-200; Elwood v. New York etc. R. R. Co., 4 Hun (N. Y.), 808; Thompson on Negligence, sec. 1707.) But, despite the position of counsel, it seems to us that the most definite allegations in the complaint, if we may be allowed the expression, have a greater tendency to locate Lynch at the crossing than elsewhere. But, again, this position seems untenable because of the allegation in paragraph 6 that the crossing therein referred to was two hundred feet north of the point where the injury took place. Paragraph 9 of the complaint speaks for itself, and we, therefore, refrain from comment upon it. Paragraph 10 is an allegation of duty on the part of the railway. One averment is that "it was the duty of the railway company to refrain from wantonly killing any human being on its track, and in order to observe said duty, it would be necessary * * * to blow its whistle or ring its bell in approaching said steam.” There is no allegation that the company did not observe this duty, or that Lynch was in a place where an observance of the duty would have enabled him to avoid the injury.
We find no causal connection between any of the acts complained of and the result to Lynch, and are unable to determine what was the proximate cause of his death. Not only that, but if we may assume, which we may not, that Lynch was killed while in the steam, he appears to have voluntarily gone into a place of known danger, and the allegation that he acted with due care does not relieve the plaintiff, when she assumes to state all the surrounding facts and circumstances, from the necessity of also showing the exact place of the accident, to the end that the court may judge whether or not his negligence contributed to the result. On the face of the complaint the deceased appears to have been guilty of gross negligence, and whether or not such negligence on his part was a proximate cause of his death depends primarily upon the location of the place where he was at the time; and the accountability of the defendants also depends upon that, because, if they owed him any duty at all, the nature of sucb duty would vary, dependent upon the place of the accident.
Rehearing denied April 24, 1909.
The judgment appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action in claim and delivery. The complaint was filed on June 13, 1904. It is in the usual form, alleging that the plaintiff is the owner and entitled to the possession of a certain stock of goods, wares and merchandise, describing it, and of a certain promissory note for $455, all of said property being alleged to be of the value of $2,500, and that, though possession was demanded of defendants prior to the bringing of this action, it is wrongfully detained by them, to plaintiff’s damage in the sum of $500.
The answer denies generally and specially all the allegations of the complaint, except that the defendants refused to deliver the possession to plaintiff. It then proceeds to allege, by way of special defense, as follows:
“ (1) That at all times herein mentioned, H. J. Gielens, C. W. Cooper, Jr., and Louis Kaufman were transacting business in the county of Silver Bow, under the firm name and style of Louis Kaufman and Louis Kaufman & Co.
“(2) That the said H. J. Gielens, C. W. Cooper, Jr., and Louis Kaufman, as such copartnership, on or about the-day of February, 1904, entered into a contract in writing with Sig. Gensberger, of Silver Bow county, Mont., whereby the said co-partnership sold to the said Gensberger a stock of goods situated at No. 41 West Park street, in the city of Butte, Silver Bow county, Mont.
“ (3) That thereafter, to-wit, on or about the sixteenth day of March, 1904, with the full knowledge and consent, and with the approval of the said copartnership, the said Sig. Gensberger transferred the said contract of purchase to these answering defendants, and that thereupon these answering defendants went into possession of the said stock of goods, and since the said date have largely increased the amount of goods at said stand, and have built up a large and profitable mercantile trade, and that all of the purchase price of the said stock of goods has been paid, and was paid prior to the commencement of this action, excepting the snm of $2,500.
“(4) That the stock of goods at the said stand is worth the snm of $10,000, and the good will of the said business, and the trade built up and established by these answering defendants, is worth in excess of $10,000.
“ (5) That the above-named Louis Kaufman, purporting to act for and on behalf of the said partnership, on or about the fourth day of June, 1904, and purporting to act in pursuance of the terms of the said written contract above referred to, served a notice upon these answering defendants to the effect that they should have twenty days from the date of said service, to-wit, up to and including the twenty-fourth day of June, 1904, within which to pay the balance due upon the purchase price of the said stock of goods, to-wit, the sum of $2,500.
“ (6) That notwithstanding the said notice, and notwithstanding the terms of the said contract, and notwithstanding the fact of the largely increased value of the stock of goods situated at said stand, and the large and valuable trade established by these answering defendants at said place of business, and in violation of the said contract, the said Louis Kaufman, still purporting to act on behalf of the said partnership, on the thirteenth day of June, 1904, commenced this action, and ousted and ejected these answering defendants from the possession of their said business and property.”
Other matters were also alleged, not material, however, to be considered on this appeal. The answer was filed on June 14. Subsequently, a supplemental answer was filed, in which it is alleged that since the filing of the original answer the sheriff, who had taken the goods from the possession of the defendants, had delivered them to plaintiff, except the promissory note mentioned, which the sheriff did not take, and that the defendants claim a return of all and every part thereof, or its value in case a return cannot be had, and damages.
The replication puts in issue the value of the stock; also the fact, alleged in the answer, that it had in any manner been in creased in value by additions made by tbe defendants. It also denies that the copartnership alleged in the answer had any interest in the property whatsoever, and alleges that the plaintiff was, and now is, the owner and entitled to the possession of the same. It admits that the plaintiff served the notice referred to in paragraph 5 of the defendants’ affirmative defense, but denies that Louis Kaufman acted for or on behalf of the copartnership.
The jury found generally for the defendants; that the plaintiff had taken all the property from their possession at the time of commencing the action, except the promissory note, and that a return could not be had; that on June 13, 1904, the date at which it was taken, it was of the value of $5,000, and that the defendants were entitled to recover that amount, with interest from that date. Judgment was entered accordingly. Plaintiff appealed from the judgment and an order denying his motion for a new trial.
1. The defendants moved for a dismissal of the appeals and submitted the motion at the hearing on the merits. One of the grounds of the motion to dismiss the appeal from the judgment is that it was taken more than one year after the date of the entry of judgment. The judgment was entered on February 15,1907. The notice of appeal was served and filed on February 28, 1908. The right of appeal from the judgment had been lost by lapse of time. (Revised Codes, sec. 7099.) This appeal is therefore dismissed. The ground of the motion, in so far as it is directed at the appeal from the order, is that plaintiff attempted to appeal both from the judgment and the order, and that the undertaking filed does not support the two appeals, or either of them, because it does not contain the necessary alternative condition referring to each. The form of it is the same as that held sufficient in Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, and Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129, and upon the authority of these cases the motion to dismiss the appeal from the order is denied. The undertaking is sufficient to sustain both appeals, if both had been properly taken. It is therefore sufficient to sustain the latter, though the former must be dismissed because not taken in time.
2. The contention made by counsel in their brief on the merits questions the propriety of certain rulings of the court in admitting evidence and the sufficiency of t'he evidence to justify the verdict. The written contract referred to in the pleadings, having been identified for the plaintiff, was introduced in evidence, and is as follows:
“AGREEMENT.
“I, Louis Kaufman, hereby agree to sell to Sig. Gensberger, all of the stock of goods, merchandise, book accounts, bills receivable, fixtures, furniture, leases and contracts purchased by the said Louis Kaufman from the Palais Royal Company on the 16th day of February, 1904, and the bankrupt stock of S. M. Wilson, situated at No. 33 West Park street, Butte, Montana, for and in consideration of the sum of fifty seven hundred dollars, and interest thereon from the date of this agreement, until paid, at the rate of ten per cent per annum, to be paid to the said Louis Kaufman by the said Sig. Gensberger, in the following manner, to-wit: The sum of three hundred dollars to be paid upon the execution and delivery of this agreement, and the balance of said amount to be paid as hereinafter specified.
“I hereby agree to employ the said Sig. Gensberger to manage the business for me, at' a salary of one hundred ($100) dollars per month, under my supervision, or the supervision of my agent to be hereafter designated for that purpose; that the said Sig. Gensberger shall deliver to me or my agent on each and every day, all moneys received by the sale of merchandise made on the said day, or the day before; when I have received out of the receipts for merchandise now on hand or from any source from said business, the sum of fifty-four hundred dollars, and interest as hereinabove provided, over and above all expenses, I agree to sell and convey the good will of the business, the merchandise, fixtures, furniture, leases, contracts, and book accounts belonging thereto, to the said Sig. Gensberger, and deliver the same to him, it being understood and agreed that until such time as I shall be fully paid, I shall remain the owner of said business and merchandise, and the same shall be managed for me by the said Sig. Gensberger, without further cost or expense to me, except as hereinbefore stated, provided that if at any time I shall be dissatisfied with his management of said business, I shall have the right to terminate the same upon twenty days’ notice in writing to him, and the said Sig. Gensberger shall not be entitled to a bill of sale or to any interest in said goods or business unless he shall within said twenty days pay me whatever balance there may be due me, time being the essence of this agreement. It is expressly agreed that in no event shall this option and contract be valid and binding for more than six months.
‘ ‘ The said Sig. Gensberger shall not as my manager or otherwise order or purchase any additional goods or merchandise without my knowledge or express consent, or the direction of my agent to be hereafter designated, and in case any such goods or merchandise are ordered with my consent, or that of my agent, or put in stock in said business, they must also be paid for in addition to my realizing the total sum of fifty-seven hundred dollars and interest, before I shall be under any obligation to transfer or sell the said business, goods, contracts or property to the said Sig. Gensberger.
“The drawing of this agreement as well as all legal advice, court costs, or costs of lawsuits, had or that may be had in connection with the said Palais Royal Company’s business, and any advice that may be had in the future in reference thereto, or to this agreement, or the right of the parties hereto, shall be considered as a part of the business expense.
“All moneys paid out herein as expense must be for proper and reasonable purposes, such as insurance, rent, wages, advice and necessary expenses in conducting said business, and shall be reasonable in amount, and shall be paid by me or my agent, out of the proceeds of sales made in the said business. An account of such expenses shall be kept as well as an account of all merchandise purchased, and the sales thereof, and shall be open to the inspection of both parties to this agreement, during the said period of six months.
“It is further agreed and understood that the said Sig. Gensberger shall not have the right to put in stock, or sell any goods belonging to himself, and that there shall be no goods sold in said business except such as were purchased from the said Palais Eoyal Company’s sale, and said bankrupt stock of said S. M. Wilson, to said Louis Kaufman, and such as may be hereafter purchased with the consent of said Louis Kaufman or his agent, to be hereafter designated, unless special consent in writing be given therefor by me or my said agent.
“The said Sig. Gensberger shall not as agent or manager for the said Louis Kaufman, have any authority to incur any indebtedness or obligation without his consent, or the consent of his said agent, and shall immediately upon receipt of any moneys- arising from the sale of goods or merchandise, or to become due on account of said business, deliver the same to him, or his said agent, and in consideration of the foregoing, the said Sig. Gensberger does agree to pay to said Louis Kaufman, the total sum of fifty-seven hundred dollars, and interest, above specified, and does hereby accept the provisions and conditions of the foregoing agreement.
‘ ‘ The said Sig. Gensberger does hereby agree to act as manager for the said Louis Kaufman under the provisions herein and to exercise his best endeavors to realize from the said sale of said goods and merchandise, for the said Louis Kaufman, the additional sum of fifty-four hundred dollars and interest as provided, over and above all expenses making a total of fifty-seven hundred dollars and interest. In witness whereof,” etc.
Other evidence introduced on the part of plaintiff tended to show that at the date of the contract he was the sole owner of the stock of goods; that finding that Gensberger was not disposing of it as rapidly as he desired, he opened negotiations with the defendants with the purpose of inducing them to assume Gensberger’s obligations under the contract, they to have the benefit of all the payments out of receipts of sales made by him np to that time; that the result of these negotiations was that they agreed to assume Gensberger’s place; that' thereafter plaintiff obtained from Gensberger an assignment of the contract to himself, refunding to him the cash payment made by him; that no written assignment of the contract was made to the defendants, but that they from and after March 16, the time at which the arrangement with them was completed, took possession as plaintiff’s agents, and proceeded under the contract, making sales and delivering the daily receipts to the brother of plaintiff, to be deposited to the credit of the latter; that this course was pursued from March 16 until June 7, when the defendants ceased to account for the receipts from sales; that thereafter, upon demand by plaintiff of such accounting, or, in lieu thereof, that the defendants relinquish the goods to him, he was ejected from the place of business by the defendants, and thereupon he began this action. On eross-examination he was required to answer, over his objection, as to payments made to him- or his agent by Gensberger of receipts of daily sales, and as to the amount still due of the purchase price agreed to be paid for the goods. He was, over like objection, required to answer, also as to cash payments made to him by the defendants on March 17 and on April 21, amounting to $2,500, the purpose of the inquiry being to obtain an admission from him that, when the arrangement was made with the defendants, the Gensberger contract had been modified in one particular, to-wit, that in consideration of the payment of $3,000 in cash by the defendants, they were vested with title to the stock, and became debtors to the plaintiff for the balance of the purchase price. He stated that it had been agreed that they would add other goods to the stock, and that cash to the amount of $3,000 was necessary for that purpose; that the amount paid, he having subsequently consented to accept $2,500 instead of $3,000, was intended for that purpose alone, and had been expended by him in purchasing such other goods; that these were added to the stock under the provisions of the Gensberger contract, and. that the contract had not been modified in any particular. The ground of the objection to tbe inquiry touching the Gensberger payments was that the evidence was immaterial, because it was admitted in the answer that there was still due under the contract the sum of $2,500, and it was of no moment what payment's Gensberger had made. The objection to the inquiry as to the cash payments made by the defendants was, that the evidence sought was not relevant to the issues made by the answer. In other words, since the defendants had pleaded the Gensberger contract, and admitted that full payment had not been made thereunder, they must stand upon its provisions.
The evidence on the part of the defendants tended to show that, at the time the arrangement was entered into by the parties, the Gensberger contract had been modified to the extent that title to the stock of goods passed to the defendants upon payment of $2,500; that they were not to receive any salaries for their services in selling the goods, and that they became simply debtors to the plaintiff for the balance due after being given credit for this sum, together with the deposits which had been made by Gensberger, the exact amount of which the record does not show. Objection was made to all' of this evidence, the ground of objection being the same as that above stated.
During the course of the trial the defendants requested leave to amend their answer by eliminating from it all reference to the Gensberger contract. This request was denied, the court being of the opinion that the matter specially pleaded did not present a material issue, and that the defendants were not precluded by it from introducing evidence tending to show a modification of the contract by which they purchased outright.
The evidence touching payments made by Gensberger was not material or relevant to any issue in the case, yet we think it apparent that the plaintiff suffered no prejudice from the court’s, ruling. In reply to the inquiries made, plaintiff denied that any payments had been made other than the cash payment of $300, which had been returned. Elsewhere he was questioned as to the amounts deposited which were derived from daily sales,, but failed to give a definite answer, though he impliedly admitted that deposits to some amount had been made.
The principal contention of counsel in this court, based upon their objections to evidence, challenges generally the correctness of the theory upon which the court proceeded. We are of the opinion that the contention is without merit. In statutory actions, often called replevin, to recover the possession of personal property, wherein the plaintiff relies on general allegations of ownership and right to possession, a general denial puts in issue both the right of property and the right of possession, as well as all other material allegations in the complaint, and under it the defendant may give in evidence any special matters which will defeat the plaintiff’s claim. (Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. 961; Phillips on Code Pleading, sec. 492; Cobbey on Replevin, sec. 751.) He is permitted to controvert the plaintiff’s evidence; to disprove his allegations; to prove other and inconsistent facts; to prove his own right to possession; to show title in a third party; or to show that he has seized the property as an officer, under process against one from whom the plaintiff obtained it in fraud of creditors. Such being the rule, the court was correct in permitting the defendants to abandon the so-called special defense and proceed under their general denial. In view of the denials, which amount to a general denial, it was not necessary to plead the special defense, and it might have been stricken from the answer without impairing its sufficiency. This was, in effect, what the court did when the ruling was made that the defendants were not precluded by it from introducing proof of their title and right to possession under the general denial.
3. It would serve no useful purpose to state in detail or analyze the evidence in order to demonstrate the conclusion that it is sufficient to sustain the verdict, both as to the ownership of the property and its value. It is in irreconcilable conflict on almost every point, so much so that, if it had been submitted to this court in the first instance, a finding upon it would have been attended with much difficulty. No complaint is made that it was not fairly submitted to the jury under the instructions given by the court. It presented a question for the jury. Under the rule so often stated, this court is bound to accept the finding of the jury thereon, and the judgment of the district court on review of it on the motion for a new trial, even though it might not have agreed with either the court or jury in their finding thereon.
[98 Pac. 1135.]
Briefs — Assignments of Error — Failure to Argue — Rehearing.
1. Where counsel for appellant failed in their brief to argue assignments of error based upon the refusal of the court to give certain instructions, and merely stated therein that under the pleadings and facts in evidence they should have been given, thus leaving it to the supreme court to determine for itself from such examination wherein the trial court erred in refusing them, a petition for rehearing on the ground that in its decision the appellate court overlooked such assignments of error has no merit.
4. The defendants contend that a finding for the plaintiff could not have been sustained in any event, because the Gensberger contract, construed according' to its obvious meaning, gave them the right to retain possession of the stock until the expiration of twenty days from the date of notice to them by the plaintiff that he elected to terminate it, this time being allowed them to make final payment of any balance of the purchase price due at the date of notice. This being so, it is said that this action was prematurely brought, and hence that, though the defendants ought to have been compelled to rely upon the contract as pleaded, their right to possession at the commencement of the action was perfect. Since the order must be affirmed for the reasons stated above, we deem it unnecessary to discuss this feature of the case.
The order is affirmed.
Affirmed.
Mr. 'Justice Holloway and Mr. Justice Smith concur.
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] |
JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The Respondent, Carla Eggebrecht, filed a petition for modification of the Mark K. Eggebrecht Irrevocable Trust in the District Court for the Thirteenth Judicial District in Yellowstone County. Carla sought to modify specific provisions of the trust in order to allow a corporate trustee to be appointed as the sole trustee upon her resignation as a joint trustee. The Appellants, Pauline and Howard Eggebrecht, joint trustee and trust advisor for the trust, respectively, opposed the modifications proposed by Carla. The District Court granted the petition for modification of the trust in order to allow Norwest Trust to be appointed as the corporate successor trustee for the trust. Pauline and Howard appeal the District Court’s judgment. We affirm the judgment of the District Court.
¶2 The sole issue presented on appeal is whether the District Court erred when it granted the petition to modify the trust.
FACTUAL BACKGROUND
¶3 In March 1988, Mark K. Eggebrecht died and was survived by his wife, Carla, and their two young daughters, Alyssa and Terry. Mark was also survived by his parents, Howard and Pauline Eggebrecht. Carla was appointed the personal representative of Mark’s intestate estate. However, shortly after Mark’s death, Howard and Pauline sought to have a will, executed ten years prior to Mark’s marriage to Carla, admitted to probate. The will left everything to Mark’s brother and sisters and purported to disinherit any future spouse. Howard and Pauline additionally filed several creditor’s claims against the estate.
¶4 Following extensive litigation, Carla, Howard, and Pauline agreed on a stipulation and settlement which was adopted by the District Court on September 4,1992. As part of the settlement the parties agreed, among other things, to create a trust, known as the Mark K. Eggebrecht Irrevocable Trust. The beneficiaries of the trust were Mark’s daughters, Alyssa and Terry. Carla and Pauline were named as joint trustees, and Carla, Pauline, and Howard were appointed as trust advisors.
¶5 The purposes of the trust, as set forth in the trust itself, are the following:
(a) to secure to the children [Alyssa and Terry] the benefit of the investment-management services of the Trustee;
(b) to provide for the children the financial security and standard of living of the children lost, by the death of Mark. K. Eggebrecht, said financial security to include, but is not limited to, providing sufficient funds for post-secondary, graduate and professional education, and to further and fulfill the obligations and privileges of parental support of Mark K. Eggebrecht for food, shelter, medical needs, and personal development.
¶6 The Trust provides for the following powers of the trust advisors: D. Each Trust Advisor shall have the authority to direct the Trustee with respect to subject matters where acting pursuant to individual authority, or where acting in unanimity with other Trust Advisors who have authority with respect to the same subject matter. The Trustee shall comply with such Trust Advisor’s direction ....
The trust provides the following duties for Howard in his role as trust advisor:
A. E. Howard Eggebrecht of Billings, Montana, shall serve as Trust Advisor with respect to the Trust’s mineral rights and Wendy’s and Taco Bell properties during his lifetime.... For all trust assets with respect to which he is Trust Advisor, E. Howard Eggebrecht shall retain the power to control, manage, lease, and operate such assets, in combination with other interests held by him or members of the Eggebrecht family.
The Trust also provides the following powers for Carla and Pauline, as trust advisors: “[Pauline Eggebrecht and Carla Eggebrecht] shall be Trust Advisor[s] with respect to investments (except mineral rights, Taco Bell and Wendy’s properties), and change of corporate trustee.”
¶7 The trust additionally sets forth the duties of Carla and Pauline as the joint trustees:
Carla J. Eggebrecht and M. Pauline Eggebrecht (hereinafter “Joint Trustee(s)”) shall be the Trustee of the Mark Eggebrecht Irrevocable Trust, and shall exercise all powers of the Trustee jointly. All instruments required to be executed by the Trustee shall be executed jointly. Neither Joint Trustee shall have the power to act for the Trust without the express written consent of the other.
The joint Trustees shall use their best good faith efforts to arrive at mutually acceptable agreements regarding trust affairs, including disagreements over matters of substance, and shall communicate with one another regarding trust decisions at least annually.
¶8 The trust also contemplated the resignation of a joint trustee:
Each joint Trustee shall have the right to resign as joint Trustee. In the event of resignation, or in the event either joint Trustee named herein dies, declines, ceases, or is otherwise unable to serve as Trustee, the successor Corporate Trustee named herein shall become the sole Trustee of the Trust.
¶9 Currently, the trust corpus includes bonds, mineral interests, and a one-eighth interest in two commercial real estate parcels in Billings, Montana, known as the Wendy’s and Taco Bell properties. Originally, the Eggebrecht family farm was held by the trust in order to allow completion of a CRP contract. However, pursuant to an option agreement which was part of the original stipulation and settlement, following completion of the CRP contract, the farm was transferred to Howard and Pauline in exchange for the one-eighth interest in the Taco Bell and Wendy’s properties.
¶10 Following the creation of the trust in 1993, there were no requests by Carla for any distributions from the trust until 1996. In 1996, Alyssa experienced some emotional and medical problems and was treated at a special school for girls in Utah. On January 8,1996, Carla wrote a letter to Pauline and requested a distribution from the trust in order to cover three-months’ tuition for Alyssa:
My health insurance will cover through this January of 1996. I have one month of health account funds to cover February tuition. I am working on VA benefits to see if I can get coverage through their provision for residential treatment. I would like to be able to have a distribution from the trust to cover her stay at Cross Creek Manor from March through May. I am asking you to please consider allowing this distribution for Alyssa. She has truly benefitted from this program and has finally found some joy in being who she is.
¶11 Pauline wrote the following response on February 16,1996:
As you can plainly see, we cannot get into situations like this. We have little money and many years to take care of her financial needs. We have to be very careful as to how we use this money or we will find ourselves without any means to take care of these needs. This would be very poor judgement on our part and very careless in distributing her money.... As you may conclude, I will not agree to taking this money out of the trust.
¶12 Subsequently, Carla wrote Pauline requesting a distribution from the trust for specific items for the girls, including dental care, chiropractic services, driver’s education training, car insurance and SAT test preparation. Pauline denied this request as well, with the following response:
As for her [Alyssa’s] other requests, drivers training, $315.00, dental $274.13, insurance on the car, $730.90 and SAT, $240.00, these are common expenses incurred by all families .... The expenses for Terry, $315.00 for drivers training and $615.00 for Chiropractic services are also expenses incurred by a family. You will from time to time have a balance owing on a medical bill.
¶13 Following the denial of all of her requested distributions from the trust, Carla’s attorney at that time, Gilbert Burdett, contacted TrustCorp, the named corporate successor trustee in the trust document, to determine whether it would accept appointment as trustee. TrustCorp responded by letter stating that it would only serve as trustee if certain modifications were made to the trust, including the elimination of the trust advisor roles.
¶14 Carla’s present attorney, Timothy Fils, then contacted Norwest Investment Management to determine whether Norwest would serve as the corporate trustee. Fils received a response similar to TrustCorp’s, which stated that Norwest would only serve as the cor porate trustee if certain modifications were made to the trust, including elimination of the trust advisor role.
¶15 On April 14,1998, Carla filed a petition to modify the trust, in which she stated her intention to resign as a joint trustee. Carla attached a modified version of the trust and asserted that the requested modifications were necessary conditions to substitution of a corporate trustee. Additionally, Carla asserted that the cotrustees, Carla and Pauline, were not able to efficiently manage the trust due to conflict between them.
¶16 Alyssa reached the age of majority several weeks after Carla filed the petition for modification, and at that time Alyssa joined in Carla’s petition for'modification. Additionally, the District Court appointed Damon Gannet to act as Terry’s guardian ad litem in these proceedings.
¶17 Following a hearing on August 6,1998, to consider the petition for modification, the District Court entered its findings of fact, conclusions of law, and judgment authorizing all of the requested modifications to the trust. The District Court additionally awarded attorney’s fees to Carla and to Damon Gannett, the guardian ad litem appointed to represent Terry. Howard and Pauline now appeal the judgment of the District Court.
STANDARD OF REVIEW
¶18 We review a district court’s findings of fact to determine whether they are clearly erroneous. See In re Estate of Bolinger 1998 MT 303, ¶ 29, 292 Mont. 97, ¶ 29, 971 P.2d 767, ¶ 29. We review a district court’s conclusions of law to determine whether its interpretation is correct. In re Estate of Bolinger, ¶ 29.
DISCUSSION
¶19 Did the District Court err when it granted the Petition to Modify the Trust?
¶20 The Appellants, Pauline and Howard, assert that the District Court erred when it granted the petition for modification because the trust was the result of a formal stipulation and written settlement which is binding on all the parties and, therefore, precluded modification of the trust. Additionally, Pauline and Howard contend that the District Court erred because Carla’s statement of her intent to resign as joint trustee did not legally justify appointment of a successor trustee.
¶21 In response, Carla asserts that the District Court was correct when it concluded that the modification of the trust was governed by Montana trust law, and not the law governing settlement modification. Additionally, Carla contends that the District Court properly granted the petition for modification based on her expressed intent to resign, and that her resignation prior to the filing of the petition was unnecessary and would have required that she leave Pauline as the sole trustee because no corporate trustee would accept such an appointment without the proposed modifications.
¶22 With respect to Pauline and Howard’s first argument, the District Court concluded that, although the trust was part of a binding stipulation and settlement agreement, the trust itself was governed by Montana trust law, including 72-33-101, et seq., MCA, known as the Montana Trust Code. The District Court concluded the following:
Montana law provides that beneficiaries of an irrevocable trust may compel modification of the trust, unless the court finds that modification would frustrate a material purpose of the trust and the reasons for modification are outweighed by such material purpose.
¶23 ' Section 72-33-406, MCA, states, in relevant part:
(1) Except as provided in subsection (2), if all beneficiaries of an irrevocable trust consent, they may compel modification or termination of the trust upon petition to the court.
(2) If the continuance of the trust is necessary to carry out a material purpose of the trust, the trust cannot be modified or terminated unless the court, in its discretion, determines that the reason for doing so under the circumstances outweighs the interest in accomplishing a material purpose of the trust.
¶24 In its findings of fact, the District Court found the following:
It was stipulated by the parties that Alyssa Eggebrecht would have testified that she consents to the changes to the Trust in order to allow Norwest to assume the duties of successor trustee. Damon Gannett, Esquire, was appointed by this Court to represent the interests of Terry Eggebrecht, a minor. Mr. Gannett has, on Terry Eggebrecht’s behalf, consented to the changes to the Trust in order for Norwest to assume the duties of successor trustee.
¶25 The District Court further found and concluded:
Pauline Eggebrecht and Howard Eggebrecht assert that since the Trust was created as part of a global settlement of the Mark Eggebrecht Estate litigation, protection of Pauline Eggebrecht’s and Howard Eggebrecht’s positions as trust advisors is a material purpose. While protection of such positions may be deserving of some protection, this Court finds that protection of these positions is not a material purpose.
Even if protection of the trust advisor positions were considered to be a material purpose, the Court finds that there is an equally important purpose-namely, the ability of a co-trustee to resign and have a corporate trustee assume the duties of successor trustee. Since these two purposes are irreconcilable, this Court cannot conclude that it is necessary to deny the request of the beneficiaries to compel modification based on the elevation of one of these two purposes over the other.
¶26 This District Court’s findings are supported by substantial evidence and are not challenged on appeal. The express purpose of the trust is to provide for the maintenance and support of Alyssa and Terry, the beneficiaries. To the extent that the trust advisor positions held by Pauline, Howard, and Carla, are a material purpose of the trust, so is the right of a joint trustee to resign and have a corporate trustee assume the role as sole trustee. In this case, because these two purposes are irreconcilable, the District Court properly exercised its discretion when it decided that the reasons for modifying the trust to allow a corporate trustee to be appointed as the sole trustee, outweigh the material purpose of having a trust advisor position.
¶27 The record reveals, and the District Court’s findings of fact reflect, the difficulties that Carla and Pauline, the joint trustees, had experienced in communicating and agreeing on any distributions of the trust. We conclude from the District Court’s findings that the true material purpose of the trust was to benefit Alyssa and Terry by giving them support and maintenance following the loss of their father. This purpose was frustrated as a result of the joint trustees’ inability to work together, and the beneficiaries believed that the solution to this problem was to have a corporate trustee administer the trust. In order to do so, the District Court properly modified the trust, eliminating the trust advisor position, and appointing Norwest to act as the sole trustee.
¶28 With respect to Pauline and Howard’s second argument, regarding Carla’s resignation, § 72-33-616, MCA, provides, in relevant part, as follows:
(1) A trustee who has accepted the trust may resign only by one of the following methods:
(a) as provided in the trust instrument....
The trust explicitly provides that a joint trustee may resign, and that a corporate successor trustee will be appointed as the sole trustee. In this case, Carla had given notice other intent to resign following the District Court’s resolution of whether or not the trust could be modified in order to allow a corporate successor trustee to be appointed as contemplated by the trust.
¶29 Contrary to Pauline and Howard’s assertion, there was no requirement that Carla resign prior to the District Court decision to allow the requested modifications. Rather, the sole purpose of this proceeding was to modify the trust so that a corporate trustee could then be appointed to better serve the purposes for which the trust exists. ¶30 Accordingly, we conclude that the District Court did not err when it granted the petition for modification. Therefore, we affirm the judgment of the District Court.
JUSTICES REGNIER, GRAY, LEAPHART and HUNT concur.
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] |
JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The Appellant, William Prescott Putman, brought this action against the estate of his mother, Gertrude E. Prescott, in the District Court for the Eighteenth Judicial District in Gallatin County. Putman sought to invalidate Prescott’s will on the basis that she either lacked testamentary capacity at the time she executed her will or that Putman was an omitted child pursuant to § 72-2-332(3), MCA. The District Court awarded summary judgment to the Personal Representative, Sherman Veltkamp, and Museum of the Rockies, the residuary devisee. Putman appeals the District Court’s award of summary judgment. We affirm the judgment of the District Court.
¶2 The following issues are raised on appeal:
¶3 1. Did the District Court err when it concluded that Putman had offered no evidence that he had been excluded from his mother’s will because she believed he was dead?
¶4 2. Did the District Court err when it concluded that Putman had offered no credible evidence that Prescott lacked testamentary capacity when she executed her will on April 1,1985?
FACTUAL BACKGROUND
¶5 Gertrude E. Prescott, known as “Scotty” to her friends, was born in Massachusetts on July 25,1923. She attended high school in Wisconsin and graduated in 1941. On May 25,1944, Prescott enlisted in the Women’s Army Corps. She was honorably discharged on October 19,1945. At that time she received a 30 percent service-related disability rating due to an anxiety disorder caused during her service. She retained her disability impairment rating for the remainder of her life.
¶6 On June 7,1946, Prescott married Howard Putman, and they moved first to North Dakota and then to Montana. On November 13, 1949, she gave birth to her only child, William Prescott Putman. Following Putman’s birth, Prescott attended Montana State College. In 1952, Howard became ill and moved to California with Putman. Prescott remained in Montana where she continued her classes at Montana State College and subsequently graduated with an Honors Degree in Agriculture in 1953.
¶7 At some point during her years at MSU, Prescott learned that Howard had previously been married and that the dissolution of that marriage had not been completed at the time she married him. In 1954, Prescott filed for and was granted an annulment of her marriage to Howard. Following the annulment, Putman remained with his father in California.
¶8 Prescott remained in contact with Howard and Putman for a short period of time following the annulment. Two letters written by her were received by Howard in 1954. One letter asked Howard to “please give my love and remembrance to Little Bill” and the other letter closed with “a big hug for Bill.” Following the letters received in 1954, there is no evidence of any other contact among Prescott, Howard and Putman. Putman has no independent recollection of his mother nor did Putman ever attempt to contact his mother during the remaining 42 years of her life.
¶9 Following her graduation from Montana State College, Prescott moved to a ranch near White Sulphur Springs, Montana. She lived alone in a small cabin with no electricity and no running water. She lived a simple life and supported herself with income received from the ranch for nearly 30 years.
¶10 In 1962, Prescott received a letter from Charles Linley, her lawyer at the time, in which Linley mentioned that he had been informed that she had ¿ son. However, there is no indication of the source for Linley’s information or whether he had ever discussed Putman with his mother.
¶11 In the early 1960s Prescott donated various items to the Montana State College and the McGill Museum (now known as the Museum of the Rockies). These items included 500 pieces of furniture, household items, glass, porcelain, copper and pewter ware, as well as trunks and boxes of miscellaneous items. In August 1964, she wrote a letter to Leon Johnson, then President of Montana State College, describing her future intentions:
I look forward to the time when most of its [her ranch’s] earnings will go to help Montana State College, the McGill Museum and the Endowment and Research Foundation. It is to this end that my every effort and plan is directed.
¶12 Prescott suffered a stroke in 1981 that resulted in the partial paralysis of her right side. Following her stroke, she spent several months in hospitals and rehabilitation centers. In 1983, she suffered an acute appendicitis and during the surgery she went into cardiac arrest, which left the doctors unable to successfully complete the surgery. The antibiotics prescribed to minimize the possibility of infection caused renal failure. As a result of her health problems, Prescott sold her ranch in 1983.
¶13 In 1984, Prescott moved into the Hillcrest Eetirement Center in Bozeman, Montana. She later moved to the Churchill Eetirement Home in Amsterdam, Montana, but after a short time, she moved into her own apartment in Bozeman where she lived until her death in 1996.
¶14 In 1984, Prescott agreed to the appointment of Sherman Veltkamp, as her conservator. He had previously advised her regarding her taxes and investments. According to Veltkamp, he suggested to Jim Moore, Prescott’s attorney, that she execute a power of attorney to allow someone the authority to assist her in her investment and money management decisions. In response, Moore suggested that a conservatorship would be a better alternative, and Prescott consented.
¶15 According to Veltkamp, Prescott handled her own finances and wrote her own checks to pay her bills. Veltkamp limited his role to reviewing Prescott’s bank statements for unusual expenditures and ensuring that she paid her bills regularly.
¶16 On April 1,1985, at the age of 61, Prescott executed her will which had been drafted by her attorney, Jim Moore. Moore and Prescott had met initially when she was studying agriculture at Montana State College. They became reacquainted following her purchase of her ranch. Moore was also involved in the ranching community in central Montana. Following Prescott’s move to Bozeman in 1984, she and Moore resumed their friendship. Moore testified that when he assisted Prescott with her will he followed his standard procedure. He drafted a will based on conversations with her during which they discussed how she wanted to dispose of her estate. He then met with her to explain the provisions of the will and to verify that the will would dispose of her estate in the manner she intended. Moore testified that he “would not have allowed her [Prescott] to sign the will” if he had doubted her testamentary capacity.
¶17 Prescott’s will included a specific bequest of the profits from the sale of her ranch to the Montana State University Endowment and Alumni Foundation and left the remainder of her estate to the Museum of the Eockies. Her conservator, Veltkamp, was named as her personal representative. Prescott’s will makes no mention of her son
Putman, nor of any other family member. Although Moore has no recollection of any discussion with her about her son, his chronologically ordered file contained an undated note made between his December 1985 and January 1986 entries, which stated the following:
Scotty was married to a man named Putman. Marriage annulled in Gt. Falls in 1948 or 1949. Had a son named William Prescott Putman. Taught at Ferdig and Sunburst during marriage. Married four years.
¶18 In 1991, Prescott asked Moore to make certain revisions to her 1985 will. None of the requested changes affected the substantive portions of the will. They were stylistic changes, which included the addition of the statement that “the line of succession for this branch of the Prescott family ends with me.” Moore drafted a revised will in accordance with Prescott’s requests, however, she did not execute the revised will.
¶19 Prescott died on November 1,1996, at the age of 73, at the Veteran’s Administration Medical Center in Fort Harrison. Following her death, Moore published her obituary in several local newspapers. Moore received a call from Boyd Iverson, a former neighbor and friend of Prescott’s who advised Moore that she had a son. Moore and Veltkamp found Putman living in California and advised him of the proceedings of his mother’s estate. Prescott’s will was admitted to probate in formal proceedings commenced by Veltkamp on December 2,1996.
¶20 On July 17, 1997, Putman filed a Petition for Allowance of Claim in which he requested his intestate share of Prescott’s estate as either an omitted child pursuant to § 72-2-332(3), MCA, or as an intestate heir because the will was void due to her lack of testamentary capacity. The residuary devisee, Museum of the Rockies, intervened in this matter on January 13,1998. On December 15,1998, Veltkamp and the Museum of the Rockies filed motions for summary judgment. On July 13,1999, the District Court granted their motions. Putman appeals from the District Court’s order granting summary judgment.
STANDARD OF REVIEW
¶21 Our standard of review on appeal from summary judgment orders is de novo. See Motarie v. Northern Montana Joint Refuse Disposal District (1995), 274 Mont. 239,242,907 P.2d 154,156. We review a district court’s summary judgment to determine whether it was correctly decided pursuant to Rule 56, M.R.Civ.P., which provides that summary judgment is only appropriate where there is no genuine is sue of material fact, and the moving party is entitled to judgment as a matter of law. See Motarie, 274 Mont, at 242, 907 P.2d at 156.
¶22 The fact that a nonmoving party interprets facts differently from the moving party does not preclude summary judgment. See Scanlon v. National Assoc, of Ins. Comm’rs (1994), 265 Mont. 184,189, 875 P.2d 340,343. Additionally, mere conclusory or speculative statements will not preclude summary judgment. See Richland Nat’l Bank & Trust v. Swenson (1991), 249 Mont. 410,418,816 P.2d 1045,1050. ¶23 The contestant of a will bears the burden of proof. See § 72-3-3Estate of Lien (1995), 270 Mont. 295,300,892 P.2d 530,532.
DISCUSSION
ISSUE 1
¶24 Did the District Court err when it concluded that Putman had offered no evidence that he had been excluded from his mother’s will because she believed he was dead?
¶25 Putman asserts that pursuant to § 72-2-332(3), MCA, he is entitled to share in his mother’s estate because she excluded him from her will solely because she mistakenly believed he was dead. Putman contends that the record includes evidence that Prescott believed she was the last of the Prescott line at the time she executed her will, and that evidence creates a material question of fact about whether she had a mistaken belief that her son was dead at the time she executed her will.
¶26 In response, Veltkamp and.the Museum contend that there is no evidence that Prescott actually believed that Putman was dead or that such a belief was the reason she did not provide for him in the will. They point out that the evidence reveals several friends and acquaintances of Prescott knew of the existence of her son and that Putman has failed to produce any evidence that her friends acquired the information from any source but her. The Personal Representative and the Museum also note that Putman acknowledged in his summary judgment brief that “there is no indication whether Prescott believed her child, William, to be dead ...” Further, they point out that whether or not she believed him to be dead in 1985 it had been her intention to leave her estate to the college and museum since 1964. Therefore, whatever her belief, it was not the reason for her disposition of her estate.
¶27 Section 72-2-332(3), MCA, entitled “Omitted children,” provides the'following:
If at the time of execution of the will the testator fails to provide in the testator’s will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.
Pursuant to this statute, Putman must prove two elements: (1) that Prescott believed he was dead at the time she executed her will, and (2) that Prescott omitted him from the will solely because she believed he was dead.
¶28 Putman fails to present any evidence that Prescott actually believed he was dead. To the contrary, the note found in the file of her attorney, Moore, believed to have been made after the execution of her will, reveals that Prescott had a son. Boyd Iverson, her neighbor and friend, knew that she had a son. The Museum found a letter in its files dated in 1984 in which the author, Dr. Merrill Burlingame, an employee of the Museum, informed the Museum that “we first knew her [Prescott] as Mrs. Putman, with a husband and small child.” Finally, the statements made by Prescott in which she declared that she was the end of the Prescott line, were not made until six years after the execution of her will and are consistent with the manner in which she, and Putman lived their lives. They had no contact over a span of 42 years.
¶29 Moreover, Putman did not produce any evidence to satisfy the second element of § 72-2-332(3), MCA, that he was omitted from Prescott’s will solely because she believed he was dead. The record is replete with uncontroverted proof that the disposition of Prescott’s estate to the MSU Endowment Fund and the Museum is consistent with the intention she stated as early as 1964 and her long history of philanthropy toward the college and the Museum, and is also consistent with the fact that she had no relationship with Putman.
¶30 Accordingly, we conclude that Putman has failed to present substantial evidence that Prescott omitted him from her will solely because of a mistaken belief that he was dead at the time she executed her will. Therefore, we conclude that the District Court did not err when it dismissed Putman’s claim which was based on § 72-2-332(3), MCA, by summary judgment.
ISSUE 2
¶31 Did the District Court err when it concluded that Putman had offered no credible evidence that Prescott lacked testamentary capacity when she executed her will on April 1,1985?
¶32 Putman asserts that at the time she executed her will, Prescott lacked the requisite testamentary capacity due to long-term mental illness and, therefore, her will should be declared invalid. Putman contends that Prescott’s history of mental illness, beginning with her 30 percent disability rating and her continuing diagnoses of mental illness throughout her life, in combination with her physical problems experienced in the early 1980s, including her stroke, cardiac arrest and renal failure, established that she lacked the necessary testamentary capacity to execute her will.
¶33 In response, Veltkamp and the Museum assert that whether Prescott suffered from mental illness during random periods of her life is irrelevant because the issue is limited to whether she had testamentary capacity on the date she executed the will. Veltkamp and the Museum contend that summary judgment was appropriate because the only witnesses with direct knowledge testified that she was competent and Putman’s expert witness concedes that he can only speculate about her testamentary capacity on the date she executed her will. Additionally, Veltkamp and the Museum assert that the appointment of a conservatorship for Prescott does not establish testamentary incapacity.
¶34 The test for determining testamentary capacity was set forth in In the Matter of the Estate ofBodin (1965), 144 Mont. 555, 560, 398 P.2d 616, 619, as follows:
[A] testator is competent if he is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of his property and his relations to persons having claims on his bounty whose interests are affected by his will.... The “testator must have sufficient strength and clearness of mind and memory to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and the nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them.”
(Citations omitted.) Therefore, testamentary capacity requires that the testator be aware of three elements: (1) the nature of the act to be performed, (2) the nature and extent of the property to be disposed of, and (3) the objects of his or her bounty.,
¶35 Testamentary capacity is determined as of the date the will was executed, April 1,1985 in this case, using the above test from Estate of Bodin, which is now well-established in Montana. See In the Matter of the Estate of Jocherás (1992), 252 Mont. 24, 29, 826 P.2d 534, 537.
A. Nature of the Act to he Performed
¶36 The first element required to show testamentary capacity is that the testator was aware of the nature of the act of making her will. Prescott’s attorney, Moore, testified in his deposition that she understood that she was making a will on April 1,1985:
Q. Did you determine that she understood the nature of the act in executing her last will and testament dated April 1,1985?
A. I am confident she knew what she was doing.
¶37 Prescott’s conservator and personal representative, Veltkamp, also testified in his deposition regarding her competency at the time she executed her will:
Q. You were aware that she was considering executing a Will in 1985?
A. No, I was not aware of that until after it was done, or perhaps a phone call from Jim Moore that it was being done.
Q. All right. Did you have any concerns as to her competency at that time?
A. No.
¶38 No evidence was presented from any other person directly familiar with her mental condition on the date she executed her will. Putman’s expert, Dr. Frank Seitz, conceded that the only element of testamentary capacity that he believed to be lacking was Prescott’s knowledge of who her heirs were:
Q. Okay. Now, if Prescott knew who her heirs were, would she otherwise have testamentary capacity in your view?
A. Yes.
¶39 Therefore, we conclude that Putman has failed to present any evidence that Prescott was not aware that she was executing a will.
B. Nature and Extent of the Property to be Disposed
¶40 The second element of testamentary capacity is that the testator was aware of the nature and extent of the property to be disposed of in her will. Prescott’s attorney, Moore, testified in his deposition as follows:
Q. Okay. Did you determine whether she had sufficient strength and clearness of mind and memory to know the nature and extent of her property when she executed her will in April 1 of 1985?
A. I would not have allowed her to sign the will if I didn’t think so. ¶41 In his deposition testimony, Putman’s expert, Dr. Seitz, again conceded that Prescott understood the nature and extent of her property:
I really didn’t see any evidence in the medical records and so on where she’s having some pathological problems related to understanding what she owned. She may have some difficulties managing and needs some help there, but she did have rather detailed lists, as far as property and how to have Sherman [Veltkamp] manage it....
¶42 Therefore, we conclude that Putman has failed to present any evidence that Prescott did not know the nature and extent of her property that was disposed of by her will.
C. Objects of Her Bounty
¶43 The third element of testamentary capacity is that the testator was aware of the objects of her bounty. This is the primary basis for Putman’s challenge to Prescott’s competency and is in turn based largely on her statement to her attorney, Moore, six years after execution of the will, that “no one follows me in this line of Prescott.”
¶44 Putman’s expert, Dr. Seitz, testified as follows:
Q. When do you say she couldn’t make a will?
A. I would have been concerned about her making a will certainly around the time of the stroke and thereafter.
Q. The stroke being in 1981?
A. 1981.
Q. So anytime after 1981, you would have been concerned about her testamentary capacity?
A. That’s right. Now, I do have to point out that she ebbed and flowed in these abilities. It’s not like she was 24 hours a day, seven days a week, unable to make some of these decisions, but what I am saying is that her cognitive abilities were impaired.
Q. So it was possible, in your view, after the stroke in 1981 on a particular day, that she could have known who her heirs were?
A. There’s a possibility of that.
¶45 The problem with Seitz’s testimony is that the object of her bounty when she executed her will in 1985 was the same she had indicated it would be in her letter to Leon Johnson nearly 21 years earlier, before the stroke which he felt incapacitated her. Prescott was a graduate of the Montana State College, had donated and contributed to both institutions in the past, and had expressed her future intent to donate the proceeds from the sale of her ranch to the foundation in her 1964 letter to the president of the college 21 years prior to the execution of her will which specifically devised the proceeds from the sale of her ranch to the foundation. On the other hand, she had no contact of any kind with Putman after 1954, nor did Putman attempt to establish contact with her at any time during the remaining 42 years of her life.
¶46 Therefore, we conclude that Putman has failed to present any credible evidence that Prescott was unaware of the objects of her bounty.
¶47 Additionally, we note that in Estate of West (1994), 269 Mont. 83, 95,887 P.2d 222,229, we stated that “the mere fact that a conservator has been appointed does not mean that the protected person lacks the capacity to make a will.” Therefore, the fact that Prescott had agreed to the appointment of a conservator, has no bearing on the issue of her testamentary capacity.
¶48 Accordingly, we conclude that the undisputed facts prove that Prescott possessed the requisite testamentary capacity on April 1,1985, the day she executed her will. Therefore, we conclude that the District Court did not err when it dismissed Putman’s challenge to the will on the basis that Prescott lacked testamentary capacity.
¶49 For these reasons, we affirm the judgment of the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, LEAPHART and REGNIER concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 In this appeal by Virgil and Louise Bates (the Bates) and the Ruby Mountain Trust (the Trust), we are asked to decide whether the District Court of the First Judicial District, Lewis and Clark County, correctly affirmed the decision of the State Tax Appeal Board (STAB) finding that the Trust did not qualify for treatment as a trust for tax purposes. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The facts of this case are not in dispute. The Bates owned a 500-plus-acre family farm in Manhattan, Montana, that they transferred along with various buildings, livestock, and personal property to the Trust upon its creation on December 29,1992. The Trust was created and structured according to a trust establishment “kit” that the Bates had previously purchased for $2,400 after attending a “financial planning” seminar in Billings.
¶3 Upon transfer of the Bates’ property, the Trust issued 100 certificates of beneficial interest to the Bates and their three children. The Bates received a two percent interest in the Trust, while the remaining ninety-eight percent interest was given to their children. The named “beneficiaries” of the Trust are the Bates’ children. The trustees are Gary and Joyce Thompson, neighbors of the Bates, and Val Bentley, who resides outside of Montana. The Bates themselves are characterized as “co-managers” of the Trust.
¶4 Though the Trust is captioned “irrevocable,” the trustees may terminate the Trust at any time provided that all of the holders of the units of beneficial interest agree. The Trust contains no distribution clause, however. Virgil testified that the certificates of beneficial interest proportionally represent, for purposes of distribution “[wjhatever the property’s worth.” If the Trust were terminated, the corpus presumably would be distributed on a pro-rata basis according to the certificates of beneficial interest issued to the Bates and their children.
¶5 Following its creation, the Trust hired Virgil in the position of “caretaker.” Under the terms of the caretaker’s agreement, the Trust pays him $20 an hour for his farming and management services. Additionally, the Bates are authorized as co-managers of the Trust to write checks against the Trust’s account up to $5,000 (excepting general trust operating expenses) without prior approval of the trustees. The Bates have also entered into a lease and rental agreement with the Trust, under which they lease farming equipment to the Trust and pay rent for continuing to reside in the farmhouse on the property. Further, the Trust has been paying the Bates’ debt obligations with respect to the farm.
¶6 Much of the Bates’ farm property that was transferred into the Trust was surveyed and subdivided into twenty-two plots of twenty-one acres each, leaving about sixty acres of undeveloped farmland. The Bates hired an independent appraiser to value the property, who calculated that with the addition of various improvements making the lots suitable for residential sale, the land transferred to the Trust had a fair market value of $1,420,000. The improved and developed lots were prepared for sale, advertised for sale, and ultimately sold by the Bates. The sales of these subdivided and developed parcels have generated income in excess of $1 million for the Trust.
¶7 The Bates did not pay a gift tax when they put the farm in trust. They claimed that since the transfer was in exchange for units of beneficial interest, it was not a gift. Nor did the Bates pay any self-employment taxes. Furthermore, when the Bates transferred the land into the Trust, they adopted the fair market value of the subdi vided land as its basis. Of the total proceeds the Trust received for sale of the developed parcels, the Bates claimed that only $5,000 per beneficiary had been distributed while the remainder of the proceeds had been reinvested in the corpus of the Trust by means of improvements thereto. The Bates thus asserted that income from the sales of the lots was not taxable until such time as the proceeds were actually paid over to the beneficiaries.
¶8 In 1996, in conjunction with a nationwide investigation by the Internal Revenue Service (IRS) to identify legally questionable trust arrangements, the DOR undertook an audit of the Trust. Two primary income-generating activities were determined by the DOR to fall within the Trust: (1) farming and (2) the subdivision/selling of land. Specifically, the DOR identified a number of concerns in connection with the land-development activities of the Trust, including, among others, the issuance of certificates of beneficial interest to the Bates in exchange for the land, the degree of control retained by the Bates over the corpus of the Trust, and the Bates’ transfer of the property into the Trust at a “stepped-up” basis (i.e., the Bates’ fair market value appraisal conducted after the subdivision improvements).
¶9 In particular, the DOR took issue with the Bates’ claim of fair market value basis, asserting that the Bates were attempting to impermissibly avoid capital gains and other taxes by valuing the land transferred to the Trust at a stepped-up basis when it should have been valued at the Bates’ carry-over “book value” (i.e., the historical cost of the farmland to the Bates prior to the value-added subdivision improvements). Ultimately, the DOR issued an audit assessment to the Bates regarding the Trust for the tax years 1993 and 1994, disallowing the Trust for tax purposes and imputing any “business income” and expenses derived from the Trust to the Bates’ individual tax returns.
¶10 The Bates and the Trust appealed the DOR’s assessment in a timely manner. In April of 1997, a hearing was held before a DOR Administrative Hearing Examiner. The Bates argued that the Trust was not void for Montana tax purposes, and that the Bates should not be held personally liable for capital gains or other taxes on the income generated by the sale of the subdivision lots. The hearing examiner issued his decision on June 11,1997, finding the Trust and the property transfer to the Trust void, and holding the Bates hable as individuals for the income and expenses associated with the sale of the developed parcels.
¶11 The Bates and the Trust then filed an objection to the hearing examiner’s decision, and the DOR’s Director reviewed the matter on briefs. A Final Agency Decision was issued on April 20,1998, affirming the hearing examiner’s findings of fact, conclusions of law, and order. The Bates and the Trust timely appealed to STAB. Another hearing was held, and STAB issued its decision on November 19,1998, again voiding the Trust for tax purposes and making the Bates individually liable for taxes on the income generated from the sale of their land. Subsequently, the Bates and the Trust separately filed petitions for judicial review, which were consolidated in the stipulated venue of the District Court. The court issued its decision affirming STAB on June 9, 1999. The Bates and the Trust appeal.
DISCUSSION
¶12 Did the District Court correctly affirm STAB’s decision that the Trust was legally invalid and that the Bates therefore personally owe Montana taxes?
¶13 We review STAB’s decision in the same manner as the District Court. See § 2-4-704, MCA. Since the material facts of this case are not in dispute, the only disagreement between the parties is the legal question of the validity of the Trust. In reviewing questions of law, we simply ascertain whether the agency’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
¶14 The parties do not dispute that upon its creation, the Trust issued certificates of beneficial interest (also referred to as “units of beneficial interest” or “UBIs”) to the Bates and their children in exchange for the land and assets the Bates transferred to the Trust. Rather, the parties disagree as to the effect that the issuance of UBIs has on the validity of the Trust for tax purposes. The parties agree, however, that resolution of the trust-creation issue will resolve the tax issue. Thus, if the Trust is legally invalid, the Bates individually owe Montana capital gains and other taxes for the disputed tax years 1993 and 1994.
¶15 The Bates contend that they have complied with all legal formalities and that the Trust, being “personal” and “irrevocable” in nature, is a legitimate estate-planning vehicle which should be respected for tax purposes. Particularly, they assert that the Trust is not a legally invalid “business trust” simply because it operates a legitimate business endeavor while minimizing tax and personal liability. The DOR counters that there are several factors making the Trust an “abusive trust” under Montana and federal law. As such a “sham” entity, the DOR argues that the Trust should be disregarded for tax purposes and that any income derived from trust activities should be imputed to the individual tax returns of the Bates. We agree. Under the following analysis, we hold that the Trust does not qualify for treatment as a trust under Montana and federal law, and, therefore, that the Bates are personally liable for Montana taxes for the years in question.
¶16 The crux of this case is the application of § 72-33-108(4), MCA, which defines what constitutes a legitimate “trust” under Montana law. In pertinent part, the statutory definition provides that a trust does not include “business trusts providing for certificates to be issued to beneficiaries ...” Section 72-33-108(4), MCA (emphasis added). As the DOR principally contends, the issuance of certificates of beneficial interest or UBIs by the Trust is analogous to the issuance of stocks or shares by a corporation, thus taking such a “business trust” out from under the provisions of Title 72 of the Montana Code applicable to ordinary trusts. See also § 35-5-101, MCA (defining a “business trust” under Title 35 of the Montana Code applicable to corporations, partnerships, and associations).
¶17 The Bates cite legislative history applicable to § 72-33-108(4), MCA, arguing that the exclusionary definition of a “business trust” is meant to apply only to “big business” and not a “family irrevocable trust.” However, we agree with the DOR that the legislative history cited by the Bates, though not particularly illuminating, supports the rather straightforward proposition that an entity with objective indi-cia of a business organization (i.e., a partnership or corporation) is not to be regarded as a trust under Montana law.
¶18 Similarly, federal law refuses to recognize the validity of a business trust for tax purposes. In contrast to an ordinary trust, business trusts
are not simply arrangements to protect or conserve the property for the beneficiaries. These trusts ... generally are created by the beneficiaries simply as a device to carry on a profit-making business which normally would have been carried on through business organizations that are classified as corporations or partnerships under the Internal Revenue Code.
26 C.F.R. § 301.7701-4(b).
¶19 As the DOR indicates, federal law considers a business trust to be an “abusive trust.” The IRS recently issued Notice 97-24, warning state and federal agencies and taxpayers of the existence and promotion of certain types of “abusive trust arrangements” that allege to reduce or eliminate federal taxes. According to the Notice, these trust arrangements are abusive of the law and are not to be recognized as ordinary trusts. They are abusive in that they promise “tax benefits with no meaningful change in the taxpayer’s control over or benefit from the taxpayer’s income or assets.” Such an abusive trust arrangement often promises, inter alia, “reduction or elimination of income subject to tax;... a stepped-up basis for property transferred to the trust; the reduction or elimination of self-employment taxes; and the reduction or elimination of gift and estate taxes.”
¶20 One example of an abusive trust is a business trust, which is described in the Notice as an arrangement where, as here, property (usually a business) is transferred to the trust in exchange for units or certificates of beneficial interest. See, e.g., Markosian v. Commissioner of Internal Revenue (T.C. 1980), 73 T.C. 1235, 1980 WL 4562 (dentistry practice). Payments to holders of the UBIs, often characterized as “deductible distributions,” are claimed to largely reduce or eliminate the taxable income of the business trust. Additionally, there is claimed to be little or no income from self-employment on the theory that the taxpayer allegedly receives little to no income from the trustees’ management of the business property.
¶21 In Morrissey v. Commissioner of Internal Revenue (1935), 296 U.S. 344, 56 S.Ct. 289,80 L.Ed. 263, the United States Supreme Court set forth the distinguishing characteristics of a business association or trust, as opposed to an ordinary trust. Analogous to this case, a considerable portion of the trust property at issue in Morrissey had been surveyed and subdivided into lots, and various residential improvements were made to the subdivided property to facilitate sales of the lots. See Morrissey, 296 U.S. at 360-61, 56 S.Ct. at 296, 80 L.Ed. at 272.
¶22 Morrissey instructs that this Court must look to the substance of the trust arrangement, not its form, in determining whether the entity constitutes an impermissible business trust or a legitimate ordinary trust. Thus, “the absence of particular [corporate] forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Morrissey, 296 U.S. at 358, 56 S.Ct. at 295, 80 L.Ed. at 271. Rather, we look to whether the economic realities of the trust arrangement indicate that it is, in substance, “a medium for the carrying on of a business enterprise and sharing its gains,” thus making it analogous to a corporate organization. Morrissey, 296 U.S. at 359, 56 S.Ct. at 296, 80 L.Ed. at 271.
¶23 Hence, although a business trust may not have “directors” or “officers,” as in a corporate organization, the “trustees” may function in nearly the same manner as directors of a corporation for pin-poses of carrying on the business enterprise at issue. Morrissey, 296 U.S. at 358, 56 S.Ct. at 295, 80 L.Ed. at 272. Additionally, the earmarks of a business trust, not usually found in an ordinary trust, include the following characteristics: centralized management, continuity of life, transferability of interests, and limited personal liability. See Morrissey, 296 U.S. at 359, 56 S.Ct. at 296, 80 L.Ed. at 272. Ultimately, in a business trust, the relationship of the grantor to the property transferred does not differ in any material aspect before and after the creation of the trust. Markosian, 73 T.C. at 1243.
¶24 We concur with the DOR that the distinguishing features of a business trust are manifest in the Trust. First, the Bates’ transfer of property to the Trust was done in exchange for certificates of beneficial interest that are factually identical to shares or stocks issued by a business entity, particularly for purposes of identifying rights to distributable income. Thus, the UBIs held by the Bates effectively make them, along with their three children, “shareholders” in the Trust.
¶25 Second, these units of beneficial interest are easily transferred. The terms of the Trust require only the consent of one other disinterested beneficiary to effect such a transfer. Hence, similar to shares or stocks in a business entity, the UBIs are readily transferable.
¶26 Third, and importantly, the Bates continue to exercise substantial managerial discretion over the corpus of the Trust. The role of the “trustees” is somewhat vague, although they appear to function largely as an advisory board to the Bates, much like the directors of a business entity. Although the Bates point to the trust documents as indicating that the trustees have penultimate managerial authority over the business property, there is substantial evidence that the Bates made nearly all of the decisions relevant to the management of the property in the Trust, including both land-development and farming activities, and that the trustees simply “rubber-stamped” the Bates’ managerial decisions. Moreover, the Bates have the authority to write substantial checks against the Trust’s account without prior approval from the trustees. While the Bates pay nominal rent for continuing to reside in the farmhouse, there is no indication that they pay rent to the Trust for their continued use of the non-subdivided farmland. The weight of the evidence suggests that there has been little to no change in the Bates’ relationship to the assets they transferred into the Trust, and that the Bates’ business affairs have been conducted in substantially the same manner as prior to execution of the trust documents in 1992. In other words, “regardless of regularity of form as a matter of plutological reality, there [has been] no substantial change in economic ownership” here. Burde v. Commissioner of Internal Revenue (2d Cir. 1965), 352 F.2d 995, 1001.
¶27 Fourth, the Trust has a continuity of life more typical of a business entity. Trustees can be any person, provided that not more than 50% of the trustees are related to the Bates. Trustees can be replaced in a variety of ways akin to the directors of a corporation, including death, resignation, removal for cause, and the addition of another trustee. Furthermore, the Bates may personally appoint a “Protector” who can independently remove for cause and replace a trustee without unanimous consent of the other trustees.
¶28 Fifth, there is no personal liability for trust debts adhering to the Bates. Rather, all debt liability lies with the Trust property.
¶29 Lastly, as highlighted in IRS Notice 97-24, the Trust exhibits several of the distinguishing characteristics of an “abusive” business trust under federal law. Most important among these characteristics, the Bates accepted certificates of beneficial interest or UBIs in exchange for transferring their property into the Trust, and the property was transferred into the Trust at a stepped-up basis.
¶30 The Bates are correct in arguing that a taxpayer has a legal right to minimize or entirely avoid taxes by any means permitted by the law. See Gregory v. Helvering (1935), 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596, 599. However, when the form of the transaction has not, in fact, altered any cognizable economic relationships, that form will be disregarded and the tax law applied according to the substance of the transaction. Markosian, 73 T.C. at 1241 (citing Furman v. Commissioner of Internal Revenue (T.C. 1966), 45 T.C. 360, 1966 WL 1341). While we acknowledge that the Trust has some formal characteristics of an ordinary trust, we determine, on balance, that it is substantially a medium for the carrying on of the Bates’ farming and land-development enterprises; there has been little material change in economic ownership or reality before and after creation of the Trust.
¶31 Montana law does not recognize a “business trust” where, as here, certificates of beneficial ownership are issued to beneficiaries. Section 72-33-108(4), MCA. Therefore, since the Trust is void under Montana law, any transfer of property to the Trust is likewise void. The Trust must be disregarded for Montana tax purposes. We hold that the District Court correctly affirmed STAB’s order affirming the DOR’s assessment against the Bates personally.
¶32 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and NELSON concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 By Information filed in the District Court for the Fourth Judicial District in Missoula County, the Defendant, Albert Charlo (Charlo), was charged with aggravated assault, a felony, in violation of § 45-5-202, MCA (1985). Following a jury trial in 1986, Charlo was convicted of aggravated assault and sentenced to 20 years in prison for the aggravated assault and an additional 10 years for using a dangerous weapon during the commission of the offense. In 1999, Charlo filed a petition for postconviction relief in the District Court. The District Court dismissed Charlo’s petition for postconviction relief as untimely. Charlo appeals from the District Court’s dismissal of his petition. We affirm the order of the District Court.
¶2 The sole issue presented on appeal is whether the District Court erred when it dismissed Charlo’s petition for postconviction relief.
FACTUAL BACKGROUND
¶3 On November 14,1985, the State filed an Information against Charlo which charged him with the offense of aggravated assault, a felony, in violation of § 45-5-202, MCA (1985). The Information stated that “on or about October 3,1985, the above-named Defendant purposely or knowingly caused serious bodily injury to Walter ‘Sonny’ Steele by stabbing him with a knife.”
¶4 A jury trial was held on March 4 through 11,1996. Charlo was convicted of aggravated assault and judgment was entered against him on April 16, 1986. The District Court sentenced Charlo to 20 years for the aggravated assault and 10 years for the use of a dangerous weapon in the commission of the aggravated assault. The District Court ordered Charlo’s sentences to run consecutively. Charlo’s con viction and sentence were affirmed by this Court on March 31,1987, in State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278.
¶5 On April 14,1999, Charlo filed a petition for postconviction relief in the District Court. Charlo argued that the imposition of the additional ten-year sentence for using a dangerous weapon violated the prohibition against double jeopardy found at Article II, Section 24 of the Montana Constitution, as interpreted in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312.
¶6 On August 4, 1999, the District Court applied the applicable five-year statute of limitations pursuant to § 46-21-102, MCA, and dismissed Charlo’s petition for postconviction relief, concluding that, because this Court’s holding in Guillaume did not apply to Charlo’s case, no fundamental miscarriage of justice would occur based on the District Court’s application of the procedural bar to Charlo’s petition.
STANDARD OF REVIEW
¶7 The standard of review of a district court’s denial of a petition for postconviction relief is whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. See State v. Hanson, 1999 MT 226, ¶ 9,296 Mont. 82, ¶ 9,988 P.2d 299, ¶ 9.
DISCUSSION
¶8 Did the District Court err when it dismissed Charlo’s petition for postconviction relief?
¶9 Charlo contends that his sentence of 20 years for the aggravated assault and the additional sentence of 10 years for use of a dangerous weapon in the commission of the aggravated assault, is in violation of the prohibition against double jeopardy found at Article II, section 25 of the Montana Constitution as interpreted in Guillaume. There we held that a person convicted of felony assault, which requires the use of a weapon as an element of the underlying offense, is protected by the double jeopardy provision of the Montana Constitution from receiving an enhanced sentence for using a dangerous weapon.
¶10 In response, the State asserts that Charlo’s petition for postconviction relief, which was filed in April 1999, is barred by the five-year statute of limitations. Therefore, the State contends that pursuant to State v. Rederow, 1999 MT 95, 294 Mont. 252, 980 P.2d 622, Charlo’s petition cannot be considered absent a fundamental miscarriage of justice. The State argues that no fundamental miscarriage exception applies in this case because Guillaume dealt with felony assault which requires use of a weapon as an element of the of fense, whereas Charlo’s aggravated assault conviction did not require use of a weapon as an element of the offense. Therefore, the State contends that Guillaume does not apply.
¶11 In Hawkins v. Mahoney, 1999 MT 82, 294 Mont. 124, 979 P.2d 697, we held that “[t]o determine whether a petition is timely, this Court looks to the statute of limitations in effect at the time the petition for postconviction relief is filed, not to the statute in effect at the time of the conviction.” Hawkins, ¶ 9. Section 46-21-102, MCA, was amended in 1991, and remained a five-year statute of limitations until further amendments in 1997 reduced the period of limitation to one year. However, as we stated in Hawkins:
The 1997 amendments only apply to proceedings in which the conviction became final after April 24,1997, or during the 12 months prior to April 24,1997, if a petition under Title 46, chapter 21, has been filed within the 12 months after April 24,1997.
Hawkins, ¶ 10.
¶12 Accordingly, because Charlo’s conviction became final on March 31, 1987, and his petition was filed on April 14, 1999, the five-year statute of limitations applies. Nevertheless, Charlo’s petition was filed 12 years after his conviction became final, and is clearly in violation of the five-year statute of limitations.
¶ 13 However, in Redcrow, we held that there is a limited exception to the procedural bar of § 46-21-102, MCA. Redcrow, ¶ 31. We further stated that “waiver of the time bar is only justified by a clear miscarriage of justice, one so obvious that the judgment is rendered a complete nullity.” Redcrow, ¶ 34.
¶14 In Guillaume, this Court held that the application of the weapon enhancement statute to felony convictions where the underlying offense requires proof of use of a weapon violates the double jeopardy provision of Article II, section 25 of the Montana Constitution. Guillaume, ¶ 16. In Guillaume, we stated:
The only factor raising Guillaume’s charge from misdemeanor assault to felony assault was his use of a weapon. We interpret this distinction between the two offenses, and the different penalties imposed by each offense, as the legislature’s way of punishing a criminal defendant for use of a weapon in committing an assault. Thus, when the weapon enhancement statute was applied to Guillaume’s felony assault conviction, Guillaume was subjected to double punishment for use of a weapon: once when the charge was elevated from misdemeanor assault to felony assault, and again when the weapon enhancement statute was applied. We agree with Guillaume that this form of double punishment is exactly what double jeopardy was intended to prohibit.
Guillaume, ¶ 18.
¶15 Recently, in State v. Keith, 2000 MT 23, [298 Mont. 165], 995 P.2d 966, this Court held that the application of the weapon enhancement statute, § 46-18-221, MCA, to a conviction in which the underlying offense does not require use of a weapon as an element of the crime, did not constitute double jeopardy. In Keith, we stated the following:
Nevertheless, Keith argues that if she had not fired the gun she would not have been convicted of and received a 10-year sentence for the offense of criminal endangerment. She asserts that the additional 10-year sentence she received under the weapon enhancement statute is a double jeopardy violation because she has been punished twice for the use of a weapon as in Guillaume.
Keith, ¶ 38.
Keith misses the point of the double jeopardy analysis under Guillaume. That analysis is based on the statutory definition of the underlying offense, i.e., whether one of the elements of the offense requires proof of the use of a weapon. Criminal endangerment does not. The fact that Keith used a weapon when she committed that offense and was thus sentenced to an additional term under the weapon enhancement statute did not result in multiple punishment for the same offense because the offense of criminal endangerment, by its own terms, does not specifically increase a defendant’s punishment for the use of a weapon. Hence, application of the weapon enhancement statute to the crime of criminal endangerment is not a double jeopardy violation.
Keith, ¶ 39.
¶16 Charlo’s assertion that Guillaume applies to his conviction for aggravated assault is also incorrect. Charlo was convicted of aggravated assault in violation of § 45-5-202, MCA (1985). Aggravated assault requires that a person “purposely or knowingly causes serious bodily injury to another.” See § 45-5-202, MCA (1985). The offense of aggravated assault does not require the use of a weapon as an element of the offense. Therefore, when Charlo received an enhanced sentence for using a weapon in the commission of the aggravated assault, pursuant to § 46-18-221, MCA, he was not being punished twice for the use of a weapon. .Accordingly, our holding and rationale in Guillaume has no application to Charlo’s case.
¶17 Charlo’s petition for postconviction relief is procedurally barred by § 46-21-102, MCA. Because this Court’s rationale in Guillaume does not apply, and because Guillaume is the sole basis for Charlo’s petition, Charlo is unable to show that the fundamental miscarriage of justice exception should be applied in this case. Accordingly, we conclude that the District Court did not err when it dismissed Charlo’s petition for postconviction relief on the basis that it was time barred pursuant to § 46-1-102, MCA.
¶18 We affirm the judgment of the District Court.
JUSTICES HUNT, REGNIER, NELSON and LEAPHART concur.
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] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property. The complaint alleges that in August, 1899, the plaintiff was the owner of 150 head of Merino bucks, which had lately been imported into- this state from the state of Oregon; that the defendant was deputy sheep, inspector for Yellowstone county, and as such took the sheep from the possession of the plaintiff, and subjected them to certain quarantine regulations ; that none of the sheep were diseased; that the defendant wrongfully and negligently prepared the materials; used for dipping the sheep, and put therein carbolic acid or other poisonous matters in such quantities that 69 head of said sheep were killed, and the remaining 81 so badly injured as to render them, unfit for breeding purposes, for which they were purchased. The prayer of the complaint was for $-2,100 damages.
The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep- in question on August 20, 1899, and denied the; other material allegations of the complaint. By way of an affirmative defense the defendant alleged that the dipping of the sheep in question was done by him under and by virtue of a quarantine proclamation issued by the governor of Montana on April 15, 1899. The cause was tried to- a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken.
In the appellant’s brief only two- propositions are argued: (1) Does the complaint state a cause of action? And (2) did' the court err in excluding a, certain offer of proof made by the defendant and in sustaining objections, to- certain questions asked the defendant?
It is earnestly contended that the complaint shows on its face- that in the discharge of his- duties the defendant acted as a quasi judicial officer, and therefore is not liable for damages arising from his negligence, and would only be liable for such damages- as, were occasioned by his, willful or wanton misconduct, and no such misconduct is alleged. Such portions of the Political Code as are applicable to the facts of this case read as follows:
“Sec. 3034. Whenever the governor, by proclamation, quarantines for inspection as provided in the next section any sheep brought into' Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same, and if lie finds that they are infected with scab, or any other infectious disease, he must cause the same to- be held within a certain limit or place in¡ his said county, to be defined by him, until such disease has been eradicated, as provided in the next preceding section.
“Sec. 3035. Whenever the governor has' reason to .believe that any disease mentioned by this'article has' become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon by proclamation, designate such localities and prohibit the importation from them of any sheep' into' this state except under such restrictions as he, after -consultation with the veterinary surgeon, may deem proper. * "
Acting under the authority of these sections, the governor of Montana, on April 15, 1899, issued a proclamation, the pertinent portions of which read as follows: “Whereas, I have reason to believe that conditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep-, when brought into this state, liable to convey the disease known as 'scab/ it is hereby ordered that all rams-, or bucks, or stock sheep-, imported into the state of Montana, from any other state- or territory of the United States or foreign countries- whatsoever, must when shipped be loaded at point of starting into- properly disinfected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep' are to- be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks-, or stock sheep- driven into or through any portion of this state from any adjoining state or country, avoiding all "quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and there, clipped under the supervision of the state vetenarian through the deputy sheep inspector' of the county into which the sheep are to remain, and said sheep shall be dipped in some recognized and reliable dip known to be efficient in the cure of scab, twice, the second dip* to occur within ten days or between ten and twelve days after the first dipping.”
Under the foregoing provisions it was made the duty of the governor to determine what sheep^ not themselves diseased, should be quarantined, and to> prescribe the quarantine regulations. In doing so he doubtless acted in a quasi judicial capacity, and, having once determined that fact, and having pre-' scribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect.
But it is contended that under the provisions of the governor’s proclamation — “said sheep' shall be dipped in some recognized and reliable dip* known to- be efficient in the cure of scab” —the defendant was called upon to exercise his judgment and discretion in determining the material to be used and the method of its. application, and in this he acted in a, quasi judicial capacity. -With this contention we cánnot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and invested with the duty of carrying into execution this police power of the state. The mere fact that such officers are called upon to: exercise some discretion or judgment in selecting materials to- be used and the manner of their use does not change the character of their acts from; ministerial to judicial or quasi judicial ones. E'xpterience teaches that, few, if any, ministerial officers are not called- upon to1 exercise some judgment or1 discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished.
As distinguishing between acts quasi judicial and acts ministerial in their character, the following 'definitions Ave think correctly state the laA?: “Quasi judicial functions are .those which, lie midway between, the judicial and ministerial ones. The lines separating them from: such as are thus on their two sides are necessarily indistinct; but, in general terms, when the law, in words or by implication, commits to any officer the duty of looking; into facts, and acting upon them, not in a Avav which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi judicial.” (Mechem on Public Officers, Sec. 637; Bishop on Non-Contract Law, Secs. 785, 786.)
“Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does, not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.’ * * * The officer may not in strictness be a judge; still, if his powers, are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial.” (Throop on Public Officers, Secs. 533, 534.)
“A ministerial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his oavia judgment upon the propriety of the act done.” (Throop on Public Officers, Sec. 537; Flournoy v. City of Jeffersonville, 17 Inch 169, 79 Am. Dec. 468; Pennington x. Streight, 54 Ind. 376.)
In the same line, a ministerial act has also been defined as an act performed in a prescribed manner, in obedience to the laAA" or the mandate of legal authority, AvithoxAt regard to, or the exercise of, the judgment of the individual upon the propriety of the acts being done.” (Mechem on Public Officers, Sec. 657.)
An act is not necessarily taken out of the class styled “ministerial” because the officer performing it is nevertheless Arested Avitli a discretion respecting the means or the method to be employed. Such is not the judgment or discretion AA’hicli is an essential element of judicial action. (McCord v. High, 24 Iowa, 336; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem. on Public; Officers, Sec. 658; Ency. Law, 2d. Ed. 377.) Tbe same doctrine is announced in Hicks v. Dorn, 42 N. Y. 47. In this case tbe plaintiff, Hicks, was tbe owner of a canal boat, and tbe defendant was tbe superintendent of repairs in charge of one section of tbe Erie canal. Along this canal was a. dry dock, into which plaintiff’s boat had been taken for' repairs. In May, 1865, there was a violent spring rain, which raised the water in the canal to’ such an extent that in some .peaces it ran over the banks, and it became necessary toi open the waste gates connected with- the dry dock to let off the surplus' water. The captain eommienced moving the boat into the canal, and when about half way through the gates in the canal, the water having run rapidly out of that compartment of the dry dock, the boat was left resting upon the sill of the lock gates, about one-half of the boat extending, into the canal and the other half into the dry dock. In order to> render the canal navigable, it became necessary to move the boat; and several methods for the accomplishment of this purpose were open to the superintendent, one of which was cutting upi and removing the boat so¡ as to close the gates, and this method he pursued as the most expeditious for accomplishing his purpose. An action having been brought against him by the owner of the boat, among other defenses set up was that in performing, his duties the defendant had acted in a quasi judicial capacity, and could not be held liable except for wanton misconduct on his part.
In disposing of the contention the court said: “It is claimed that the defendant, in determining to¡ remove this boat, and in the removal of it, had a judicial discretion to> exercise; and hence that he is not liable, in a civil action, for the manner in which he fexercised this discretion. I am unable to. see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, and it was not left to' his discretion to' determine whether be would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly for damages sustained by any person from liis neglect of duty. In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to- exercise his discretion as to- the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the- defendant was bound to- discharge his ministerial duties in a prudent, careful manner, without infringing upon the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured.”
The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. Wc are of the opinion- that in the discharge of his duty the defendant acted in a ministerial capacity only.
Upon the trial the defendant in his own behalf made the folloAving offer of proof, which, under objection, was excluded: “We desire to show by this witness that no different character of dip is used in which to dip- Merino bucks as contradistin-guished from ewes or wethers; that the dip- in question is a staple in the'market for the purposes for which it is used, and is sold in the open market for such purposes, and sold under a certain specific name and brand; that before and after the month of August, 1899, the defendant, as deputy sheep inspector, used the same character of dip> so far as he could tell by brand and selling mark, in which to- dip sheep generally; that he used this dip- so- purchased in proportions such as were used in the instance of the Bair bucks, and that in the admixture of the same with water he substantially did. in those other cases as he did in this instancé; that the dipping of those other sheep- was in the vat in which the bucks in question were dipped; and that no fatal results followed from the dipping of those sheep- in substantially the same- manner and in the dip- made in the same proportions as was used in this instance.”
Afterwards tbe following questions were asked tbe witness, abd objections to t-liein were sustained: “Q. Was tbe dip' tbat was used in- tbe dipping of Mr. Bair’s sbeep tbe same dip- as was used in tbe dipping of those other sheepi?” “Q. You may state if tbe dip' and tbe water used in the dipping of these sbeep of Hilling’s and William Clinton’s just prior to tbe dipping of tbe Bair sbeep- were in tbe same relative proportions.”
Consideration of tbe offer of proof and of tbe questions referred to may be bad together, as they are treated as one error by tbe appellant in bis brief.
The evident purpose of tbe defendant was to show tbat be bad used tbe same material, mixed with water in tbe same proportion, in dipping other sheepi as in tbe case of tbe dipping of the sheep in question, and tbat no- serio-us or damaging results bad followed. If the offer of proof bad fairly presented this-matter, it would have been competent. It is contended by tbe respondent tbat tbe offer is- fatally defective in many respects; that tbe offer must show tbat the dipping’was done under like circumstances-, with like conditions prevailing as to the character of tbe sbeep, tbe conditions o-f tbe weather, and numerous other conditions to- which it is- not now necessary to- refer.
In our judgment, the offer was fatally defective in one particular at least. Assuming tbat tbe questions asked and tbe offer made fairly show that the other sheep' were dipped! in the same material, mixed in water in the same proportion, under like- circumstances and surroundings, still the offer only seeks to- show' that in tire other instances fatal results- did- not follow. In submitting this- offer counsel, in effect, stated to tbe court tbat they desired to- make this proof, and none other, with reference to that- particular subject. Tbe offer is made as a- whole-. It is not for tbe court to separate tbe admissible from the nonadmis-sible, and admit the one and rej ect tbe. other. If the offer as' a whole contains objectionable matter, no error can be predicated upon the ruling of the court- in excluding it. (Yoder v. Reynolds, 28 Mont. 183, 12 Pac. 417; Farleighv. Kelley, 28 Mont. 421, 72 Pac. 756.) The defect in tbe offer becomes very appar ent when we consider the fact that the complaint in this instance alleges that G9 head of sheep1 were killed, and that the remaining 81 were so materially injured as to- render them unfit for breeding purposes. It may be that in the other instances no fatal results followed, but that such damage was caused as to render those sheep likewise of no value for the purpose for which they were kept; in other words, the offer is so pregnant with the admission that serious or damaging results may have followed that it could have no- evidentiary value; and in its exclusion we cannot say that the court committed error.
The judgment and order denying defendant a, new trial are affirmed.
Affirmed.
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] |
ME. COMMISSIONED POOKMAN
prepared tbe opinion for tbe court.
. :In tbis case, on- an unverified written application by tbe county attorney, leave of court was obtained and an information (Verified on information and belief was filed against tbe defendant and one Charles Lennox, without a previous examination vbefore a committing magistrate, charging defendants with mur-ider in) the first degree. A bench warrant was issued for the "arrest of; the defendants." It does not' appnar what became of the case against có-defendant Lennox, but a trial of tbe action resulted in a verdict of guilty of murder in tbe first degree as to tbe defendant Martin, and sentence of death was imposed. Defendant moved for a new trial, which was overruled. This appeal is from the judgment and from the order overruling the motion for a new trial.
Prior to the trial the defendant moved “to vacate and set aside” the order granting leave to file the information, for the reason that the application therefor did not state facts sufficient to constitute probable cause, was not sworn to, and that no examination of defendant had been had before a committing magistrate. ' This motion was overruled by the court. A motion to quash the information was then interposed on the same grounds, and the further ground that the information was not properly verified.
Obtaining leave to file an information without a previous examination of the accused before a committing magistrate is not a mere perfunctory matter which should be granted as of course, but rests in the sound discretion of the district judge, upon the showing made to him at the time. The facts, however, from which the court draws its conclusions that such leave should be' granted, need not be embodied in the application therefor. It is sufficient if reasons satisfactory to the court are presented, whatever may be the form, or manner of their presentation.
An abuse of discretion materially prejudicing a substantial-right of the accused would be ground for reversal, but no such abuse appears in this case; no such showing is made; and the appellate court cannot presume that the trial court exceeded its authority- or abused its discretion.
The questions raised on the motions in this case relate wholly to the written application asking leave to file the information, and to the verification of the information. These questions have ' all been foreclosed and decided adversely to. the contentions of appellant by former decisions of this court; and the district ■court did not err in overruling the motions. (State v. Shafer, 26 Mont. 11, 66 Pac. 463; State v. Bowser, 21 Mont. 133, 53 Pac. 179; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. Mansfield, 19 Mont. 483, 48. Pac. 898 ; State v. Brett, 16 Mont. 360, 40 Pac. 873; State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026; State v. Little Whirlwind, 22 Mont. 425, 56 Pac. 820; State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 Pac. 410.)
Subsequently, and before trial, defendant filed bis petition for a change of place of trial, on the ground of prejudice of the people of the county where the action was pending, and undue influence exerted by the prosecution over the minds of the people of that county. The affidavit of defendant wias filed in support of the petition. The petition and affidavit in support thereof are based) upon certain articles, alleged to be prejudicial to defendant, appearing in a newspaper published and circulated in that county. The facts relative to these articles were known to the appellant prior to the trial. ■ It appears from the record that the regular jury panel was exhausted, and that a special venire was issued before a jury was obtained. The record, however, does not contain the examination of the jurors on their voir dire, nor does the record contain any evidence or statement, either by affidavit or otherwise, as to whether any of the jurors selected had ever read or discussed, or heard read or discussed, any of the newspaper articles in question. A juror could not be prejudiced against defendant by reason of the articles complained of, unless he had some knowedge of their existence and contents. Neither does it appear fium the record that any juror was challenged. This court cannot presume disqualification on the part of trial jurors merely from the fact that an article prejudicial to defendant was published in a newspaper having a circulation in the county where the action was tried.
Section 2051 of the Penal Code provides in part: “But no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding.such opinion, aet impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must- be entered in the minutes of the court or of the stenographer.” This statute and similar statutes have been considered, both as to their meaning and constitu-. tionality, by prior decisions of this court, and under these decisions, and the facts above stated, the objection of the appellant to the action of the trial court in overruling the application’ for change of venue is not-well taken. (Territory v. Bryson, 9 Mont. 32, 22 Pac. 147; State v. Sheerin, 12 Mont. 539, 31 Pac. 543, 33 Am. St. Rep. 600; State v. Russell, 13 Mont. 164, 32 Pac. 854. See, also, Spies v. Illinois, 123 U. S. 131, 8 Sup. Ot. 21, 31 L. R. A. 80; State v. Mott, 29 Mont. 292, 74 Pac. 728.)
It is further claimed that the court erred in permitting the name and official title of the county attorney to be placed on the instructions given to the jury.
Subdivision 4 of the Act of February 15, 1901, provides, in substance, that, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney, and delivered to the court; that the counsel shall have reasonable opportunity to argue to the court any instructions offered; that the court shall give each instruction as requested, or refuse to do so, or give the instruction with a modification, and shall mark or pass upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner if it is refused or modified. All instructions given by the court must be filed together, with those refused, as a part of the record. (Session Laws 1901, p. 173.) If this law means that the precise papers containing the requested instructions are to be given to the jury and taken by them to the jury room, it would follow that in case of a modified instruction the jury would have both the original requested instruction and the modification thereof as given by the court. Such is not tbe meaning of tbe law. Instructions axe given by tbe court, not by tbe parties. Tbe requested instructions are required to be signed -by the party as a matter of identification. They are then given to tbe court, to be considered by it in preparing tbe instructions which it gives to tbe jury, after which they are marked, as required by tbe law, and are filed with other papers in tbe case. This very' point appears to have been one- of tbe assignments of error in State v. McDonald, 27 Mont. 230, 70 Pac. 724. Tbe court in that ease says: “We do not find any error made by tbe court. We add, however, that tbe submitting of written instructions to- tbe jury, with tbe signatures of tbe several counsel attached to- them, as. in this case, is not .to be commended.” This case, however, was tried prior to tbe decision in State v. McDonald, supra, and we cannot say that tbe error complained of was more than- an irregularity. It is insufficient to justify a reversal of tbe case.
Tbe appellant objects to instructions Nos. 3, 6, 14 and 19, given by tbe court, and further objects to tbe refusal of tbe court to give certain instructions requested by the defendant.
In instruction No-. 1 tbe court told the jury that tbe plea of not guilty on tbe part of tbe defendant required proof, on tbe part of tbe prosecution, of all tbe material allegations contained in tbe information, beyond a reasonable doubt.
Instruction No-. 2 is to tbe effect that tbe fact that defendant bad been accused and informed against was of itself no evidence of guilt, and: that no juror should permit himself to be influenced against tbe defendant because of or on account of tbe information in the case.
Instruction. No. 3 is in tbe following language: “You are instructed that tbe defendanat in a criminal action is presumed to be innocent until tbe contrary is proved, and, in case of a reasonable doubt whether bis guilt is satisfactorily shown, be is entitled to acquittal.”
In instruction No. 4, tbe court gave tbe definition of reason-, able doubt as contained in Territory v. McAndrews, 3 Mont. 158, and which was taken from Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711, and Commonwealth v. Costley, 118 Mass. 1, and which has been repeatedly indorsed by this court in subsequent decisions. (State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L. R. A. 749; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am St. Rep. 655; State v. Harrison, 23 Mont. 79, 57 Pac. 647; State v. Bristol, 21 Mont. 578, 55 Pac. 107; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. Vineyard, 16 Mont. 138, 40 Pac. 173.)
The specific objection appellant makes to the third instruction is that the phrase “beyond.a reasonable doubt” does not immediately follow the word “proved” as the same appears in the instruction. The presumption of innocence in a criminal case is a condition existing which must be overcome by evidence beyond all reasonable doubt; when so overcome it disappears — ■ not before. The phrase “beyond a. reasonable doubt” nominates the quantity, quality and kind of evidence necessary to overcome this presumption of innocence, and it is itself the condition of the mind resulting from this evidence. It has been held that the presumption of innocence is evidence introduced by the law in favor of the accused. (Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Eld. 481.) This presumtion may have the effect of evidence, in that it must-be overcome by evidence; but, strictly speaking, it cannot be evidence, nor can it be introduced in the case, for it is in the case from its inception. It needs no introduction. It is the safeguard which the law casts around all persons accused of crime, and the defendant cannot be reached by a verdict of guilty until this safeguard is entirely removed. This removal can only be accomplished by evidence which satisfies the minds of the jurors beyond a • reasonable doubt. The presumption of innocence is in effect the very thing against which the prosecution is directed.
Instruction No. 3 is a verbatim .copy of Section 2072 of the Penal Code, and-is, when read in connection with instruction No. 4, substantially the same in form and meaning as the instruction requested by the defendant. This instruction No. 3 is therefore not open to the objection made by appellant.
Instructions 1, 2, 3 and 4, given, are practically tbe same as the instruction quoted in State v. Harrison 23 Mont. 79, 57 Pac. 647, wbicli the trial court refused to give, and which refusal this court held was error. In the last case no> instruction was given telling the jury that the defendant w’as presumed to be innocent.
Instructions numbered 6 and 19 are copies of Sections 352- and 41, respectively, of the Penal Code, and the giving of these instructions in this case was not error.
Instruction No. 14 is in the following language: “Except as explained in the the instructions, the unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation/’’ In the preceding instruction the court gave correct definitions of murder in the first degree and murder in the second degree. Instruction No. 14, above quoted, is the same as the first half of the erroneous instruction quoted in State v. Shafer, 22 Mont. 17, 55 Pac. 526, except that the instruction in the case at bar is preceded by a reference to other instructions, which does not appear in the Shafer instruction. To the Shafer instruction is also added this further statement:; -“.It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on-the part of the slayer, and if such is the case the killing is murder in the first degree.” The instruction in the Shafer Case was held erroneous by reason of this latter clause being added to' it j that it was not a correct definition of murder in the first degree, for the reason that it did not contain the words “malice aforethought.” The only part of the instruction, however, which the court held erroneous in the Shafer Case is that last quoted, and the court then expressed some doubt as to whether “this error standing alone would be considered sufficient to authorize a reversal of the case.” We do not find any error in the action of the court in giving this instruction, but will add that instruc tion No. 14 would be insufficient but for tbe fact of supplementary instructions used in connection witb it, which cure the omissions apparent in it.
The instructions asked for by the defendant were given in substance, with one single exception, which will be noted herein. “It is not error to refuse to give instructions asked for, however correct or applicable, if they have in substance already been given in the charge of the court.” (Territory v. McAndrews, 3 Mont. 158.) One of the instructions requested by the defendant which was not given by the court contained a definition of “moral certainty.” None of the instructions given contained a definition of this term. If such definition is necessary, it was error in the court to refuse an instruction giving’ a proper definition.
It is difficult to define either “reasonable doubt” or “moral certainty” in terms more definite or comprehensive than the phrases themselves. In one of the many definitions given in Bouvier’s Law Dictionary, we find “moral certainty” defined as “such certainty as convinces beyond a ‘reasonable doubt,’ ” and one of the definitions of “beyond a reasonable doubt,” “it is proof to a moral certainty.”
In State v. Harrison, 23 Mont. 79, 57 Pac. 647, the instruction approved of by this court defines “reasonable doubt” as “an abiding conviction to a moral certainty.” Likewise, in State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655, in the instruction suggested, “moral certainty” is defined as proof so convincing that the juror would act upon it in matters of the highest concern and importance to his own interest. It is apparent that these definitions of “reasonable doubt” and of “moral certainty” are practically identical, for if a juror has no reasonable doubt of the truth of a fact, he should certainly not hesitate to act upon it. The law cannot take notice of unreasonable doubts.
In Commonwealth v. Costley, 118 Mass. 1, the court says: “The phrase ‘moral certainty’ has been introduced into our jurisprudence from the'publicists and metaphysicians, and signifies only a very high degree of probability. * * * .Proof 'beyond a reasonable doubt’ is not beyond all possible or imaginary-doubt, but such, proof as precludes every reasonable hypothesis except that which it tends to support. It is proof 'to a moral certainty,’ as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by: eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and- so satisfied' them as to leave no other reasonable conclusion possible.” ■
If these terms are synonymous and equivalent, it necessarily follows that a, definition of the one is a definition of the other. It is possible always to question, and with some show of reason, any deduction made or conclusion reached from metaphysical speculation. The definition of "moral certainty” given in the refused instruction contains this statement: “Is the juror so convinced by the evidence of the truth of the fact sought to be proved that he himself would venture to act upon such conviction in matters of the highest concern and importance to his own interest ?” This is in effect weighing the evidence in the case in the same manner and with the same standard that jurors would weigh evidence touching their own financial and other interests. It might be said with some degree of reason that human life is too sacred to be weighed in the coarse balances by which men adjust even the most important affairs of life— "scales which are turned at the touch of a bare preponderance,' by which the issues are determined, but which are not sensible to the finer elements of purpose and intent which lie hidden in act and deed” — and it is doubtful if any deduction can be made or any definition given of the term “moral certainty” which could not be criticised. Certainty and stability in the-rules governing judicial proceedings, however, should never be-sacrificed to'undue nicety in phraseology and too great critical exactness in the use of words. (Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597.) In State v. Gleim, supra, tbe court says, “If the definition of ‘moral certainty’ is to- be given at all”— then follow suggestions as to- what it should be; and while it is not error to give the proper definition of “moral certainty,” we cannot conclude that the rights of the defendant have been invaded, or that he has been prevented fromi having a fair trial, merely because the. court did not specifically define the term, “moral certainty,” as a proper definition of the term “reasonable. doubt” was given, as in the McAndrews Case.
We recommend that the judgment and order appealed from be affirmed.
Pee. CueiaM.
Eor the reasons stated in the foregoing opinion, the judgment and order appealed from are affirmed.
Rehearing denied January 16, 1904.
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] |
MR. JUSTICE MILBURN
delivered the opinion of the court.
This is an appeal from the judgment for plaintiff. The plaintiff sued defendant to recover the sum of $200 and interest, alleging that on the 19th day of July, 1898, the defendant corporation made and delivered to her its promissory note in- words and figures as follows:
“$200.00. July 19, 1898. One day after date we promise to pay to the order of Mary Jane Ag'le two- hundred and 00-100 dollars at one per cent, per month. Value received. No. 4,376. Due one day. Standard Drug Oo. A. L. Holly, Sec.”
Plaintiff avers that the note is evidence of $200 furnished to the defendant and received and used by it in- the carrying on of its business, and that on the 24th day of January, 1899, the defendant corporation, at a meeting of its directors, ratified the act of its secretary in borrowing the said $200 and giving the note therefor. Plaintiff also alleges 'that there has not been paid any part of said- note, except the sumí of $24 interest paid by the defendant on the 19th day of July, 1899. The defendant denies the execution of the note, and, referring to- the $200, denies that it received “the same,” or used “said sum” in carrying on its business for its use and benefit; and further denies that on the 24th day of January, 1899, or at any time, the defendant, through its board of directors, authorized any one to make the said sum of money a charge against the corporation, or ratified the acts of its said officer or officers, or caused the sum of $200 to be entered on-its books as part of the indebtedness of the corporation; and defendant denies that defendant, “with its knowledge or consent,” paid the sum of $24, or any sum, as interest on said note at any time.
The cause came on regularly for trial before the court, sitting with a jury. After the evidence was all submitted, a motion for nonsuit was made and denied. Thereupon, as the record shows, “the jury was instructed by the court to find their verdict for the ¡olaintiff,” and the jury returned a verdict for the full sum claimed, with interest at one per cent, per month from July 19, 1899. It does not appear that any objection was made or exception taken to the order of the court made to1 the jury to return a verdict for the plaintiff, and appellant does not make any point on appeal as to this order.
The testimony tends to show that said A. L. Holly was the company’s secretary-treasurer, and the manager of its business; that there were three stockholders and three directors, P. L. St. Jean, H. B. Allaeys and said Holly; that on the 24th day of January, 1899, there was a meeting of the board of directors held, at which time they considered the question of the indebtedness of the corporation, and, among other things, took into consideration the matter of the $200 now claimed by Mrs. Agle; that, at this meeting of the board of directors, interest was paid on this note, and that the president, Dr. St. Jean, “thought the money to Mrs. Agle should have been paid off before this time” ; that the interest was paid by the secretary-treasurer and manager ; that the money was received by the company from Mrs. Agle, and used by it; and that the acts of the secretary in borrowing the money and in giving the note were ratified. ' Defendant, by its pregnant denial supra> admits that it used the same.
Objection was añade on the hearing to the introduction of the note in evidence, and reliance is placed by appellant upon the. case of Trent v. Sherlock, 24 Mont. 255, 61 Pac. 650, reheard in 26 Mont. 85, 66 Pac. 700. We do not find anything in this case, either upon the first or the second hearing, that supports the contention of the appellant that the court erred in allowing the note to be introduced in evidence, although it was not prima facie evidence of the indebtedness of the company. It was a part in the chain of evidence; and, taken in connection with the other matters proven to which we have referred above, was competent, for what it was worth, as tending to support the contention of plaintiff.
It is not necessary to consider the other assignments, which, like the one we have considered, are1 not tenable.
The judgment of the court is affirmed.
Affirmed.
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ME. JUSTICE' MILBURN
delivered the opinion of the court.
On the 9th day of July, 1902, there was presented in this court an accusation in writing’, verified by the oaths of one James Sullivan and one Jane D. Nan Duesen, respectively, charging B. S. Thresher, an attorney and counselor at law of the courts of Montana, with certain acts involving deceit, fraud and moral turpitude, in violation of his duties as such attorney and counselor at law. The complaint containing the accusations was made by James Sullivan, and contains six counts. The accused duly appeared, and made certain objections in writing to all of the count® excepting the sixth, declaring as to •each of the five counts that “it did not state facts sufficient to' show deceit, fraud or malpractice on the part of the accused.” As to the fourth count, the accused further objected on the ground that it did not statei facts sufficient to show* that he had ever been convicted of any offense in any court. The. court, upon consideration, overruled the accused’s objections.to the first and fifth counts, and sustained those made by him to the. second, third and fourth counts. The writer hereof, for reason® contained in Ms concurring opinion in In re Weed, 26 Mont. at page 516, 68 Pac. 1115, dissented from the order overruling the objections to the fifth count. It is unnecessary in this opinion to state tiie matters referred to' in the counts which were stricken out. Thresher appeared before the referee, to whom this court referred the matter for the purpose of taking testi-m|ony, and testified in his. own behalf, denying each of the charges made.
The first count charges the accused with unlawfully withholding from said Sullivan the sunn of $'4S.50, money alleged to. have been collected for him by Thresher as. his attorney.
The fifth, count charges that the accused unlawfully withheld and appropriated to his own use the, sum of $115.80, received by him, from Mrs. Van Duesen, this sum having been turned over to him by her withi instructions toi forward it to the Masonic Relief Board of Los Angeles, Cal., to pay for the transportation of the body of her deceased husband, and to release and obtain possession of certain pieces of jewelry said to be held by that board pending the repayment to it of money advanced for such transportation and other expenses incident to the illness and death of her husband.
The sixth count charges him with unlawfully appropriating to his own use the sum, of $15, collected by him from one J. E. IConen upon the compromise of a judgment debt of $500 against said Konen, the accuser alleging that said Thresher, without any authority so to do, agreed to, receive $200 from IConen in full of said judgment; and, further, that Thresher continued for a long time to misrepresent the facts in the case to Mrs. Van Duesen, in that he stated that an execution had been issued under said judgment, and that the1 property of the judgment debtor had been sold under execution, and bought in for the estate of her deceased husband, when in fact no execution had ever been issued.
As to’ the first charge it is sufficient to’ say that it does not appear to us that the accused isi guilty as charged. It is apparent from the evidence that the accuser is not a credible witness. We therefore find Hie said Thresher, as to this count, not guilty.
As to the second of the remaining counts, to-wit, the one numbered 5, we find from an examination of the evidence that the said Thresher was acting in a dual capacity,. His first connection) with the matter of the expenses incident to’ the illness and death of said Van Duesen arose from his being a member of the fraternal order to which the Masonic relief board is an adjunct. There were numerous compnunieations in writing between the said board and Thresher, and, after the sum of $115.80 was turned over to him by Mrs. Van Duesen to* be for warded to Los Angeles-, there were several interviews between her and him, in one of which she demanded the return of said sunn to her, she saying’ that she wished to- use it for an entirely different purpose. It appears1 that the members of the society of which the deceased had been a member had expended a sum of money largely in excess of the $115.80 for care of the deceased during his illness and in making arrangements for the transportation of the body to his late home. It seems reasonable to believe that Thresher retained the money in his possession, for at least part of the time, because there was delay in the delivery of certain articles of value belonging to deceased and in possession of the relief board in California. Negotiations between the board and the accused not having resulted in the delivery of the property to him, or in the payment of the money to it, Daniel Yancey, Esq., an attorney at law in Butte, Mont., was employed byi the board to procure the payment of said $115.80, and to deliver the articles of property to the proper person. Upon identification of the articles within a reasonable time, and upon demand made u,ppn the accused, the money was paid by Thresher to- Yancey. Some questions o-f veracity arose between the parties in California, Mr. Thresher and Mrs. Yan Duesen. After full consideration of the evidence in the case, we cannot say with any reasonable degree of certainty that the accused was at any time guilty of having unlawfully converted to his own use the said sum of $115.80, or any p-art thereof. The evidence is not sufficient to show any moral turpitude on the part- o-f Mr. Thresher in the premises-.
The accused was the attorney of Mrs. Yan Duesen in the matter of the settlement of the estate of her deceased husband, she being the administratrix. The aforesaid Konen, according to the testimony, appears to have owed the estate between five and six hundred dollars The administratrix, according to her testimony, authorized her attorney to settle with the debtor for $500, if he could do so, but, if not, to cause execution to is-su-e, and the property to be sold. On the property in question appears to have been a mortgage lien of $450, the premises being worth, according to the testimony of the debtor, the sum of $900. Thresher had been legal counsel for the deceased in. his lifetime, and, as he says, had a claim against the estate for services rendered. Mrs. Yan Duesen testified that Thresher promised to> perform the necessary legal services for her for a fee not to exceed $35 or $40. The daughter of Mrs. Yan Duesen testified that she heard Thresher say that he did not suppose Konen . would pay, and the only thing to do was to sell the property at sheriffs sale; that her mother ashed him, if Konen had paid anything, to which he replied “No”; that this was some time in September or October, 1901; that he said the only thing to do was to sell the, place; and her mother replied that she did not like to take a man’s home away from him, but she needed the money, and that she told him to pursue whatever course he thought best. Konen testified that he paid $75 to Thresher on or about the 13th day of June; 1901, but that it was paid at different times. It appears also that there was an agreement between. Thresher and Konen to' compromise the judgment debt for $200, but the property should not, be released from the judgment unless the said sum of $200 should be paid in full. It ap,p:ears, as above stated, that only $75 was paid. Thresher did not pay anyi part of the $75 to> the administratrix, claiming that he had earned that sum, or more, as counsel for the deceased and for the administratrix. Of course, it would be irregular for any- attorney to' withhold from the administratrix money collected by him for the estate on the plea that the deceased, in his lifetime, had become indebted to him. His only course in such a case would be to pay the money over to' the administra-trix, and to put in his claim against the estate in) the manner and form provided by law for the filing of claims against an estate.
The accused testified that Mrs. Yan Duesen said that she thought she ought to be able to realize $500 on the judgment debt; that he stated! that that was impossible; that the property was, not worth it; that it might be possible to sell the property under the, hammer for $750 or $800, and that it might not sell for inore than the mortgage and' other claims; and that she told him to da" whatever he thought best, and to realise what he could out of it, but that she thought they ought to- pay the entire judgment; that he said it wasi simply a question as to what could be realized; that soon after judgment the debtor came into' his office, and wanted to know what he could do about the judgment, saying that he never could pay it; that, if the creditor should “take his home,” nothing would be realized on it. After considerable discussion an understanding was reached that he wasi to pay $>200' at the rate of $25 per month, and, in case he did not make all of the payments as- agreed, anything that he did pay should simply apply on thej judgment. The accused admits having, received $75, and thinks that the last payment wasi made some time in September, and testifies- that he reported the full facts to. the administratrix as to what the agreement was; and that she said that that was as good as could be done in the. matter.
While we cannot approve of an attorney collecting his own-claims against an estate by withholding money collected by him for the estate without having first filed his claim in accordance with the; law, and having had the same approved and allowed! as- the law provides, and without having received permission from the administratrix pursuant to an order o-f the court to retain the money, still we do not believe such conduct calls, in the first instance, for soi severe a penalty as disbarment. Considering all the conflicting testimony and the fact that the testimony of the administratrix seems in a measure to- corroborate the statement of Mr. Thresher that he should db as he thought best in the matter of bringing about a compromise with the judgment debtor, we cannot say that his conduct in thus negotiating with Mr. Konen with, a view to- a settlement was reprehensible'.
It does not appear, in res-peot of any of the three charges considered that the accused is guilty as. charged, in any one of them, and therefore these proceedings are ordered dismissed.
Dismissed.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for damages for. a personal injury. From the amended complaint we gather the facts, alleged as the ground of recovery, as follows: The defendant corporation owns and conducts a foundry and machine-shop in the city of Butte. The plaintiff was, at the time he was injured, in its employ as a teamster, and in this capacity his office was to haul, from place to place about the premises, heavy machinery and castings whenever in the course of defendant’s operations it became necessary. On August 1, 1904, he was directed to move from the foundry to the machine-shop an iron easting weighing about fifteen hundred pounds. Having loaded it upon his wagon, and hauled it to the place designated in the machine-shop, he was engaged in unloading and lowering it to the floor. To enable him to do this he was furnished with an appliance consisting of a crane, blocks, and a chain. The process of unloading was intended to be accomplished by first lifting the casting from the wagon by means of the appliance mentioned, and holding it suspended by the chain until the wagon was removed, and then lowering it to the floor. The unloading had been accomplished up to the point when it became necessary to lower the casting. It was then suspended about five feet from the floor. To effect this it was necessary that the appliance be loosened, presumably so that the chain would run through the blocks, and thus allow the casting to descend gradually, under plaintiff’s control. While the plaintiff was in the act of adjusting the appliance in order to lower the casting, it being necessary for him to take hold of it for that purpose, the chain broke, and the casting fell upon his right leg, so crushing and mangling it that amputation became necessary. The negligence with which defendant is charged is alleged as follows: “That said chain so around said casting, and which was so furnished to this plaintiff for such use, was wholly insufficient and unsafe, in this, to-wit: That the same was not of sufficient size to hold or bear the weight of said casting, and by reason thereof it was not of such strength as was required for such casting, and was too weak to hold the same, all of which was well known to said defendant, and of which this plaintiff was ignorant. Plaintiff further alleges that defendant was guilty of gross negligence in not furnishing this plaintiff a sound, safe, and substantial chain with which to handle said casting, and that but for the gross carelessness and negligence of said defendant in this regard this plaintiff would not have received said injury. Plaintiff further alleges that said appliances, consisting of crane, blocks, and chain, were the property of said defendant, and were furnished for use by said defendant, and that this plaintiff used the same under the direction and orders of said defendant.” It is then alleged that by reason of the injury thus suffered the plaintiff was permanently disabled, that he has suffered great mental and physical pain and anguish, and that he has been put to expense for medical treatment, etc. To this complaint the court sustained a general demurrer, and, the plaintiff refusing to plead further, rendered judgment for the defendant. Thereupon plaintiff appealed.
The contentions of counsel in this court present two questions: (1) Does it appear from the allegations of the complaint that the chain was so obviously insufficient to answer the purpose for which plaintiff attempted to use it that he knew, or ought to have known, that its use would be attended with danger, and that he therefore assumed the risk? (2) Did the plaintiff, by approaching the easting while suspended by the chain, voluntarily put himself in such a position that he was caught by its fall and injured, whereas, but for his own negligence in this regard, he would not have suffered any injury ?
The rule has been repeatedly announced by this court that in an action for personal injury the plaintiff is not required to allege his freedom from contributory negligence, but that its presence is a matter of defense. (Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852, and cases cited.) To this general rule is recognized the exception that when the complaint alleges facts from which, by fair interpretation, negligence on the part of the plaintiff, which Avas a proximate cause of the injury, must be inferred, it will be demurrable, unless the pleading alleges additional facts shoAving that he was nevertheless acting with due care. The same principles apply when freedom from liability is claimed by defendant on the ground that the plaintiff assumed the risk of the danger arising in the course of the employment in which he Avas injured. If the facts stated in his pleading fairly support the conclusion that he assumed the risk, it must be held not to state a cause of action. (Longpre v. Big Blackfoot Milling Co., ante, p. 99, 99 Pac. 131.)
It is contended by counsel for respondent that the allegation that the chain was wholly insufficient and unsafe, in that it was not sufficient in size to hold or bear the weight of the casting, furnishes conclusive ground for the inference that the plaintiff knew that it would be dangerous for him to use it, and hence that any inference of liability on the part of the defendant is excluded. A servant is conclusively presumed to have assumed the ordinary risks of the employment. (Revised Codes, sec. 5243.) This is a part of his contract of service. Beyond this he does not assume any risk, except by express agreement, or where the circumstances are such that he must be presumed to have done so from the fact that he continued in the employment, though the extraordinary danger was known to him, or was so obvious that he must be presumed to have had knowledge of it. (Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Hollingsworth v. Davis-Daly Estates Copper Co., ante, p. 143, 99 Pac. 142.) In Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29, this court, through Mr. Justice Holloway, quotes with approval from Carlson v. Northwestern Telephone Exch. Co., 63 Minn. 428, 65 N. W. 914, as follows: “Where a large number of men are employed upon the same work, it is essential that reasonable orders, regulating their conduct and assigning to them proper places in which to work, should be given. It is the duty and the right of the master to give orders and direct the places where his servants shall work. Their duty is instant and absolute obedience, unless it be obvious to them that such obedience will expose them to unusual dangers. Dispatch, discipline and the safety of person and property in the execution of work imperatively require that the master should order and the servant obey. It would be practically impossible to carry on a work of any magnitude on any other basis. A workman, when ordered from one part of the work to another, cannot be allowed to stop, examine, and experiment for himself, in order to ascertain if the place assigned to him is a safe one.” This may with equal propriety be said of the appliances furnished by the master to his servant. It is the master’s duty to use ordinary care to furnish his servant with reasonably suitable and safe appliances. The servant has a right to presume that this duty has been observed. Hence his duty is to yield instant obedience in the use of them, and he will not be held to have assumed the risk of any unusual danger incident to such use, unless he knew of it, or it is so obvious that he must be presumed to have observed it.
The allegation referred to does not import that, at the time he was directed to use the chain in question, the plaintiff had, or should have had, knowledge that its tensile strength was not sufficient to bear the weight of the casting. Knowledge of its size would not imply such additional information; for the tensile strength of a chain does not depend upon its size alone, but upon a variety of elements, such as the kind and quality of the metal composing it, and the process and skill used in its manufacture. Nor can the presumption that the plaintiff had such knowledge be indulged against him. There is no fact stated furnishing a basis for it, as that he had experience, by previous use of the particular chain, so that he must have known its quality, or such general experience in the use of other similar appliances that he could detect their latent qualities by mere inspection. Besides, if any such presumption should otherwise have been indulged, he alleges his want of knowledge in terms sufficiently explicit to rebut it. Upon the facts stated the plaintiff did not assume the risk. Nor do his allegations justify the conclusion that he was guilty of contributory negligence in going near enough to the suspended casting to release the chain in order to complete the task assigned him; it being necessary for him to do so. If the chain had been of sufficient strength, it would not have broken. Plaintiff had the right to assume that it would not break. Therefore the presumption that the accident would not have occurred but for his own negligence does not arise from the fact that he stood so near the easting when the chain gave way that he was caught by its fall. The complaint is uncertain and indefinite in some of its allegations, but no criticism is made of it in these particulars.
The judgment is reversed, and the cause is remanded to the district court, with directions to overrule the demurrer.
Reversed and remanded.
Mb. Justice Smith and Mb. Justice Holloway concur.
|
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
This is a suit to substantiate an adverse claim, filed in the land office of the United States at Helena, by the plaintiffs, against an application for a patent theretofore filed in said office by the defendant. Plaintiffs claim the Bessie Brooks lode, located July 30, 1905, and defendant applied for a patent to the Lucky Bill lode claim, located in 1906. These lode claims are in conflict. The Lucky Bill claim as located is practically within the boundaries of the Bessie Brooks location. The cause was tried in the district court of Silver Bow county. The judge personally inspected the disputed ground. The court’s findings of fact and conclusions of law are as follows: “That all of the allegations of the complaint are true, save that plaintiffs’ original discovery shaft was and is only partially upon public domain included within their claim; they are owners and entitled to the possession of that portion only of the land within the exterior boundaries of their claim which is in conflict with the claim made by the defendant, and defendant did all acts necessary to make a valid lode location upon said ground, if said ground had been public domain not subject to plaintiffs’ claim at the time said acts were done; that all the allegations of the answer are true, save the allegation that defendant went upon public unoccupied mineral land and made a discovery, the allegation that defendant did all and every act necessary to make a valid location, which is untrue, in that he made his dis covery on land subject to and appropriated by plaintiffs’ prior location, and the allegation that plaintiffs’ claim is without right. And therefrom the court concludes that plaintiffs are entitled to recover herein against defendant, are the owners and entitled to possession of the ground in controversy here, and are entitled to decree as prayed for.” The ground really in dispute is a triangular strip between patented claims, and is about forty-seven and five-tenths feet wide on the west end, running about six hundred and thirty-five feet easterly to a point. It is bounded by the following patented claims, viz., on the north by the Four Johns, on the west by the Protection, and on the south by the Gustavus. Plaintiffs had judgment in accordance with the court’s conclusion of law, and from such judgment and an order overruling a motion for a new trial the defendant has appealed.
One of the allegations of the complaint is: ‘ ‘ That within sixty days thereafter [after discovery] said E. A. Nichols, W. F. Fitzgerald, and Charles F. Jones [the original locators] did sink a discovery shaft upon said lode claim to the depth of at least ten feet from the lowest rim of such shaft at the surface, which shaft was four feet by six feet by ten feet in depth, and which shaft cut said lode at a depth of at least ten feet below the surface, and there showed and exposed a well-defined crevice of quartz, containing valuable deposits.” The court found this allegation to be true, with the exception that the discovery shaft was only partially upon public domain. The testimony shows that the shaft was vertical, and was partly within and partly without the boundaries of the Bessie Brooks claim. Defendant claims in his brief that the evidence is insufficient to justify the decision of the court, but his specific grievance — the one which he argues — is that the finding that the plaintiffs’ shaft was sunk to a depth of ten feet, and the vein was shown at that depth within the boundaries of the claim, is not sustained by the evidence. We have searched the record for the evidence on these points, and find it is conflicting as to both. We are of opinion that there is a substantial preponderance of testimony on both points in favor of the plaintiffs, and, therefore, have no inclination to disturb tbe findings of the court below. (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6.)
But it is contended that the testimony shows that the original discovery shaft of the Bessie Brooks was partly in ground belonging to the Gustavus patented claim on the south. This is true, but it was also shown that the shaft was large enough so that a miner could work in that portion included within the Bessie Brooks location. This was sufficient. The fact that the shaft was partly -within the boundaries of the Gustavus is of no consequence, provided that portion which was within the boundaries of the Bessie Brooks was of such dimensions as that it was in reality a shaft sunk upon that ground. This court, in Butte etc. Min. Co. v. Barker, 35 Mont. 327, 89 Pac. 302, said: “It is by means of the discovery shaft or the crosscut that the locator manifests his intention. If he chooses to make such manifestation by means of a discovery shaft, he must do the work on the claim. The shaft must be sunk on the claim, for so the statute declares; and this is done in order that anyone interested may see the evidence of his good faith. And for the like reason, if he makes manifest his intention by means of a crosscut, it must be from an opening upon the claim; otherwise, the owner of the claim upon which such opening is situated may rightfully refuse admission to such crosscut to any and every one except only the locator; and, if the locator has only a license to use such opening, he may at any time deny admission to the locator himself. It cannot be that the requirements of the law are met by doing work over which the locator himself has no control, as a matter of right, and from which he may be excluded at any time by an entire stranger. In the present case, so far as the claim initiated by Barker is concerned, there were not any indications upon the surface of that claim that he had done anything beyond posting a notice of location and marking the boundaries of the claim, and it does not 'aid him to say that his declaratory statement describes the crosscut as starting from a shaft, the location of which may be gained from the courses and distances given. Any inspection of such crosscut involved a trespass upon a patented claim, the property of a third person.” The appellant cites the Barker Case, supra, in support of his contention that the discovery shaft must be sunk entirely within the limits of the ground subject to location. All that was decided in that case, upon this point, was that the development work must be done upon the claim. But in this case the work was done upon the claim. The law does not attempt to prescribe the extent of any dimension of the shaft, save the depth. There must be a shaft upon the claim, and it must be sunk ten feet deep. The locators of the Bessie Brooks claim complied with this direction. Anyone interested could see the evidence of this development work within the boundaries of the claim; the opening of the shaft was upon the claim; the locator, and anyone else who was interested in the matter, could go to the bottom of the shaft without getting upon or into the Gustavus ground and inspect the lead, or work there if necessary, without permission from any third person. (See Upton v. Larkin, 7 Mont. 449, 17 Pac. 728.)
Some exception is taken to the action of the court in admitting and rejecting evidence, but none of the evidence, admitted or rejected, is quoted in the brief, either in substance or otherwise.
It is also contended that the court erred in admitting in evidence the declaratory statement and amended declaratory statement of the Bessie Brooks location, but no argument is made in support of the contention, and we are unable from a cursory examination of the documents to determine what, if any, specific objections thereto might have been well taken.
It appears from one of the bills of exception found in the record that the defendant, during the course of the trial, in February, 1908, asked leave to file a supplemental answer alleging that the plaintiffs had neglected to do the representation work on the Bessie Brooks lode claim in the year 1907. The court refused to allow the supplemental answer to be filed, saying that it considered the matter immaterial, and the ruling is assigned as error. As hereinbefore stated, the Bessie Brooks location was made in 1905 and the Lucky Bill was located in 1906. The defendant claimed to have initiated no rights subse quent to 1906. No argument is found in the brief, either as to the materiality of the evidence sought to be introduced under the supplemental answer, or disclosing any abuse of discretion on the part of the court, and we therefore hold that there was no abuse of discretion.
The judgment and order of the district court of Silver Bow county are affirmed.
Affirmed.
Mr. Chief Justice Bbantly and Mr,. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for damages for a personal injury. At the time the injury occurred plaintiff was of the age of sixty-eight years. He had been engaged in farming and stockraising, and other pursuits requiring manual labor. The defendant is a merchant residing at Fallon, Custer county, where he keeps for sale a general stock of goods, wares, and merchandise, soliciting the patronage of the people residing in that vicinity and the public generally. The main room of his store building is seventy-five feet in length by twenty feet in width. Underneath is a cellar, reached by a cellar or stairway leading down from the storeroom, through an opening in the floor. This opening is covered by a flapdoor when the stairway is not in use. The room is fitted up with conveniences for displaying and selling wares to customers. Two parallel counters extend from the front most of the distance to the rear of the room, leaving an aisle or passageway along the middle. In the space beyond the end of the counter on the right to one entering from the front is a stove for heating purposes, around which in cold weather customers gather for warmth. The opening by which the cellar is reached is also in this space, along the side of the room in close proximity to both the stove and the end of the counter. When the stairway is in use, the flap is lifted and thrown back against the right side of the building. On March 31, 1905, plaintiff drove from his home to the store of defendant to purchase goods. On his arrival he entered by the front door. After alleging these facts in substance, the complaint proceeds: ‘ ‘ That he [plaintiff] approached the said defendant, who was standing in the center of the said storeroom, and greeted the said defendant and shook hands with him, and, being cold, advanced from the place where he was and from where the said defendant was standing, along the open public passageway in the said storeroom, to and in the immediate vicinity of the said stove for the purpose of being made warm by the heat from the said stove, and while so in the said store building by the permission and invitation of the said defendant for the purpose of transacting business with him, the said defendant had negligently and carelessly left the said cellar doorway open to the said cellarway, which was close to and in the immediate vicinity of the said stove and so close to the said stove that persons would necessarily, in proceeding to the said stove or going to the same for the purpose of being made warm, be likely to fall into the said open cellar door. The said defendant negligently and carelessly wholly failed to caution or warn this plaintiff that the said cellar doorway was open or dangerous, and this plaintiff not then knowing of the existence of the said cellar door, or that the same was open, approached the said stove, and, the said cellar door being then by the negligence of the said defendant left open and not in any manner protected, this plaintiff, in consequence thereof, fell through the said open, unprotected cellar doorway and was violently precipitated and thrown down into the said cellar, a distance of about ten feet, and thereby greatly injured and bruised upon his head, arms, and body, and had his right shoulder and the muscles and bones thereof broken and injured, and his right arm and hand injured and disabled, and in consequence thereof such injuries remain and now are permanent.” It is then alleged that the plaintiff has suffered damage by expenses incurred for medical attention, for anguish and pain, for loss of time, and the result of permanent disability in the sum of $3,000. Judgment is demanded for this amount.
The answer admits that the plaintiff fell into the eellarway as alleged, but denies that the injuries sustained were serious or resulted in permanent disability. It is alleged that the fall was the result of plaintiff’s own want of care and circumspection, and as a separate defense defendant charges contributory negligence. Plaintiff had verdict and judgment. Defendant has appealed from the judgment and an order denying him a new trial. The integrity of the judgment is assailed on several grounds.
1. The first contention made is that the complaint does not state a cause of action, in that it discloses the fact that the injury was caused by plaintiff’s own act, and it is nowhere alleged that he was at the time exercising reasonable care and circumspection, or that he was himself free from fault. Counsel invoke with confidence the rule laid down by this court in Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, that, if the complaint shows that the plaintiff’s own act was the proximate cause of his injury or proximately contributed thereto, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was at the time exercising ordinary care and circumspection. The rule declared in this .case has been repeatedly recognized by this court. (Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Nord v. Boston & Montana Con. C. & S. Min. Co. 30 Mont. 48, 75 Pac. 681; Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940.) It is based upon the obviously just principle that one who has brought injury upon himself by his own act cannot lay responsibility for it upon another unless he can allege and show that the act causing the injury was impelled by the apparent necessities of a perilous condition brought about by the negligence of such other person. It does not apply to cases where the plaintiff has been injured upon going into a place where he has a right to go, by some hidden or unknown cause, of the existence of which it is the duty of the person having control of the place to give him warning.
The facts alleged show that the plaintiff was not a mere licensee upon the defendant’s premises by his silent acquiescence. If this were so, defendant would not have owed him any duty, other than to refrain from doing him willful or wanton injury after being informed of his presence. (Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373; Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831.) He was there to purchase goods in response to an invitation, it matters not whether express or implied, extended to all persons in the vicinity and to the pub- lie generally, to go there for that purpose. To all such persons the defendant owed the duty to use ordinary care to have the premises safe, as well as to warn them of any hidden or lurking danger thereon. On this subject Mr. Thompson, in his work on Negligence (vol. 1, sec. 968), says: “On the contrary, the owner or occupier of real property is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if, through a neglect of this duty, they are, without negligence or fault of their own. injured by reason of any negligent defect therein, he must pay damages. The person so invited to come upon the premises of the other is entitled to assume that they will be in a reasonably safe condition. He must not expose them to hidden dangers of which they are not aware, but of which he is, or may be, by the exercise of reasonable care, aware, especially if the danger is in the nature of a trap. To bring a ease within this rule, it is not at all necessary that the person invited to come upon the premises should have had any business that would or would not be of any benefit to the owner or occupier.” Again the same author states the rule thus: “The principle is that there is an implied invitation to members of the public seeking to do business with the owner or occupier of such building or grounds, such as he invites the public to do with him, to come into his building or upon his premises for that purpose'; and therefore that he is under a legal obligation to exercise ordinary or reasonable care to the end of making his premises safe for their protection — in other words, for the protection of his customers. ’ ’ (Section 985.)
Judge Cooley, in the third edition of his work on Torts (Yol. 2, p. 1259), says, that when one “expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” In Carleton v. Franconia Iron & Steel Co., 99 Mass. 216, the court, through Mr. Justice Gray, used this language: “The owner or occupier of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for any injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of.” (Sweeny v. Old Colony & Newport R. R. Co., 10 Allen (Mass.), 368, 87 Am. Dec. 644.) The precaution necessary to be observed extends to unguarded trapdoors in places where customers usually or may lawfully go (Moore v. Korte, 77 Mo. App. 500; Engle v. Smith, 82 Mich. 1, 21 Am. St. Rep. 549, 46 N. W. 21; Massey v. Seller, 45 Or. 267, 77 Pac. 397; Bennett v. Louisville & Nashville R. R. Co., 102 U. S. 577, 26 L. Ed. 235), as well as to other sources of danger, such as caustic or other poisonous chemicals with which customers or their property may be brought in contact through lack of knowledge (Beinhorn v. Griswold, 27 Mont. 79, 94 Am. St. Rep. 818, 69 Pac. 557, 59 L. R. A. 771; Atlanta Cotton Seed Oil Mills v. Coffey, 80 Ga. 145, 12 Am. St. Rep. 244, 4 S. E. 759). Where the situation is such that the source of the danger is not or cannot be guarded, the duty to exercise care to warn, such as is reasonably necessary, is imperative, and for failure in this regard the owner must respond in damages. (1 Thompson on Negligence, sec. 993; Brosnan v. Sweet ser, 127 Ind. 1, 26 N. E. 555.)
Recurring to the question at issue, it appears with certainty: That the plaintiff was at defendant’s place by invitation as a customer, to purchase goods; that he was in ignorance of the existence of the cellarway; that it was in close proximity to a place to which customers were expected to go; that the defendant was standing by and had notice of plaintiff’s presence; that the cellarway was open and unguarded; that defendant failed to notify him of this fact. This, together with the preceding statement of facts showing the surrounding circumstances, was sufficient to show a duty on defendant’s part to warn, by neglect of which he put himself in the wrong, and therefore upon his defense. Plaintiff was not under obligation to keep constant watch to avoid danger, because he could act upon the assumption that defendant had done his duty.-
2. It is earnestly contended that the evidence is insufficient to sustain the verdict, both because it fails to show that the defendant was at fault, and because it shows affirmatively that the plaintiff was guilty of contributory negligence; but this contention must be overruled. The evidence on the part of plaintiff shows: That, on arriving at the store after driving from his home, he entered by the front door; that, the day being cold, he was bundled up with wraps; that he proceeded along the main aisle or passageway to the end of the counter to reach the stove to warm himself; that he had made use of the stove before for this same purpose and had observed others do it; that he met the defendant at the end of the counter on his right, and shook hands with him; that defendant was standing immediately between the end of the counter and the cellarway and knew that the latter was open; that he did not warn the plaintiff; that that portion of the store was somewhat dark; that plaintiff could not see distinctly because he had come from the light into the darkness, and his eyes had not become accustomed to the change; that he passed on immediately to reach the stove and, not seeing the cellarway, fell into it. The defendant testified that, as he shook hands with the plaintiff, he warned him that the cellarway was in use and open, but that he paid no attention to him. The questions whether the defendant was guilty of negligence in failing to warn the plaintiff, or whether in fact he did warn him, and whether the plaintiff was himself guilty of contributory negligence, taking into consideration all the circumstances, were for the jury, and their finding thereon must be held conclusive.
Some contention is made that the evidence does not show that the plaintiff suffered any serious injury. His testimony tended to show that his shoulder was dislocated, and that he has since been disabled so far that he cannot attend to business of any character, and that his disability has been attended by a great deal of physical pain. It was a matter for the jury to deter mine what amount would reasonably compensate him for the condition brought about by the accident. The comparatively small amount of the verdict ($941.70) is not unreasonable.
3. At the close of plaintiff’s case defendant’s counsel moved the court to withdraw from the jury the question of damages for loss of earning capacity, for that no sufficient evidence, or any evidence, had been introduced upon which an estimate could be based. This motion was denied. It is argued that this action of the court prejudiced the defendant. There was in fact no-evidence offered on this subject; the only statement made by the plaintiff being that he had not been able since the accident to pursue his occupation of farming and stockraising, but whatever work he had had done he had been compelled to hire a man to do it. Among the instructions we find the following: “You are instructed in this case that, the plaintiff having failed to produce any evidence in relation to the difference between his earning capacity prior to the accident and his earning capacity thereafter, you cannot consider his loss of earning capacity in reaching a verdict in this case.” While it may be conceded that the motion should have been granted, the instruction quoted accomplished the purpose of the motion fully, and the defendant suffered no prejudice. If he was liable at all, the plaintiff was entitled to have damages awarded to him such as would fairly compensate him for all the detriment proximately caused by the injury suffered. (Revised Codes, see. 6068.) One of the' elements to _be taken into consideration was the disability to-pursue his usual vocation. This- element does not include compensation for loss of earning capacity. In a given ease the plaintiff’s earning capacity may be so small as to be a negligible-element in making up the estimate, yet the destruction of his capacity to pursue his established course of life is nevertheless a deprivation for which he is entitled to compensation.
4. Contention is made that the court erred in refusing to submit several instructions requested. Upon careful attention to the several assignments in this connection, we conclude that no prejudice was done. For example, request was made for the following: “ (35) If you believe from the evidence in this case that defendant maintained beneath his storeroom a cellar for the storage of goods used in the conduct of his business, and as a means of access to and exit from said cellar maintained the cellarway in question, and you further believe that the said cellarway was at the time of said accident open in the usual course of defendant’s business, for the purpose of obtaining therefrom goods stored therein, then the existence of such opening cannot be considered of itself as negligence.” There can be no doubt that it is not negligence per se for a property owner to maintain a eellarway, as did the defendant in this case, for use in conducting his business, even though, when open and unguarded, it might be considered a trap. (Accousi v. Stowers Furniture Co. (Tex. Civ. App.), 87 S. W. 861; Swanson v. Boutell, 95 Minn. 138, 103 N. W. 886; and cases heretofore cited.) In such case 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 (29 Cyc. 453; 1 Thompson on Negligence, sec. 970) • and, when such an opening is in use, to warn his customers of this fact or to provide suitable guards for it. The court might very well have submitted the proposed instruction. It did instruct the jury, however, that the defendant was bound only to the use of ordinary care, and that if they found that he had discharged the obligation to warn the plaintiff that the cellarway was open and in use, as he shook hands with him upon his approach to\the stove, they should find for the defendant. In view of this fact there seems to be no reason for inference that the jury could or did understand that the mere existence of the trapdoor convicted the defendant of negligence.
Let the judgment and order be affirmed.
Affirmed.
Ma. Justice Smith and Me. Justice Holloway concur.
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JUSTICE TRIEWEILER
delivered the opinion of the court.
¶1 The Department of Public Health and Human Services (DPHHS) petitioned the District Court for the First Judicial District in Broad-water County to terminate the parental rights of Christina Osterloth or, alternatively, to grant long-term legal custody of Christina’s children, T.Z. and J.Z., to DPHHS with the right to assign guardianship. The District Court granted DPHHS long-term legal custody of T.Z. and J.Z. with the right to assign guardianship to the children’s grandmother. Christina appeals the District Court’s order. We affirm the order of the District Court.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court err when it failed to make specific find-
ings to support its award of long-term custody of T.Z. and J.Z. to DPHHS with the right to assign custody to the children’s grandmother?
¶4 2. Did the District Court err by deciding to award long-term legal custody without requiring a separate petition limited to that issue?
FACTUAL BACKGROUND
¶5 Christina Osterloth is the mother of two children, T.Z. and J.Z. T.Z. was born in March 1985 and J.Z. was born in April 1986. The children’s father is deceased.
¶6 On November 1,1996, the District Court found that T.Z. and J.Z. were youths in need of care, and granted the Broadwater County Department of Health and Human Services temporary custody of the children. Between 1996 and the time of this appeal, T.Z. and J.Z. have lived intermittently with both their mother and their grandmother, Phyllis Potter, under the supervision of DPHHS.
¶7 On August 19,1999, the State petitioned the District Court for an order terminating the parental rights of Christina, or in the alter-ative, an order granting long-term custody of the children to DPHHS with the right to assign guardianship to Potter.
¶8 Following a hearing, the District Court filed its findings of fact, conclusions of law, and order on November 3,1999.The District Court did not terminate Christina’s parental rights; rather, the court granted DPHHS long-term custody with the right to assign custody to Potter. The District Court found that:
[Christina] is currently under a ten year Department of Corrections supervised sentence as of July 14, 1999. Christina has two felony drug convictions on her record and is currently attending Alcoholics Anonymous (AA) meetings.
In October 1996, a social worker for the Department of Family Services found [J.Z.] sitting in Christina’s front yard. [J.Z.] indicated that his mother had locked up the house and was on an extended trip with her boyfriend. The children were left to fend for themselves. The children were under the “supervision” of [a] 17-year-old male who had pending drug charges against him in Helena, Montana. The social worker noted that the house was filthy, with beer cans strewn around and that the children had not attended school that week.
It clearly appears to this Court that Christina has failed in her treatment plan. On February 11,1999, she failed a drug test at St. Peter’s Community Hospital.... It should be noted that Christina did pass a subsequent drug screen on July 6,1999.
The Court must also note that, of the four people residing in Christina’s house in October 1996, all four of them have been since convicted of felonies.
The Court notes that the past is the best predictor of the future. Christina has been given many chances to straighten herself out and retain custody of her children. However, she is unable to focus on anything other than her own needs, be they emotional or chemical. She was warned by Wendy Cook that this last treatment plan was her last chance but despite that she has failed to comply with the treatment plan and has continued to attempt to sabotage her children’s stability and peace of mind. The Court has no trouble at all in entering a finding that Christina is unable to distinguish between the children’s best interests and her own perceived interests.
The District Court also found that since J.Z. began living with Potter he became involved in the community and improved in school; and that J.Z. expressed a desire to continue living with Potter. With respect to T.Z. the District Court found that, although Christina was overtly manipulating T.Z. to resist placement with Potter, T.Z. improved in school and became involved in the community. The District Court then stated:
The Court finds that the continuation of the parent/child legal relationship will likely result in continued abuse or neglect if the children are returned to Christina, and that the conduct and condition of Christina renders her unfit, unable and unwilling to give the children adequate parental care.
Nevertheless, the District Court did find that “it would be in the best interest of the children if their mother were allowed to visit with them, but only as directed and determined by the Department of Public Health and Human Services.”
¶9 Based on these findings the District Court granted DPHHS long-term legal custody of J.Z. and T.Z. The District Court also granted DPHHS the right to assign guardianship of J.Z. and T.Z. to Potter. Christina appeals.
STANDARD OF REVIEW
¶10 We review a district court’s conclusions of law to determine whether they are correct. In re J.N. and A.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11. We review a district court’s findings of fact to determine whether the court’s findings are clearly erroneous. In re J.N., ¶ 11. A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehended the effect of the evidence; or if, after reviewing the record, this Court is left with a definite and firm conviction that the district court made a mistake. In re J.N., ¶ 11.
ISSUE 1
¶11 Were the District Court’s findings sufficiently specific to support its award of long-term custody of T.Z. and J.Z. to DPHHS with the right to assign custody to the children’s grandmother?
¶12 Christina contends that when the District Court granted DPHHS long-term legal custody, it did so based on evidence offered in support of the petition to terminate parental rights and that there was insufficient evidence to support long-term custody. She argues that the District Court based its decision on law applicable to termination of her parental rights, not § 41-3-412, MCA, the statute for long-term custody.
¶13 The State responds that the youth in need of care statutes give the district court broad discretion to act in the children’s best interest and to make certain that children who are unable to return to their parents do not remain in temporary foster care.
¶14 A natural parent’s right to custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures. In re J.N., ¶ 12. However, if the State follows fundamentally fair procedures, the State can divest a parent of custody. Section 41-3-406(5), MCA, provides in part:
Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following:
(b) termination of the parent-child legal relationship and either; [or]
(c) long-term custody pursuant to 41-3-412;
The procedure for termination of the parent-child legal relationship is set forth in § 41-3-601, MCA, et. seq. The procedure for long-term custody is set forth in § 41-3-412, MCA, which provides in part:
(6) If the permanency plan hearing results in a finding that reunification of the child with the child’s parent or guardian is not in the best interests of the child, a subsequent petition filed must be one of the following:
(c) long-term custody of a child if the evidence demonstrates by a preponderance of the evidence, which is reflected in specific findings by the court, that:
(i) the child has an emotional or mental handicap that is so severe that the child cannot function in a family setting and the best interests of the child are served by placement in a residential or group setting;
(ii) the child is at least 16 years of age and is participating in an independent living program and that termination of parental rights is not in the best interests of the child;
(iii) the child’s parent is incarcerated and circumstances, including placement of the child and continued, frequent contact with the parent, indicate that it would not be in the best interests of the child to terminate parental rights of that parent;
(iv) the child is in a group of siblings, at least one of whom meets the requirements of subsections (6)(c)(v)(A) through (6)(c)(v)(D), and the best interests of the child will be met by continued placement in the sibling group in long-term foster care; or
(v) the child is at least 12 years of age and meets the following criteria:
(A) the child has been adjudicated a youth in need of care;
(B) the department has made reasonable efforts to reunite the parent and child, further efforts by the department would likely be unproductive, and reunification of the child with the parent or guardian would be contrary to the best interests of the child;
(C) termination of parental rights to the child is not in the child’s best interests; and
(D) the child has been in a placement in which the foster parent has committed to the long-term care and to a relationship with the child, and it is in the best interests of the child to remain in that placement.
(Emphasis added.)
¶15 The narrow issue in this case is whether the District Court’s findings were sufficiently specific pursuant to § 41-3-412(6)(c)(v), MCA. Christina does not contend that the District Court’s findings are erroneous.
¶16 The District Court found that J.Z. and T.Z. were youths in need of care on November 1, 1996. The District Court found that DPHHS developed treatment plans for Christina; that Cook warned her that the last treatment plan was her last chance; and that “Christina has been given many chances to straighten herself out and retain custody of her children.” The District Court also found that “continuation of the parent/child legal relationship will likely result in continued abuse or neglect if the children are returned to Christina, and that the conduct and condition of Christina renders her unfit, unable and unwilling to give the children adequate parental care.” These findings are sufficiently specific with respect to § 41-3-412(6)(c)(v)(A) and (B), MCA, to satisfy the “specific findings” requirement of § 41-3-412(6)(c), MCA.
¶17 Although the District Court found that it was not in J.Z. and T.Z.’s best interest to live with Christina it found that “it would be in the best interest of the children if their mother were allowed to visit with them.” This finding is sufficiently specific with respect to § 41-3-412(6)(c)(v)(C), MCA.
¶18 Finally, the District Court found that since J.Z. and T.Z. began living with Potter, they improved in school and became more socially involved. The District Court also found that Potter’s home was thoroughly reviewed by the State of Idaho and that Potter is willing to act as the children’s guardian. This finding is sufficiently specific with respect to § 41-3-412(6)(c)(v)(D), MCA. Accordingly, we hold the District Court’s findings were sufficiently specific to support its award of long-term custody of T.Z. and J.Z. to DPHHS with the right to assign custody to the children’s grandmother, Potter.
ISSUE 2
¶ 19 Did the District Court err by deciding to award long-term legal custody without requiring a separate petition limited to that issue? ¶20 Christina contends that following the November 1999 hearing, the State failed to file a subsequent petition púrsuant to § 41-3-412(6), MCA, and that she was, therefore, denied sufficient notice. However, the language of § 41-3-412(6), MCA, which states “a subsequent petition filed must be one of the following,” must be read in conjunction with the language of § 41-3-412(1), MCA, which states “[t]he permanency plan hearing may be combined with a hearing that is required in other sections of this part.”
¶21 In this case, since the permanency hearing was combined with the termination hearing, the petition for long-term legal custody was not filed subsequent to the November 29, 1999, hearing. The State’s petition was for termination of parental rights or in the alternative, for long-term legal custody. Therefore, § 41-3-412(6), MCA, does not require that the State’s petition for long-term legal custody be filed subsequent to the hearing. The State filed its petition for long-term legal custody of T.Z. and J.Z., which is permitted pursuant to § 41-3-412(c), MCA, at the same time that it filed its petition to terminate Christina’s parental rights on August 19,1999. The District Court held a combined hearing on November 29,1999. Therefore, the alternative petition provided Christina with sufficient notice of the issues that would be raised at the hearing. We hold that the District Court did not err when it awarded long-term legal custody without requiring a separate petition limited to that issue.
¶22 Accordingly, we affirm the judgment of the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON and GRAY concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Guaranty National Insurance Company (Guaranty) appeals from an order issued by the Eighteenth Judicial District Court, Gallatin County, granting summary judgment in favor of Charles K. Watters and Janet M. Watters (Watters), and denying its cross-motion for summary judgment.
¶2 We affirm in part, reverse in part, and remand for further proceedings.
¶3 Guaranty has raised two issues which we restate as follows:
1. Once clear liability was established and damages undisputedly exceeded policy limits, did Guaranty violate Montana’s Unfair Trade Practices Act by conditioning the payment of policy limits on the Watters’ agreement to provide a full and final release of all liability in favor of its insured?
2. Did Guaranty have a reasonable basis in law or in fact for contesting the Watters’ claim, and therefore may not be found liable for violating Montana’s Unfair Trade Practices Act?
Factual and Procedural Background
¶4 Generally, the underlying facts are not in dispute and have been stipulated to pursuant to a November 2, 1998 judgment issued by the District Court.
¶5 On October 31, 1993, the Watters suffered serious physical injuries following a collision between their car and one driven by Robert O. Moore (Moore), near Bozeman, Montana. At the time, Moore was insured by Guaranty for the statutory mandatory minimum amounts of $25,000 for bodily injury per person, $50,000 for bodily injury per accident, and $10,000 for property damage.
¶6 Guaranty investigated the accident and determined that Moore was at fault and that the Watters’ personal injury claims entitled them to Moore’s policy limits of $50,000. By January 4, 1994, medical bills for the Watters had reached approximately $90,000. Ultimately, the Watters incurred in excess of $100,000 in medical bills.
¶7 Within one week of the accident, on November 5, 1993, Guaranty informed Moore that “should the claimant pursue recovery through a lawsuit, the possibility does exist that a judgment could be awarded against you in excess of your insurance coverage.” Guaranty further informed Moore that he could obtain an attorney at his own expense to represent him regarding “any excess exposure which now exists or may exist in the future.” Guaranty emphasized its insurance policy provision that “settlement of any claim or suit remains within the dis cretion of our company.” This notice to Moore was followed up in a letter, dated February 17, 1994, in which Guaranty again advised Moore that Guaranty would not be liable for a judgment in excess of policy limits, and that Moore may wish to retain counsel at his expense, recognizing that “you or your attorney may disagree with the approach taken by Guaranty National.”
¶8 With liability and entitlement to the policy limits clearly established, the Watters, in a December 23, 1993 letter, demanded payment of Moore’s bodily injury policy limits of $50,000. The Watters would not, however, agree to execute a full and final release of all liability in favor of Moore. Counsel for Watters also notified counsel for Guaranty that “any attempt to withhold payment to force a release would bean Unfair Claims Settlement Practice.” Guaranty refused to pay the policy limits without a full and final liability release.
¶9 On January 5, 1994, the Watters filed suit for personal injuries against Moore in the Eighteenth Judicial District Court. In his February 22, 1994 Answer, filed by counsel for Guaranty on his behalf, Moore admitted fault for the accident. By this time, both Guaranty and the Watters realized that Moore had no assets to contribute to an excess judgment. During this time, counsel for Watters reached a claim settlement with Guaranty for $9,161.07 under Moore’s $10,000 property damage coverage. This settlement, however, apparently did not involve an absolute liability release that affected the bodily injury coverage portion of Moore’s policy with Guaranty.
¶10 In an exchange of letters of negotiation during 1994, Guaranty continued to offer to pay the policy limits, but not unless the Watters agreed to execute a full and final liability release in favor of Moore. Throughout this period, Guaranty asserted that its primary obligation was to protect the interests of its insured. Guaranty informed the Watters that if it paid them Moore’s policy limits, it would no longer have an obligation to defend Moore in the lawsuit. Moore’s policy with Guaranty stated that “[o]ur payment of the limits of liability ends our duty to defend or settle, but the tender of the limits of liability before a judgment or settlement does not relieve us of our duty to defend.” Under the same Part, the policy provided that “[w]e will defend any such suit at our own expense, with counsel of our choice, or, as we deem appropriate, we may settle any claim or suit.”
¶11 In turn, the Watters offered to accept $49,950 — $50 below the policy limits — thereby allowing Guaranty to continue its obligation to defend its insured, yet still make a prompt payment to the Watters. The Watters further offered that they would execute a partial release to the extent of this payment by Guaranty.
¶12 Guaranty rejected this offer, and reaffirmed that a full and final release must be agreed to before any policy proceeds would be released to the Watters. Guaranty also asserted that paying the policy limits without a full release would essentially place it in the role of funding the Watters’ litigation against Moore, which would be an act of bad faith. Guaranty did, however, suggest two other options: (1) depositing the $50,000 with the court pending a declaratory judgment action to determine the respective party’s rights and obligations; and (2) deposing Moore so that the Watters could be satisfied that he did not have sufficient assets to pay any excess judgment against him.
¶13 On October 14, 1994, the Watters filed suit against Guaranty, alleging breaches of Montana’s Unfair Trade Practices Act (UTPA), under § 33-18-201(6) and (13), MCA. Guaranty asserted in its Answer that, due to Moore’s and his attorney’s demand that Guaranty secure a full release for Moore, its primary obligation was to protect his interests and provide him with a defense in the underlying lawsuit. The Answer also included an admission that Moore was “responsible for reasonable damages proximately resulting from the accident.”
¶14 By December of 1994, Guaranty retained an attorney to defend Moore in the personal injury lawsuit pursuant to its contractual obligations under Moore’s policy. Consequently, Moore, through his counsel, demanded that Guaranty continue to defend Moore until he received an unconditional release. Contrary to Guaranty’s October 14th Answer, however, it is unclear that Moore ever made a demand for an absolute release prior to this time.
¶15 The Watters filed for summary judgment in their UTPA claim against Guaranty on January 25, 1995. Guaranty filed a cross-motion for summary judgment on March 13, 1995.
¶16 On March 8, 1995, the policy limits of $50,000 were “tendered” by Guaranty to the court in the Watters’ personal injury lawsuit against Moore. At this time, counsel for Moore also asserted that Moore was considering bankruptcy, hoping to discharge any judgment that exceeded the policy limits. The Watters were also informed that the $50,000 policy limits may be exposed to demands by other creditors should the bankruptcy action proceed. Although denied at oral argument before this Court, the record indicates that counsel for Moore believed that Guaranty was willing to pay the costs and fees associated with Moore’s bankruptcy, and testified to this fact in his deposition.
¶17 On May 11, 1995, approximately one-and-a-half years after the accident, the Watters executed a full and final liability release in favor of Moore, reserving any and all claims against Guaranty. The Watters asserted they took this action because they were in financial need due to medical creditor claims, as well as the uncertainty presented by Moore’s potential action in bankruptcy. On May 12, 1995, the parties signed a stipulation distributing the policy limits of $50,000 plus interest to the Watters.
¶18 On June 7, 1996, the District Court granted the Watters’ motion for summary judgment and denied Guaranty’s cross-motion for summary judgment. In doing so, the court determined that Guaranty had engaged in an unfair claims settlement practice in violation of UTPA, in that it had a “duty to release the funds in this case.” The court agreed with the Watters’ argument that UTPA requires insurance carriers to effectuate prompt and fair settlements, and this requirement “takes precedence over the private contractual agreement to defend between a carrier and its insured.” The court also relied on a similarly decided case from Massachusetts, Thaler v. American Ins. Co. (Mass.App.Ct. 1993), 614 N.E.2d 1021. With liability established, the only issue remaining for determination at trial was damages.
¶19 On November 2, 1998, the court entered a judgment against Guaranty in favor of the Watters for $110,000, pursuant to the parties’ stipulation on damages. The parties agreed to stipulate to this sum, pending the outcome of this appeal, in order to avoid trial if remand was necessary. Guaranty placed this sima with the District Court. This cause was heard on oral argument October 14, 1999.
Standard of Review
¶20 This Court reviews an order granting summary judgment de novo under Rule 56, M.R.Civ.P, by utilizing the same criteria as the district court. See Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663. Summary judgment is a remedy which should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P. The procedure should never be substituted for trial if a material factual controversy exists. See Payne Realty v. First Sec. Bank (1993), 256 Mont. 19, 24, 844 P.2d 90, 93.
¶21 Here, the parties have stipulated to all material facts. Therefore, we will review this matter to determine whether the Watters are entitled to judgment as a matter of law. On review, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. See Payne, 256 Mont. at 24-25, 844 P.2d at 93. Further, we have held that this Court may reverse a district court’s order granting summary judgment and order it to enter summary judgment in favor of the other party when there are no issues of material fact and all of the facts bearing on the issues are before the court. See Kenner v. Moran (1994), 263 Mont. 368, 375, 868 P.2d 620, 624.
¶22 Accordingly, if we determine that as a matter of law Guaranty violated UTPA as alleged and subsequently determined by the District Court, summary judgment in favor of the Watters will be proper. The stipulated judgment should then be entered as final in their favor. If, on the other hand, we determine subject to our de novo review that, as a matter of law, Guaranty did not violate UTPA when it refused to pay the policy limits to the Watters, or that its affirmative defense excuses any violation, this matter will be remanded for dismissal of the stipulated judgment.
DISCUSSION
¶23 The focal issue presented here posed a Hobson’s choice for each party.
¶24 Guaranty had to choose between either making payment of policy limits to the Watters without obtaining a full and final liability release — which allegedly would have given rise to a bad faith or breach of contract claim by its insured — or withholding payment pending the outcome of litigation, which potentially would have given rise to an unfair trade practice claim by the Watters. As case law from other jurisdictions makes clear, Guaranty is by no means the first insurer to find itself in this catch-22. See, e.g., Lehto v. Allstate Ins. Co. (Cal.Ct.App. 1994), 36 Cal.Rptr.2d 814, 823; Gallagher v. Allstate Ins. Co. (N.D.W.Va. 1999), 74 F.Supp.2d 652, 656.
¶25 Relying on our decision in Juedeman v. National Farmers Union (1992), 253 Mont. 278, 833 P.2d 191, Guaranty chose the latter course of action, and, as predicted, the Watters brought this unfair trade practice claim. Guaranty asserts that by following the clear rule set forth in Juedeman, at the time, it did not act in bad faith in denying the Watters’ claim because it had, pursuant to § 33-18-242(5), MCA, a “reasonable basis in law” for the difficult choice it made, and in good faith considered its insured’s interests.
¶26 The Watters’ choices were equally unenviable. As innocent parties, the Watters were required to choose either incomplete compensation for severe and permanent injuries caused by another person who had admitted full liability, or proceed into potentially prolonged litigation without the resources necessary to fulfill their current obligations resulting from their injuries. Indeed, this dispute has now entered its sixth year and from the record it is clear that the Watters suffered potentially noncompensable damage to their economic well being, once medical-bill creditors pursued payment for the debts incurred. Further, agreeing to such a full and final release could have interfered with their own insurer’s subrogation rights, and thereby jeopardized the Watters’ rights to underinsured coverage pursuant to the terms of their policy. Equally clear, is the fact that staving off such damages factored into the Watters’ agreement to release Moore in exchange for policy limits in May of 1995. Either choice seemingly defies the legal principles that for every wrong there is a remedy, see § 1-3-214, MCA; STC, Inc. v. City of Billings (1975), 168 Mont. 364, 372, 543 P.2d 374, 378, and that a tortiously injured party should be returned to his or her rightful position that “the party would have attained had the wrong not occurred.” Butler v. Germann (1991), 251 Mont. 107, 110, 822 P.2d 1067, 1069.
¶27 Regardless of the outcome here, this case requires that we clarify prior case law that does not squarely provide a clear rule upon which parties such as Guaranty and the Watters may rely under these specific factual circumstances. Namely, at the behest of the parties, we must reconcile today any conflict between our decisions in Juedeman and Ridley v. Guaranty Nat. Ins. Co. (1997), 286 Mont. 325, 951 P.2d 987, in the context of Montana’s Unfair Trade Practices Act, which governs the business of insurance, as well as public policy under Montana’s Motor Vehicle Safety-Responsibility Act. In doing so, we must determine several corollary legal issues pertaining to what constitutes bad faith on the part of insurers in Montana. Thus, we proceed to the issues.
ISSUE 1
Once clear liability was established and damages undisputedly exceeded policy limits, did Guaranty violate Montana’s Unfair Trade Practices Act by conditioning the payment of policy limits on the Watters’ agreement to provide a full and final release of all liability in favor of its insured?
¶28 As argued by both parties, this issue must first be properly cast within the framework of Montana’s Motor Vehicle Safety-Responsibility Act. Specifically, under § 61-6-103, MCA, all owners and operators of motor vehicles must carry mandatory liability insurance, in the minimum amounts of $25,000 “because of bodily injury to or death of one person in any one accident;” $50,000 “because of bodily injury to or death of two or more persons in any one accident,” and $10,000 “because of injury to or destruction of property of others in any one accident.” See § 61-6-103(2)(b)(i)-(iii), MCA. Under this Act, the “liability of the insurance carrier with respect to the insurance required by this part becomes absolute whenever injury or damage covered by the motor vehicle liability policy occurs.” See § 61-6-103(6)(a), MCA (emphasis added). This standard of absolute liability does not apply to insurance coverage that exceeds the mandatory minimum limits. See § 61-6-103(8), MCA.
¶29 Further, we have held that “[i]t is clear that the mandatory liability insurance law seeks to protect members of the general public who are innocent victims of automobile accidents,” and that § 61-6-301, MCA, “was enacted for the benefit of the public and not for the benefit of the insured.” Iowa Mut. Ins. Co. v. Davis (1988), 231 Mont. 166, 170-71, 752 P.2d 166, 169. See also Ridley, 286 Mont. at 335, 951 P.2d at 993 (citingloica Mutual and interpreting UTPA, subsection (6) of § 33-18-201, MCA, as assuring prompt payment of damages for which an insurer is clearly obligated).
¶30 The insurance policy at issue here provided only the statutory minimum amounts of insurance. Accordingly, the discussion and holdings herein are limited by the foregoing, and specifically limited to those claims for damages brought by a third-party claimant against a clearly liable party and his or her automobile liability insurer, and only for the mandatory coverage limits required under § 61-6-103(2), MCA.
A. Defining “Settlements” under UTPA
¶31 In this matter, a preliminary battle of semantics is inevitable. Subsection (6) of § 33-18-201, MCA, provides that no insurer may “neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” The term “settlement” is not defined under UTPA, or under statutory provisions governing motor vehicles or the insurance trade in Montana.
¶32 According to Guaranty’s version of the insurance trade’s lexicon, “payment” of policy limits is not a “settlement” unless the third-party claimant executes a full and final release of all liability in favor of the insured. In support of its position, Guaranty relies on Juedeman, where this Court concluded that “without an agreement to release, there is no offer for settlement,” and consequently no viable claim of bad faith against the insurer for refusing such an offer, under § 33-18-201(6), MCA. Juedeman, 253 Mont. at 281, 833 P.2d at 193 (citing Thompson v. State Farm Mut. Auto. Ins. Co. (1973), 161 Mont. 207, 219-20, 505 P.2d 423, 430).
¶33 In Thompson, from which we derived this rule, we explained that even an insurance company’s refusal of a claimant’s offer of a covenant not to sue could not be construed as a bad faith refusal of a “settlement offer.” We stated that “[h]ad State Farm accepted that offer, it would not have been protecting Thompson [its insured] under the circumstances.” Accordingly, no “offer of settlement” was ever made by the third-party claimant. Thompson, 161 Mont. at 219, 505 P.2d at 430.
¶34 Guaranty also directs our attention to other jurisdictions, which also purportedly conclude that a full and final release of an insured is the sine qua non of a “settlement.” See, e.g., Lazaris v. Metropolitan Property & Cas. Ins. Co. (Mass. 1998), 703 N.E.2d 205, 207 (stating that “to pay without a release is not a settlement” and “settlement typically involves the ‘release or termination of further claims against the tortfeasor’ ”) (citations omitted); Trinity Universal Ins. Co. v. Bleeker (Tex. 1998), 966 S.W.2d 489, 491(stating that under the common law “Stowers” doctrine, a settlement demand must propose to release the insured fully in exchange for a stated sum of money).
¶35 Under the facts here, according to Guaranty, by definition no “settlement” was ever proffered from the Watters’ side of the negotiation table. Thus, as a matter of law Guaranty could not have violated UTPA, under § 33-18-201(6), MCA, by flatly refusing any overtures of payment that did not provide an absolute release of all liability. Rather, Guaranty’s argument suggests that under the holding in Juedeman, the party that should shoulder the blame for not effectuating a prompt settlement is the Watters, not Guaranty, because they are the ones who refused the only legitimate “settlement” offer: policy limits in exchange for a full and final release.
¶36 Guaranty’s position overlooks one minor facet of this matter: Guaranty promptly reached a “settlement” with the Watters in January of 1994. Guaranty agreed to pay the Watters $9,161.07 for property damage within Moore’s mandatory minimum $10,000 policy limits. This “settlement” was apparently achieved without the Watters executing a full and final release of all further liability in Moore’s favor, or Guaranty balking at such a settlement.
¶37 That circumstances may arise where a “settlement” may be reached without a full and final release of all liability, as the property “settlement” suggests, comports with our discussion of this term in Ridley. In that case, the appellant, Ridley, contended that Guaranty was liable for medical expenses caused by its insured when liability was reasonably clear, without regard to whether a final settlement was or could be agreed upon, because subsection (6) of § 33-18-201, MCA, by its plain language, makes no reference to a final settlement of all claims, but refers instead to “settlements.” Ridley, 286 Mont. at 333, 951 P.2d at 991. We agreed with Ridley, and concluded that both subsections (6) and (13) of § 33-18-201, MCA, by their terms imposed an obligation to make payments for medical expenses in advance of final settlement. Ridley, 286 Mont. at 334, 951 P.2d at 992. We further concluded that the language of § 33-18-201(6), MCA, did not impose a requirement that all disputes or all claims be resolved between two parties. Ridley, 286 Mont. at 334, 951 P.2d at 992.
¶38 We also noted in Ridley that the clear language of subsection (13), under § 33-18-201, MCA, provides that one auto accident or “occurrence” may produce more than one claim against an insurer, which in turn may produce more than one settlement under more than one portion of “the insurance policy coverage.” See § 33-18-201(13), MCA (prohibiting the failure to “promptly settle claims, if liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage”) (emphasis added). See also 46A C.J.S. Insurance § 1351 (1993) (stating that a settlement with respect to one item of loss does not preclude recovery on the policy with respect to other items, and “[a]n insurance company by settling one claim arising from an occurrence, may still deny coverage as to another claim arising from the same occurrence”). As explained above, this was precisely the nature of the “settlement” for property damage under Moore’s policy, which partially discharged his obligation to the Watters for damages arising from the one accident without a full and final release of all other liability.
¶39 The foregoing reasoning in Ridley accords with the general, governing principles of contract law from which the law of settlements is derived. A release, as a matter of law, is nothing more than an accord and satisfaction, or, one of several ways in which an obligation, contractually, may be discharged or “settled” for less than or for something different than what is owed. See § 28-1-1401 and 1402, MCA (describing accord and satisfaction); Hetherington v. Ford Motor Co. (1993), 257 Mont. 395, 401-402, 849 P.2d 1039, 1043-44 (distinguishing executory accord from substituted contract). See also § 28-1-1502 (describing kinds of novation); § 28-1-1601 (describing extinction of an obligation by a release); 66 Am. Jur.2d Release § 1 (1973) (distinguishing between a release and a “settlement,” and providing that a settlement often involves a “payment, a release, a covenant not to sue, a promise to discontinue a pending suit, or a receipt”).
¶40 On the other hand, the term “settlement” as used throughout UTPA is synonymous with an enforceable bilateral contract that discharges a future or existing obligation. See Carlson v. State Farm Mut. Auto. Ins. Co. (D.Mont. 1999), 76 F.Supp.2d 1069, 1079; 46A C.J.S. Insurance § 1348 (1993) (stating that a compromise or settlement “must have all the essential elements of a contract,” and its validity is not affected “by whether the settlement is favorable or unfavorable to the insured”). Accordingly, a claim brought by a third party demanding payment of an insured’s policy limits may be “settled” with the insurer within the meaning of UTPA, if the resulting agreement vests the parties with the right to enforce the “settlement” by bringing an action for breach of contract. See Carlson, 76 F.Supp. at 1079. The early “settlement” for property damage in this matter epitomizes this very point.
¶41 Based on the foregoing, we conclude that to absolutely require that a “settlement” between a third-party claimant and a clearly liable party’s insurer, under all circumstances, must include as a material element a full and final release of all liability would add judicial gloss to the statutory language of § 33-18-201(6), MCA—a gloss that has been applied, we might add, in other jurisdictions for the necessary sake of maintaining a bright, albeit harsh, line in their bad faith jurisprudence. See, e.g., Lazaris, 703 N.E.2d at 206-207 (determining sua sponte in a case where liability was unclear, that payment of claims without a full release in cases where liability is clear does not constitute a “settlement”). As this Court has often expressed, in a variety of applications, mere technicalities that threaten to diminish the ends of substantial right and justice must be avoided. See, e.g., Waggoner v. Glacier Colony of Hutterites (1953), 127 Mont. 140, 150, 258 P.2d 1162, 1167. Likewise, a statute is to be “read as a whole and construed so as to avoid absurd results.” Clover Leaf Dairy v. State (1997), 285 Mont. 380, 388-89, 948 P.2d 1164, 1169 (citation omitted).
¶42 By concluding that a “settlement” between the Watters and Guaranty, under § 33-18-201(6), MCA, for the payment of policy limits was legally possible without the Watters executing a full and final release of all liability, we must necessarily turn to the issue of whether the execution of such a “settlement” by Guaranty would have per se breached its duty of good faith owed to its insured.
B. Guaranty’s Potential “Bad Faith” Liability
¶43 Guaranty strenuously argues that had it paid the policy limits to the Watters without obtaining in return a full and final release of all liability for its insured, “it undoubtedly would have been sued by Moore for ‘bad faith’ and breach of the insurance contract.” Thus, Guaranty contends that it had no choice but to protect the interests of its insured under the circumstances. The underlying rationale, Guaranty maintains, is that it simply cannot place the interests of a third-party claimant above those of its insured to whom it owes a fi duciary duty. We conclude that in this particular instance, Guaranty’s “catch-22” is illusory, at best.
¶44 Guaranty’s alleged liability for bad faith is based on a reasonable forecast of future events: after payment of the $50,000 policy limits, Moore would have been “hung out to dry” for whatever judgment in excess of this amount the Watters could obtain, and quite possibly without the assistance of counsel provided under his policy with Guaranty. However, precisely on what grounds this predicament would have confounded Moore’s reasonable expectations under his policy with Guaranty, and consequently given rise to a viable bad faith claim under UTPA is less than clear. See generally American Family Mut. Ins. Co. v. Livengood, 1998 MT 329, ¶ 32, 292 Mont. 244, ¶ 32, 970 P.2d 1054, ¶ 32 (providing that insured’s expectations of policy “should be honored notwithstanding the fact that a painstaking study of the policy would have negated those expectations”).
¶45 First, several of the decisions from courts which Guaranty assert constitute a “majority rule” do not address the same factual scenario as here. As mentioned earlier, one court resolved the issue sua sponte. See Lazaris, 703 N.E.2d at 207. Others were concerned with the issue of multiple insureds under one policy. See Lehto v. Allstate Ins. Co. (Cal.Ct.App. 1994), 36 Cal.Rptr.2d 814 (insurer does not commit bad faith by refusing third-party claimant offer to release one of two joint tortfeasors); Strauss v. Farmers Ins. Exch. (Cal.Ct.App. 1994), 31 Cal.Rptr.2d 811 (claimant offers to release one of three joint tortfeasors); Premier Ins. Co. of Mass. v. Furtado (Mass. 1998), 703 N.E.2d 208 (multiple insureds).
¶46 Still others do not address a common law or statutory claim for bad faith. See Trinity Universal Ins. Co. v. Bleeker (Tex. 1998), 966 S.W.2d 489, 491 (discussing common law “Stowers” duty owed to insured under negligence theory).
¶47 Further still, those “majority rule” courts that were actually faced with similar facts as those identified here decided the issue based on the holdings from the foregoing courts without distinguishing the facts. See, e.g., Gallagher v. Allstate Ins. Co. (N.D.W.Va. 1999), 74 F.Supp.2d 652, 656 (citing Strauss, Lehto, and Lazaris).
¶48 Finally, others simply offered the “majority rule” via dictum. See Pareti v. Sentry Indem. Co. (La. 1988), 536 So.2d 417, 424 (suggesting, but not holding, that payment of policy limits which does not release the insured from a pending claim raises “serious questions” as to whether insurer discharged its policy obligations in good faith); Cook v. Trinity Universal of Kansas (Ala. 1991), 584 So.2d 813, 815 (stating that it is “wise” to demand that the creditor, as a condition of settlement, sign a release acknowledging extinguishment of the debt).
¶49 On the other hand, several courts which have addressed factual circumstances identical to those found here have decided the issue of “full liability release in exchange for policy limits” in favor of the third-party claimant. See Blank v. USAA Property & Cas. Ins. Co. (Wis.Ct.App. 1996), 546 N.W.2d 512, 514-15 (concluding that an insurer has “no reasonable grounds to fear a bad faith claim” where policy limits of $100,000 are paid without a full release, and jury awards third-party claimant plaintiff $7.5 million); Dairyland Ins. Co. v. Herman (N.M. 1997), 954 P.2d 56, 64 (concluding that the duty to an insured does not mandate an “all-or-nothing approach” where recovery of third party likely will exceed policy limits); Thaler v. American Ins. Co. (Mass.App.Ct. 1993), 614 N.E.2d 1021, overruled by Lazaris v. Metropolitan Property & Cas. Ins. Co. (Mass. 1998), 703 N.E.2d 205.
¶50 Aside from the applicability of a “majority rule” to the factual scenario here, all of the foregoing jurisdictions are clearly distinguishable from such disputes arising in Montana. In 1987, our Legislature provided insurers such as Guaranty with the following protection from bad faith claims under either the common law or UTPA:
An insured who has suffered damages as a result of the handling of an insurance claim may bring an action against the insurer for breach of the insurance contract, for fraud, or pursuant to this section, but not under any other theory or cause of action. An insured may not bring an action for bad faith in connection with the handling of an insurance claim.
Section 33-18-242(3), MCA (emphasis added). See also O’Fallon v. Farmers Ins. Exch. (1993), 260 Mont. 233, 243-44, 859 P.2d 1008, 1014-15 (discussing the legislative history of § 33-18-242, MCA, and identifying the limitation ofthe types of claims that could be brought against insurers as one of its purposes). Section 33-18-242(3), MCA, is a unique feature in contrast to other states, such as Massachusetts and California, that have similar unfair trade practices acts governing their insurance businesses where bad faith claims remain virtually unimpeded.
¶51 Confronted with such statutory plain language, we will not second guess the intent of the Legislature in its desire to explicitly limit the liability of insurers. See State Bar of Montana v. Krivec (1981), 193 Mont. 477, 481, 632 P.2d 707, 710 (citation omitted). See also Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 32, 776 P.2d 488, 494 (providing that the “law of Montana has long recognized that the courts and the legislature establish the substantive law governing tort claims”). Thus, we have stated that § 33-18-242(3), MCA, “explicitly prohibits bringing an action for bad faith in connection with the handling of an insurance claim.” Dees v. American Nat. Fire Ins. Co. (1993), 260 Mont. 431, 450, 861 P.2d 141, 153 (Gray, J., concurring). We have distinguished this prohibition by concluding that the subsection “prohibits an insured, but not a third-party claimant, from bringing an action for bad faith.” Brewington v. Employers Fire Ins. Co., 1999 MT 312, ¶ 13, 297 Mont. 243, ¶ 13, 992 P.2d 237, ¶ 13.
¶52 Guaranty’s reasoning is therefore unclear as to how Moore, as an insured who had yet to suffer damage as a result of Guaranty’s “handling” of the Watters’ claim, could bring an action for “bad faith” under UTPA had Guaranty paid the undisputed full policy limits without obtaining a full release of liability on his behalf. Although providing some evidence of veiled threats of litigation asserted by Moore’s attorney, Guaranty has not provided one decision from Montana or elsewhere where such a claim was made under these particular facts, let alone one in which the insured prevailed. See, e.g., Blank, 546 N.W.2d at 515 (reviewing Louisiana and California case law and concluding that “no cases recognize a bad faith claim” where damages are in excess of policy limits, liability is not in doubt, the insurer uses reasonable efforts to settle and then accepts claimant’s offer to settle without a full release).
¶53 Additionally, the demands made by counsel for Moore are rather hollow. First, these demands did not enter the picture until December of 1994, approximately one year into the negotiation process and several months after the Watters filed their UTPA claim. Secondly, Moore’s attorney, although exercising independent judgment on behalf of Moore, was paid by Guaranty pursuant to its duty to defend, a duty that would certainly not include financing a bad faith or breach of contract action against Guaranty, nor, for that matter, an action in bankruptcy.
¶54 Guaranty, in fact, evidenced signs of acting in good faith toward its insured when it informed Moore within one week of the accident that he should consider seeking legal counsel, at his own expense, to address the issue of his own liability that would exceed the policy limits. There is likewise substantial evidence that Guaranty fully informed its insured throughout this matter, and dutifully investigated the Watters’ claim for policy limits. Further, Moore purchased insur- anee coverage limited to the statutory minimums. If and when these limits were paid, he would have realized the full benefit of the coverage for which he had paid premiums: a reduction of the total personal injury damages he caused by $50,000.
¶55 While we have recognized the reasonable expectations doctrine, see American Family, ¶ 32, we have also concluded that this doctrine is inapplicable where the terms of the policy at issue clearly demonstrate an intent to exclude coverage. See American Family, ¶ 33. Thus, Moore could not reasonably have expected under such circumstances that Guaranty would be obligated to, in effect, provide greater coverage than that purchased in the issued policy by demanding a full release of all liability as a condition of paying the limits of the minimum coverage which he had purchased.
¶56 Undoubtedly, where the monetary consequences of a person’s tortious conduct undisputedly exceed policy limits, and liability is clear, the only incentive for an injured third-party claimant to settle for policy limits and provide the insured with an absolute release is some form of coerced economic necessity. In Ridley, we addressed this very subject and stated:
Medical expenses from even minor injuries can be devastating to a family of average income. The inability to pay them can damage credit and, as alleged in this case, sometimes preclude adequate treatment and recovery from the very injuries caused. Just as importantly, the financial stress of being unable to pay medical expenses can lead to the ill-advised settlement of other legitimate claims in order to secure a benefit to which an innocent victim of an automobile accident is clearly entitled. We conclude that this is not what was intended by the Montana Legislature when mandatory liability insurance laws and unfair claims practice laws were enacted.
Ridley, 286 Mont. at 335, 951 P.2d at 993. Absent such necessity, and where damages are twice, ten, or one hundred times the mandatory limits imposed by law, such an absolute release is an absurdity, and potentially raises the issue of whether such a release would be unconscionable as a matter of law.
¶57 Accordingly, we conclude that compelling an innocent third-party claimant, under the circumstances described here, to proceed to trial to recoup that which is already owed is entirely inconsistent with the declared public policy of Montana to encourage settlement and avoid unnecessary litigation. See generally Augustine v. Simonson (1997), 283 Mont. 259, 266, 940 P.2d 116, 120. While we agree with Guaranty that it must consider the interests of its insured, we hold that the payment of policy limits under these particular factual circumstances would not have exposed Guaranty to per se liability for bad faith.
C. Guaranty’s Potential “Breach of Contract” Liability
¶58 Whether a breach of contract may have occurred is equally unclear and of little concern here. As we have stated, it is “axiomatic that laws established for the benefit of the public cannot be contravened by private contract.” Iowa Mutual, 231 Mont, at 171, 752 P.2d at 169. In light of this policy, the Montana Legislature has required that insurance companies in good faith promptly settle claims with third parties, such as the one brought here by the Watters, when liability has become reasonably clear.
¶59 Furthermore, a contractual duty to secure a third-party’s absolute release is not mentioned once in Guaranty’s policy. Rather, the policy explicitly states that Guaranty would “pay damages for which any insured person is legally liable because of bodily injury and property damage caused by a car accident...” Guaranty had the right to “settle any claim or suit” and the “payment of the limits of liability ends our duty to defend or settle.” As previously addressed, expectations which are contrary to a clear exclusion from coverage are not objectively reasonable. See American Family, ¶ 33.
D. Summary
¶60 In summary, we hold that where liability resulting from an automobile accident is reasonably clear, and a third-party claimant’s damages undisputedly exceed mandatory minimum policy limits pursuant to § 61-6-103, MCA, the prompt, fair, and equitable settlement of such claims cannot be forestalled by an insurer based on an illusory bad faith or breach of contract claim that its insured may bring. To refuse payment based on such unfounded potential liability is, in and of itself, a deceptive practice within the meaning of § 33-18-201(6), MCA.
¶61 Further, we hold that where an insured’s liability for damages caused to a third party in an auto accident is reasonably clear, and those damages undisputedly exceed the mandatory limits set forth under § 61-6-103(2), MCA, it is an unfair trade practice per se under § 33-18-201, MCA, for an insurer to condition the payment of the owed mandatory minimum policy limits on the third party’s agreement to provide a full and final release of all liability in favor of an insured. To this extent, we affirm the summary judgment order of the District Court. To hold otherwise, under the specific facts here, would render our mandatory liability insurance law, which was “enacted for the benefit of the public and not for the benefit of the insured,” meaningless. Iowa Mutual, 231 Mont. at 171, 752 P.2d at 169.
¶62 Accordingly, we conclude that an insurer, who pays mandatory minimum policy limits that are owed under the circumstances herein described, does not act in bad faith per se against its insured by not obtaining a full and final liability release on the insured’s behalf. This ruling is by no means intended to foreclose any or all bad faith claims — including those related to the duty to defend — that an insured may bring against its insurer for conduct prior to or following the handling of an insurance claim.
¶63 We overrule and distinguish Juedeman as well as Thompson to the extent those decisions are inconsistent with this opinion. Namely, the insurer in Juedeman, under our decision here today, would commit an unfair trade practice per se by withholding those policy proceeds under its coverage that are mandated pursuant to § 61-6-103(2), MCA. Thus, our decision here does not affect excess coverage that an insured chooses to carry, pursuant to § 61-6-103(8), MCA. Thompson is overruled to the extent it suggests that a third-party claimant’s full and final release of an insured’s liability is, as a matter of law, a material element of a “settlement” under the UTPA.
ISSUE 2
Did Guaranty have a reasonable basis in law or in fact for contesting the Watters’claim, and therefore may not be found liable for violating Montana’s Unfair Trade Practices Act?
¶64 Guaranty contends that even if we overrule Juedeman, and thereby broaden and clarify our decision in Ridley, we must nevertheless reverse summary judgment because although engaging in an unfair settlement practice, Guaranty had a “reasonable basis in law or in fact” for contesting the Watters’ claim.
¶65 In addition to limiting the liability of insurers for bad faith in 1987, the Legislature also provided insurers with an affirmative de fense under § 33-18-242(5), MCA. This provision provides that “[a]n insurer may not be held liable under this section if the insurer had a reasonable basis in law or in fact for contesting the claim or the amount of the claim, whichever is in issue.”
¶66 Guaranty maintains that at the very least, our decision in Juedeman during the relevant period of 1993-95, was the undisputed law in Montana. The Watters, on the other hand, assert that Juedeman did not at any time control the circumstances of this case, and therefore it could not provide a reasonable basis for Guaranty’s refusal to pay the policy limits. The District Court, in its summary judgment order, did not explicitly determine whether Guaranty’s defense, under § 33-18-242(5), MCA, failed as a matter of law.
¶67 As we have stated before, the party asserting this defense has the burden of establishing it by a preponderance of the evidence. Dees v. American Nat. Fire Ins. Co. (1993), 260 Mont. 431, 451, 861 P.2d 141, 153 (Gray, J., concurring). Consequently, we have held that whether an insurer has a “reasonable basis” is generally a question of fact, and cannot be made “as a matter of law.” Dean v. Austin Mut. Ins. Co. (1994), 263 Mont. 386, 389, 869 P.2d 256, 258. The insurer in Dean, for example, contested coverage based solely on the fact that the insureds had been charged with felony arson, and subsequently argued that this served as a reasonable basis for it denying coverage up until the time that the Deans were acquitted, reasoning that the policy excluded from coverage acts of arson. Dean, 263 Mont. at 387-88, 869 P.2d at 257. Under those circumstances, we concluded that whether the insurer had a reasonable basis in law or in fact was an issue properly presented for determination to the trier of fact. Dean, 263 Mont. at 389, 869 P.2d at 258.
¶68 In a recent de novo review of a district court’s summary judgment, however, we determined that an insurer clearly had a reasonable basis in law for not paying its insured’s claim for insurance proceeds, and affirmed without requiring that the insurer’s conduct reach the trier of fact. See Bartlett v. Allstate Ins. Co. (1996), 280 Mont. 63, 70, 929 P.2d 227, 231 (concluding that claimant as a matter of law did not have an insurable interest in damaged property, and therefore insurer clearly had a reasonable basis for not paying claim). See also Watts v. Westland Farm Mut. Ins. Co. (1995), 271 Mont. 256, 263, 895 P.2d 626, 630 (affirming summary judgment in favor of insurer where insurance policy was as a matter of law not in effect at time of insured’s loss, and therefore denial of claim was reasonable).
¶69 Thus, the “trier of fact” rule set forth in Dean is not necessary in a summary judgment proceeding where the underlying “basis in law” is grounded on a legal conclusion, and no issues of fact remain in dispute. Here, therefore, it is for the court, not the trier of fact, to determine whether our holding in Juedeman sufficiently provides an absolute defense as a matter of law in this instance.
¶70 In Juedeman we unequivocally stated that “[i]n substance, this Court has held that without an agreement to release, there is no offer for settlement.” Juedeman, 253 Mont. at 281, 833 P.2d at 193. This succinct rule rested soundly on our decision in Thompson, where we stated that “there was never an agreement to release Thompson fully .... [t]hus, no offer or demand for settlement within policy limits was made.” Thompson, 161 Mont. at 220, 505 P.2d at 430. In both instances, the third-party’s bad faith claim based on the insurer’s refusal to pay policy limits without a full and final release failed. Further, our decision in Juedeman was not subsequently addressed by this Court until 1997, when we decided Ridley.
¶71 We conclude that at the time this dispute arose, Juedeman was the lone precedent from Montana case law upon which Guaranty could rely under the circumstances. From early on in this dispute, counsel for Guaranty offered Juedeman as legal authority for its position. In contrast, counsel for the Watters, while insisting as early as December of 1993 that Guaranty was acting in bad faith pursuant to § 33-18-201(6), MCA, did not cite to one favorable Montana case that squarely addressed the issues here in its dialogue of negotiation with Guaranty.
¶72 We must therefore conclude that a plain reading of the available case law at the time gave Guaranty a reasonable basis in law upon which it could deny payment of policy limits. That is, Juedeman was legally conclusive to the extent there was simply no other authority in Montana at the time suggesting that in order to effectuate a prompt, fair, and equitable settlement of a third-party claim in good faith, an insurer must, under certain circumstances, pay policy limits without a full and final release for its insured. Unfortunately for the Watters, this was simply not the law in Montana at the time. Now, it is.
¶73 Accordingly, the District Court’s order granting summary judgment in favor of the Watters is reversed, and the court is ordered to grant summary judgment in favor of Guaranty pursuant to its cross-motion for summary judgment. This case is remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER,-REGNIER and MIZNER, District Judge, JUSTICE LEAPHART.
. Our decision in Ridley, as both parties point out, was decided several years after Guaranty refused payment and the Watters brought this unfair trade practice action. Notwithstanding our decision in Ridley, Guaranty asserts that Juedeman is still good law on the issue of whether the refusal of policy limits without a full and final release is an act of bad faith.
. Guaranty points out that the Lazaris court overruled Thaler v. American Ins. Co. (Mass.App.Ct. 1993), 614 N.E.2d 1021, a case the district court followed here in determining that Guaranty, as a matter of law, committed an unfair trade practice. Like Ridley, Lazaris was decided well after this litigation commenced. Unlike Lazaris, however, the facts in Thaler were identical to those here. The Thaler court concluded that “the insistence on a release by an insurer as a condition of payment of the policy limits where liability of its insured is undisputed and damages clearly exceed the policy limits amounts to an unfair settlement practice ...” Thaler, 614 N.E.2d at 1023-24. The Thaler court, however, decided in favor of the insurer based on the insurer’s reasonable reliance on the case law — or, rather, the lack of “applicable precedent” — at the time of its decision to refuse payment. See Thaler, 614 N.E.2d at 1024.
. The Watters have, in fact, raised the issue that such a release is unconscionable. However, whether the release in this instance was, as a matter of law, unconscionable was not specifically raised or addressed by the parties, and is therefore not within the scope of our de novo review of this matter.
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Catharine Gay Grounds, f/k/a Catharine Gay Coward (Catharine), appeals from the September 29, 1998 Order of the Montana Fourth Judicial District Court, Missoula County, refusing to lift a stay on a contempt and commitment order it had issued in 1996 against Harold Mark Coward (Mark) for failing to pay required maintenance under the parties’ 1991 dissolution decree. Although Catharine raises several issues pertaining to the District Court’s contempt power, we conclude that under the authority of our recent decision in Lee v. Lee, 2000 MT 67, [299 Mont. 78], 996 P.2d 389, we are without jurisdiction to address the questions presented. Thus, we dismiss this appeal.
¶2 A party is permitted to appeal from a civil judgment or order “except when expressly made final by law.” Rule 1(b), M.R.App.P. In turn, § 3-1-523, MCA, provides:
The judgment and orders of the court or judge made in cases of contempt are final and conclusive. There is no appeal, but the action of a district court or judge can be reviewed on a writ of certiorari by the supreme court or a judge thereof....
Section 3-1-523, MCA; see also State ex rel. Anderson v. District Court (1980), 188 Mont. 77, 79, 610 P.2d 1183, 1185 (holding that a writ of supervisory control may be granted in contempt cases where the party is barred from using a writ of certiorari).
¶3 Notwithstanding the foregoing statutory mandate, this Court has for years recognized a judicially created “exception” permitting direct appellate review of contempt orders in the family law context, including marital dissolution proceedings. See In re Marriage of Sessions (1988), 231 Mont. 437, 441, 753 P.2d 1306, 1308 (citing In re Marriage of Smith (1984), 212 Mont. 223, 225-26, 686 P.2d 912, 914) (acknowledging the “family law exception” to the writ of certiorari mandate in the context of dissolution of marriage proceedings). Nevertheless, we have also recognized in the family law context, as a matter of public policy, that “the best remedy to insure respect for the law and the orderly progress of relations between family members split by dissolution is to give effect to the contempt powers of the District Court ” Milanovich v. Milanovich (1982), 201 Mont. 332, 336, 655 P.2d 963, 965.
¶4 Because discretionary review of a petition for certiorari or supervisory control is “far more efficient and effective in upholding the ‘family law’ policy set forth in Milanovich,” we sought in Lee to better define the family law direct appeal exception so that it could be “properly narrowed” in light of the underlying public policy. Lee, ¶ 34. In Lee, we began by noting that there are two distinct circumstances under which a court’s contempt power may be challenged: first, where the court acts without jurisdiction; and second, where the court acts within its jurisdiction but in an arbitrary and tyrannical manner. See Lee, ¶ 35. Since a writ of certiorari cannot be used to correct errors within a lower court’s jurisdiction, we explained that where a court finds one party in contempt but also acts within its jurisdiction in adjudicating ancillary matters between the parties vis-á-vis the contemptuous conduct (e.g., marital property division, maintenance, child custody, visitation, etc.), the judgment must stand and may not be attacked by writ of certiorari. Lee, ¶ 36. A writ of certiorari would be barred, under such circumstances, because the lower court did not exceed its jurisdiction in issuing the ancillary order. See Lee, ¶ 36.
¶5 To illustrate, the contempt order at issue in Lee was reviewable on direct appeal under the “family law exception” because of the nature of the judgment in that case. See Lee, ¶¶ 15-16 (discussing the judgment in some detail). In Lee, although one party was obligated pursuant to the underlying dissolution decree to transfer a horse and horse trailer to the other party as part of the distribution of the marital estate, the obligated party had sold those assets prior to final judgment while continuing to represent that she possessed them. Following appeal, the other party attempted to execute on the judgment and it was discovered that the obligated party had already disposed of the assets. The district court held the obligated party in direct contempt for her “ ‘deceitful omission’ ” concerning the marital assets and her refusal to comply with the terms of the precedent dissolution decree. Lee, ¶¶ 3, 15. Then, in the very same judgment, the district court calculated the money judgment due under the dissolution decree, factoring in the cash value of the horse and trailer and providing the other party with offsetting deductions to his maintenance obligations under the decree. Lee, ¶¶ 3, 16.
¶6 Thus, where a court in a single judgment, issues an order of contempt against one party and an ancillary order within its jurisdiction in determining the rights of the parties as a result of the contemptuous conduct, a petition for writ of certiorari would necessarily be denied. Lee, ¶ 37. Only this limited scenario triggers application of the family law exception to the writ of certiorari mandate contained in § 3-1-523, MCA. We held in Lee, therefore, that “the ‘family law’ direct appeal exception ... applies when, and only when, the judgment appealed from includes an ancillary order which effects [sic] the substantial rights of the involved parties.” Lee, ¶ 37. Conversely, “a lone contempt order, regardless of the underlying law of the case, cannot be reviewed by this Court on direct appeal.” Lee, ¶ 37.
¶7 Thus, the “threshold question” in this case becomes whether § 3-1-523, MCA, bars a direct appeal by Catharine. In re Marriage of Harper (1988), 235 Mont. 41, 44, 764 P.2d 1283, 1285. We conclude that it does. As stated in Catharine’s appellate brief, she is appealing from the District Court’s denial of her request to vacate its stay of a prior contempt and commitment order issued against Mark in 1996. While Catharine is not appealing from the court’s initial finding of contempt, we determine that this direct appeal falls outside of the family law exception as narrowed in Lee.
¶8 Here, Catharine is appealing from the District Court’s refusal to enforce its contempt power against Mark by lifting its stay on commitment and imprisoning him. As we have suggested in the past, however, a court’s contempt power “must be exercised to its fullest extent to enable the court to discharge its high duty of administering justice between parties whose rights are put in issue before it, or to enforce these rights after they have been determined" State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 288, 191 P. 772, 774 (emphasis added). Without going into the merits, it is clear that the District Court has been discretionarily exercising its contempt power to properly enforce the parties’ rights as determined in the 1991 dissolution decree.
¶9 The order appealed from goes purely to the District Court’s contempt power; the court did not adjudicate any ancillary matters falling within its continuing jurisdiction over the rights of the parties as determined under the 1991 dissolution decree. Catharine appeals from “a lone contempt order” and, therefore, her challenge “cannot be reviewed by this Court on direct appeal.”Lee, ¶ 37. Under the facts of this case, Catherine is precluded from challenging the District Court’s enforcement of its contempt power on direct appeal. Rule 1(b), M.R.App.P.; § 3-1-523, MCA; Lee, ¶¶ 36-37.
¶10 Asa result, this Court is without jurisdiction to reach the merits of Catherine’s challenge on direct appeal. It is well settled that jurisdictional defects may be raised at any time by either party, as well as by the court sua sponte. See Thompson v. Crow Tribe of Indians, 1998 MT 161, ¶ 12, 289 Mont. 358, ¶ 12, 962 P.2d 577, ¶ 12. We decline, sua sponte, to entertain Catherine’s direct appeal.
¶11 This appeal is dismissed without prejudice.
JUSTICES GRAY, TRIEWEILER, NELSON and LEAPHART concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an original proceeding in this Court involving an application for a writ of supervisory control. The Petitioner, Safeco Insurance Company of Illinois (Safeco), one of the defendants in the underlying action, seeks review of the District Court’s February 2, 2000 order, which granted summary judgment in favor of the Plaintiff, Pete Hill (Hill) on his declaratory judgment claim against Safeco. Safeco contends that in doing so, the court incorrectly interpreted current law governing an insurer’s obligation to pay medical expenses incurred by an injured third party claimant in advance of final settlement or judgment.
¶2 We assume supervisory control, and affirm the District Court’s order granting summary judgment in favor of Hill.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The parties agree that on April 6, 1998, a motor vehicle collision occurred between a vehicle driven by Safeco’s insured, Judith Bennett (Bennett) and a vehicle in which Hill was a passenger. It is undisputed that Bennett admits that her negligence caused the accident, and that Safeco was her liability insurer at the time. Hill suffered injuries as a result of the accident, and initially incurred medical expenses of approximately $15,000, a figure which he asserted in a statement of claim filed with the court in April of 1999.
¶4 Although Safeco apparently paid some of Hill’s initial medical claims — according to Hill’s July 7, 1999 affidavit — it eventually disputed the causal relationship between the accident caused by its insured and Hill’s claimed injuries. It refused to pay any medical bills submitted for payment by Hill that were incurred beyond December 1, 1998.
¶5 Hill filed suit on March 10, 1999, against Bennett for negligence damages, as well as against Safeco under three separate counts for its nonpayment of medical expenses. In part, Hill sought a declaratory judgment that he was legally entitled to advance payment of medical costs under Bennett’s policy with Safeco prior to settlement or a final judgment, because Bennett’s liability was reasonably clear. He asserted that such a declaratory judgment would be proper pursuant to Montana’s Unfair Trade Practices Act (UTPA), as well as this Court’s 1997 decision construing the Act, Ridley v. Guaranty Nat’l Ins. Co. Hill moved for summary judgment on this declaratory judgment claim on July 7, 1999.
¶6 Hill also brought an UTPA claim and a common law claim of bad faith against Safeco. The two counts were dismissed, however, by an order issued by the court on May 12, 1999, pursuant to a stipulation by the parties. On September 14, 1999, the court also granted Safeco’s request to separate trials regarding Hill’s negligence claim against Bennett and his declaratory judgment claim against Safeco.
¶7 In support of his motion for summary judgment, Hill asserted that all of his medical claims made to date were causally related to the accident. Hill relied primarily upon the affidavit of his primary treating physician, Dr. Ronald Peterson. Dr. Peterson’s affidavit attested that “to a reasonable degree of medical certainty” he believed that Hill’s claimed injuries were sustained in, and were related to, the April 6, 1998 accident.
¶8 Safeco, on the other hand, relied on the affidavit of its hired consultant, Dr. A. Craig Eddy, who stated that after his review of Hill’s medical records he could not “to a reasonable degree of medical certainty, make a causal connection between the April 6, 1998 car accident and Mr. Hill’s continuing medical complaints.” According to Hill’s affidavit, he was never asked to submit to a medical examination by a doctor chosen or approved by Safeco. Additionally, Safeco contended that summary judgment in favor of Hill was inappropriate because any action — including a declaratory judgment — arising from an UTPA claim is expressly precluded from adjudication prior to a settlement or a judgment in the underlying action between the third-party claimant and the insured, pursuant to § 33-18-242(6)(b), MCA.
¶9 The District Court, in issuing summary judgment in favor of Hill, noted that “nowhere in his affidavit does Dr. Eddy contradict the affidavits of Plaintiff or Dr. Peterson.” Therefore, the court concluded that “the material facts as alleged by Plaintiff are not in dispute.” The court further determined that “[b]ecause this action does not directly seek bad faith damages for a violation of the Unfair Trade Practices Act, there is no statutory bar under Mont. Code Ann. § 33-18-242(6)(b).”
¶10 The District Court ordered that Safeco “must advance the medical expenses Mr. Hill has incurred as a result of his injuries sustained in the wreck with Judith Bennett.” The court specifically ordered that Safeco pay “the amount of Mr. Hill’s medical expenses for treatment rendered from the date of the accident through November 1, 1999.” The court further provided, however, that Safeco may nevertheless raise “reasonable defenses” as to the “validity for any expenses for treatment after that date.”
¶11 From this order, Safeco seeks this Court’s review pursuant to its petition for supervisory control.
STANDARD OF REVIEW
¶12 Generally, our standard of review of a district court’s summary judgment order is de novo. See Auto Credit, Inc. v. Long, 1998 MT 327, ¶ 8, 292 Mont. 238, ¶ 8, 971 P.2d 1237, ¶ 8. In this instance, however, the District Court determined there were no significant factual issues and granted summary judgment to Hill based on its interpretation of the law. The parties concede that no genuine issues of fact remain. Accordingly, we will narrow our review to determine whether the moving party, Hill, was entitled to judgment as a matter of law. See Nimmick v. State Farm Mut. Auto. Ins. Co. (1995), 270 Mont. 315, 319, 891 P.2d 1154, 1156. Our standard of review pertaining to a district court’s conclusions of law, in rendering a declaratory judgment, is to determine if the court’s interpretation of the law is correct. See Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 89.
DISCUSSION
I. Propriety of Supervisory Control
¶13 Safeco contends that a writ of supervisory control is appropriate because a direct appeal of the District Court’s February 2, 2000 order granting Hill summary judgment would be an inadequate remedy. Safeco sets forth a scenario whereby a jury may eventually find its insured, Bennett, not liable for some or all of Hill’s medical expenses. In turn, Safeco may have already paid Hill some of these expenses pursuant to the court’s order granting summary judgment. This “procedural paradox,” as characterized by Safeco, is a direct result of the District Court’s legal error in refusing to stay Hill’s declaratory judgment until either a settlement had been reached or a judgment had been entered, which is required under § 33-18-242(6)(b), MCA.
¶14 Article VII, Section 2, of the Montana Constitution gives this Court “original jurisdiction to issue, hear, and determine writs ...” The exercise of supervisory control by this Court is also authorized by Rule 17(a), M.R.App.P. Supervisory control is appropriate when a district court is proceeding under a mistake of law and in so doing is causing a gross injustice for which an appeal is not an adequate remedy. See State ex rel. Missoulian v. Montana Twenty-First Judicial Dist. Court (1997), 281 Mont. 285, 290-91, 933 P.2d 829, 832-33 (citations omitted). Our determination of whether supervisory control is appropriate is a case-by-case decision. See Park v. Sixth Jud. Dist. Court, 1998 MT 164, ¶ 13, 289 Mont. 367, ¶ 13, 961 P.2d 1267, ¶ 13 (ci tations omitted). It remains an extraordinary remedy, however, exercised only in extraordinary circumstances. See State ex rel. Mazurek v. Fourth Jud. Dist. Court (1996), 277 Mont. 349, 352, 922 P.2d 474, 476 (citations omitted).
¶15 Here, we conclude that Safeco’s application presents a legal issue which is appropriate for this Court to resolve through a writ of supervisory control. As explained by Safeco, should the ordered payment of medical expenses be incorrect, or a “mistake of law,” the delay in awaiting the outcome of the corollary litigation that will determine damages could create an unfair prejudice for Safeco. Likewise, any further, unnecessary delay in the payment of Hill’s medical costs — if the court’s summary judgment was appropriate — would certainly prejudice Hill. Safeco contends that an appeal brought at some point in the future, as compared with a resolution of this matter now, would be inadequate. We agree.
¶16 We recognize, however, that due to the September 14, 1999 order for separate trials which followed Hill’s July 7, 1999 motion for summary judgment, the granting of summary judgment on February 2, 2000, was not, technically speaking, “interlocutory.” See generally Cechovic v. Hardin & Assoc., Inc. (1995), 273 Mont. 104, 118, 902 P.2d 520, 528 (stating general rule that summary judgment orders are interlocutory and therefore not appealable until final judgment is rendered) (citation omitted); Knight and Co. v. Fort Belknap Indian Agency (1980), 188 Mont. 218, 220-21, 612 P.2d 1290, 1291-92 (concluding that appeal must be dismissed without prejudice under Rule 1, M.R.App.P., where order of summary judgment is interlocutory). Although the trial court did not certify the summary judgment as final, -under Rule 54(b), M.R.Civ.P., there was nothing preventing Safeco, if it chose to do so, from directly appealing the order of the District Court.
¶17 Nevertheless, this Court has determined that where an appeal is not “an adequate remedy because of the time necessarily involved,” the relief of an aggrieved party should properly be pursued through a writ of certiorari, habeas corpus, or supervisory control. See Matter of K.H. (1985), 216 Mont. 267, 268, 701 P.2d 720, 721 (treating appeal as a writ of certiorari). In light of the central issue — the timely payment of medical claims — Hill does not resist our review of this matter. Specifically, he requests that this Court accept jurisdiction “for the purpose of clarifying and enforcing the law so that he is not further prejudiced by Safeco’s ongoing delay tactics.”
¶18 Accordingly, Safeco’s application for a writ of supervisory control is granted.
II. Issue Presented
Can a plaintiff litigate a declaratory judgment claim against an insurer for advance payment of medical expenses prior to the final settlement or judgment on the underlying claim against án insured?
¶ 19 The issue raised by Safeco’s application for supervisory control revisits the issues addressed in this Court’s decision, Ridley v. Guaranty Nat’l Ins. Co. (1997), 286 Mont. 325, 951 P.2d 987. In that case, this Court decided that when certain criteria are met, an insurer must pay an injured third-party claimant’s medical expenses prior to final settlement. See Ridley, 286 Mont. at 334, 951 P.2d at 992. We concluded that Montana’s Unfair Trade Practices Act, specifically subsections (6) and (13) of § 33-18-201, MCA, imposed an obligation on insurers to pay an injured third party’s medical expenses — which were provided for under its insured’s policy — prior to final settlement when liability is reasonably clear. See Ridley, 286 Mont. at 334, 951 P.2d at 992.
¶20 In this instance, the court followed Ridley and determined that Bennett’s liability was reasonably clear — she admitted to negligence in her Answer. The court concluded that no material facts were in dispute concerning the causal relationship between the accident and Hill’s medical claims, because Safeco’s lone piece of evidence, the affidavit of Dr. Eddy, did not contradict material facts. Therefore, Safeco — given an ample opportunity to do so — could not establish a reasonable basis for denial of the payment. Under the circumstances, the court determined that Safeco must, as a matter of law, pay those medical bills no longer in dispute in advance of settlement or judgment. In doing so, the court acknowledged that this would “terminate the controversy or remove uncertainty,” as required by the statutes governing declaratory judgments.
¶21 Before proceeding, we first find it necessary to address a portion of Safeco’s argument, which suggests that the question here is actually “whether an insurance company can be forced to defend its decision on the advance pay issues before its insured’s liability for those expenses has been established” (emphasis added).
¶22 We agree with Safeco that Montana law does not allow a plaintiff to bring a direct action against an insurer until the liability of the insured has been established, unless such a right is “expressly sanctioned by the legislature and not merely inferentially deduced.” See, e.g., Ulrigg v. Jones (1995), 274 Mont. 215, 224-25, 907 P.2d 937, 943 (citations omitted). How this principle is relevant in this matter, however, is unclear.
¶23 In her answer, Bennett admitted to committing negligence — i.e., breaching a duty — as far as the accident was concerned, stopping short of admitting liability for any or all of Hill’s claimed injuries. That her negligence was in turn the cause of those injuries initially claimed by Hill was determined by the District Court following the submission of affidavits by both parties attesting to the causal relationship between the accident and Hill’s medical claims.
¶24 Thus, the District Court determined that the only matter reserved for trial would be damages, which may or may not include damages in excess of the medical expenses at issue here. Nevertheless, Bennett is liable for injuries resulting from the accident, a portion of which are no longer in dispute, and the remainder of which remain to be proven by Hill.
¶25 Whether Safeco, as a matter of law, must pay for that undisputed portion, and only that portion, in advance of settlement or judgment is the issue before this Court. Safeco’s repeated assertions that Bennett’s “liability” is somehow still at issue is therefore without merit and will be disregarded.
¶26 Aside from the foregoing diversion, Safeco has carefully narrowed its summary judgment arguments here to the focal issue of whether the language of § 33-18-242(6)(b), MCA, under Montana’s Unfair Trade Practices Act, requires that Hill’s declaratory judgment must be stayed until after the settlement or final adjudication of his claim against Safeco’s insured. The application of this statute, Safeco correctly points out, was not at issue or discussed in Ridley.
¶27 Section 33-18-242(6)(b), MCA, provides that a “third-party claimánt may not file an action under this section until after the underlying claim has been settled or a judgment entered in favor of the claimant on the underlying claim.” See Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 120, 918 P.2d 677, 679 (stating that a district court does not have subject matter jurisdiction over such an UTPA claim until final settlement or judgment is achieved). Thus, according to Safeco, the District Court failed as a matter of law to abide by the mandate of § 33-18-242(6)(b), MCA, by determining that Hill could properly enforce a right provided by the UTPA, in an action seeking advance payments on his medical claims prior to the settlement or adjudication of his negligence claim against Bennett.
¶28 As we recently explained in Fisher v. State Farm Gen. Ins. Co., however, section 33-18-242(1), MCA, expressly provides that an UTPA claim against an insurer is an independent cause of action See Fisher, 1999 MT 308, ¶ 16, 297 Mont. 201, ¶ 16, 991 P.2d 452, ¶ 16. We agree with Safeco that a third-party claimant who wishes to bring such an independent action under UTPA is required, by statute, to wait until “after the underlying claim has been settled or a judgment [is] entered in favor of the claimant on the underlying claim.” See generally Peris v. Safeco Ins. Co. (1996), 276 Mont. 486, 491-92, 916 P.2d 780, 784 (discussing legislative intent of subsection (6)(b)). The language of the statute itself provides the underlying reasoning. Only those third-party claimants who are able to achieve a settlement or prevail at trial may, in turn, bring an UTPA action — meaning meritless UTPA claims are theoretically extinguished before a claim is ever filed. This provision serves to both protect insurers from frivolous claims and facilitate judicial economy.
¶29 Safeco’s brief provides little assistance in our search for sound legal authority, however, that the District Court incorrectly concluded that subsection (6)(b) does not apply to Hill’s declaratory judgment action, and that the court therefore erred as a matter of law by not staying the proceedings. Rather, Safeco’s position is premised on the imaginative reasoning that Hill’s declaratory judgment action is nothing more, really, than an UTPA claim under a different name. For example, on page 10 of its brief, Safeco argues that Hill’s declaratory judgment claim against Safeco “arises” under § 33-18-242(1), MCA, and this Court’s holding in Ridley. We will not dispute this. Hill requested that the court apply the governing law as expressed in Ridley and under UTPA in determining the parties’ legal status and rights respecting Bennett’s insurance policy with Safeco, and Hill’s status as an innocently injured third-party claimant. By page 14, however, Hill’s declaratory judgment claim is interestingly transformed into an actual “UTPA claim against Safeco.” By page 15, Hill’s claim ripens into a bona fide “bad faith case.” Then, Safeco reaches its conclusion by claiming that Hill could not bring “his claim against Safeco until he settles or adjudicates his underlying claim against Safeco’s insured,” as required of all UTPA claims under § 33-18-242(6)(b), MCA, (emphasis added).
¶30 Noticeably absent from this slight-of-hand chronology is the fact that as a result of Safeco’s own motion before the District Court, Hill’s UTPA and common law bad faith claims were dismissed pursu ant to the parties’ stipulation. Accordingly, the District Court did not award damages for bad faith, or an unfair trade practice. Rather, the court simply instructed Safeco to pay those medical expenses provided for under Bennett’s policy that were no longer in dispute — those that Hill had incurred up to November 1, 1999. Beyond that date, the court clearly afforded Safeco the right to “raise reasonable defenses, which can be substantiated with a clearly stated, good faith argument....” Further, the court correctly omitted any determination regarding Hill’s claim to lost wages, which clearly falls outside the scope of our decision in Ridley. In every respect, the court narrowly tailored its declaratory judgment to those medical expenses that, under Ridley, a third-party claimant is unequivocally entitled to prior to settlement or entry of judgment.
¶31 The purpose of the Declaratory Judgment Act, after all, is to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Section 27-8-102, MCA. While the focus of the Act is on construing rights under written instruments, see § 27-8-202, MCA, a court is not restricted in “any proceeding where declaratory relief is sought in which a judgment or decree will terminate the controversy or remove an uncertainty.” Section 27-8-205, MCA. Thus, a court has the liberal discretion to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Section 27-8-201, MCA.
¶32 In accordance with the foregoing statutory language, the declaratory judgment sought by Hill, in theory, actually removed the necessity of his pursuing a Ridley-based UTPA claim. Indeed, Hill did in fact pursue such a claim, insisting that it would be an unfair trade practice for Safeco to withhold advance payment of Hill’s medical claims in light of this Court’s decision in Ridley. In turn, this claim no doubt would have led to a lengthy dispute over the underlying facts of the parties’ respective conduct.
¶33 Where an insurer’s duties turn on a question of law, however, especially where those duties have been previously and conclusively determined by either the Legislature or this Court, such a protracted affair would be imprudent from both parties’ standpoints, in that the cost of litigation could certainly be reined in by a declaratory judgment that produces the same result. In fact, such a tactical decision is routinely made by insurers. See, e.g., St. Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 358, 665 P.2d 223, 227 (discussing insurers’ use of declaratory judgment to obtain a determination of the validity, continuance, or coverage of an insurance policy; a determination of the extent of liability; or a determination of the insurer’s duties under the policy). In this sense, Safeco should be grateful that what amounts to a question of law could be resolved in such an efficient manner — especially in light of the potential for awarding the successful third-party claimant far more than the actual medical costs under Montana’s UTPA.
¶34 We therefore affirm the District Court’s conclusion that because Hill’s declaratory judgment claim did not directly seek bad faith damages for a violation of the UTPA, there was no statutory bar under § 33-18-242(6)(b), MCA. In doing so, we again emphasize that the District Court did not determine that Safeco violated UTPA, or acted in bad faith, or that the ordered payment of advance medical expenses constitutes a money judgment for “damages” in the ordinary sense. To the contrary, the District Court merely removed all uncertainty and controversy over the issue of when the inevitable policy proceeds are due.
¶35 The judgment of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICE HUNT, REGNIER, TRIEWEILER and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Petitioner George Harold Holt (Holt) has made an application to this Court for a Writ of Supervisory Control to reverse the Sentence Review Division’s Order denying review of Holt’s sentence on the basis that his sentence was suspended and he was not incarcerated. We rant the petition for supervisory control and accept jurisdiction pursuant to Article VII, Section 2(2) of the Montana Constitution and Rule 17(a), M.R.App.P. See Ranta v. State, 1998 MT 95, ¶ 12, 288 Mont. 391, ¶ 12, 958 P.2d 670, ¶ 12 (“Because the Sentence Review Division functions as an arm of this Court, this Court has the supervisory authority to ensure that it complies with statutes and rules governing its operations as well as the Montana Constitution and the United States Constitution.”). We hold that the Sentence Review Division correctly determined that a person must be incarcerated to be eligible for sentence review and that this interpretation does not vio late the due process or equal protection clauses of the United States and Montana Constitutions.
Issue
¶2 Did the Sentence Review Division properly interpret § 46-18-903(1), MCA, as excluding Holt from eligibility for sentence review because his sentence is suspended and he is not incarcerated in the state prison?
Background
¶3 Holt pled guilty to the felony offense of sexual assault, in violation of § 45-5-502, MCA, pursuant to a plea agreement. On September 29, 1999, Holt received a ten-year suspended sentence. On October 13, 1999, Holt moved the District Court for a transcript of the sentencing hearing “for purposes of Sentence Review.” The court initially granted the request, but later stayed its order pending its determination of necessity for the transcript. In a letter to Holt’s counsel, the court stated, “it has occurred to me that Mr. Holt has no right to such review by the Sentence Review Division since he has not been sentenced to prison or the D.O.C., but rather received a probationary sentence.” Holt.filed an application for sentence review on November 1, 1999. The Sentence Review Division denied his application, determining that Holt did not qualify for sentence review because “his sentence was suspended in its entirety and it involved no actual incarceration.”
Discussion
¶4 Did the Sentence Review Division properly interpret § 46-18-903(1), MCA, as excluding Holt from eligibility for sentence review because his sentence is suspended and he is not incarcerated in the state prison?
¶5 Holt argues that § 46-18-903(1), MCA, does not require that he be incarcerated to be eligible for sentence review. He argues that the Sentence Review Division misinterpreted § 46-18-901(1), MCA, and applicable rules in denying him sentence review because he was not incarcerated. Holt argues that if the Division’s interpretation is correct, the sentence review statutes violate the due process and equal protection clauses of the Montana and the United States Constitutions.
¶6 The Sentence Review Division is an arm of the Montana Supreme Court, consisting of three district court judges. Section 46-18-901(1), MCA. The legislature granted the Sentence Review Division authority to adopt “any rules which will expedite its review of sentences.” Section 46-18-901(4), MCA. Pursuant to § 46-18-903(1), MCA,
Any person sentenced to a term of 1 year or more in the state prison by any court of competent jurisdiction may within 60 days from the date such sentence was imposed... file with the clerk of the district court in the county in which judgment was rendered an application for review of the sentence by the review division.
The Sentence Review Division, in denying Holt’s application for sentence review, found that under § 46-18-903(1), MCA, “sentence review is applicable only to defendants sentenced to a prison term (or other type of D.O.C. commitment) whereby the defendant is actually taken into custody.”
¶7 Under the rules of statutory construction, we consider the following factors:
(1) Is the interpretation consistent with the statute as a whole?
(2) Does the interpretation reflect the intent of the legislature considering the plain language of the statute?
(3) Is the interpretation reasonable so as to avoid absurd results?
(4) Has an agency charged with the administration of the statute placed a construction on the statute?
Montana Power Co. v. Cremer (1979), 182 Mont. 277, 280, 596 P.2d 483, 485 (citations omitted). The Sentence Review Division’s interpretation of § 46-18-903(1), MCA, as excluding a person who is not incarcerated from sentence review, comports with Montana’s rules of statutory construction: the interpretation is consistent with the sentence review statutes as a whole, reflects the intent of the legislature, avoids absurd or unduly harsh results, and is entitled to deference because the Sentence Review Division is charged with the administration of the sentence review statutes.
¶8 The sentence review statutes, considered as a whole, support the Sentence Review Division’s interpretation and reveal the intent of the legislature that sentence review was only intended for persons who are actually incarcerated. Section 46-18-901(2), MCA, mandates that the Division hold its meetings at Deer Lodge, the site of the Montana State Prison. (Rule 12 of Rules of the Sentence Review Division also includes the Women’s Correctional Center or another convenient place to hold the Sentence Review Division’s meetings.) Section 46-18-905(1), MCA, regarding the finality of the Sentence Review Di vision’s decisions, requires that a copy of the Division’s decisions be mailed to, among others, the “principal officer of the institution in which [the person sentenced] is confined.” Finally, Rule 16 of the Rules of the Sentence Review Division states that in reviewing sentences, “the Sentence Review Division shall consider whether the offender could have been dealt with adequately by ... suspended sentence ....” In combination, the foregoing statutes and rules evidence the intent of the legislature and support the interpretation of the Sentence Review Division that sentence review is not available to persons whose sentences are wholly suspended and who are not incarcerated.
¶9 Section 46-18-903(1), MCA, allows for the filing of an application for sentence review within 60 days from the date sentence was imposed. This statute does not lend itself to an interpretation whereby a defendant could seek sentence review twice-upon the initial suspended sentence and again upon revocation of the suspension. If we hold with Holt that a defendant can seek review of the initial judgment of suspended sentence, defendants whose suspended sentences are subsequently revoked beyond the 60 days, would be time-barred from applying for sentence review. Certainly, the sentence upon revocation is the more deserving of review. The Sentence Review Division’s interpretation of § 46-18-903(1), MCA, avoids such an absurd and unduly harsh result by excluding wholly suspended sentences from review. Rather, the more logical interpretation is that a defendant, upon revocation of suspension, has 60 days to seek review of his or her sentence.
¶10 The Sentence Review Division’s interpretation of § 46-18-903(1), MCA, is entitled to deference and respect because the Division is charged by the legislature with the administration of Montana’s sentence review statutes. See State v. Midland Materials Co. (1983), 204 Mont. 65, 70, 622 P.2d 1322, 1325 (citations omitted). We hold that the Sentence Review Division’s interpretation of § 46-19-903(1), MCA, is correct and is consistent with the rules of statutory construction.
¶11 Holt has further argued that even if the Sentence Review Division’s interpretation of § 46-18-903(1), MCA, is correct, such an interpretation violates the due process and equal protection clauses of the United States and Montana Constitutions. We have held that the standard of review for constitutional challenges to legislative enactments is:
[T]he constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt.
State v. Lorash (1989), 238 Mont. 345, 347, 777 P.2d 884, 886 (citation omitted).
¶12 Sentence review is not a constitutional right, but a system the legislature has voluntarily created. As such, there is no due process right to sentence review. It is within the discretion of the legislature to determine under what circumstances and conditions to allow sentence review. The State’s discretion in this matter is not subject to due process concerns unless “’it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.’” Montana v. Egelhoff (1996), 518 U.S. 37, 43, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361, 368 (quoting Patterson v. New York (1977), 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281). Because sentence review is a statutory right of relatively recent origin, the due process clauses of the United States and Montana Constitutions do not demand that sentence review be available at all and do not limit the legislature’s restriction of sentence review to those defendants who are actually incarcerated.
¶13 Holt also argues that granting the right to sentence review only to those felons who are actually incarcerated and not to those with wholly suspended sentences violates the equal protection clauses of the United States and Montana Constitutions. The first prerequisite to a meritorious equal protection claim is identifying the classes involved and determining whether they are similarly situated. See Matter of S.L.M. (1997), 287 Mont. 23, 32, 951 P.2d 1365, 1371. Holt’s equal protection claim fails because he-a felon with a wholly suspended sentence-is not similarly situated to those felons who are incarcerated. In State v. Renee, 1999 MT 135, 294 Mont. 527, 983 P.2d 893, we held that misdemeanor and felony offenders are not similarly situated for equal protection purposes and that it was not a denial of equal protection to deny misdemeanor offenders sentence review. Renee, ¶ 38. While Holt’s suspended sentence subjects him to some loss of liberty, he is not similarly situated to those felons who are actually incarcerated. We hold, accordingly, that there is no merit to Holt’s equal protection challenge.
¶ 14 Holt’s petition for writ of supervisory control is GRANTED and we order that Holt’s request to reverse the Sentence Review Division’s Order denying review of his sentence is DENIED.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, REGNIER, GRAY and NELSON concur.
|
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JUSTICE REGNIER
delivered the opinion of the Court.
¶1 Richard Raugust appeals from the convictions and sentencing contained in the judgment entered by the Twentieth Judicial District Court, Sanders County. We affirm.
¶2 Raugust presents the following issues on appeal:
¶3 1. Whether the District Court abused its discretion when it instructed the jury that it could not consider intoxication in determining the existence of a mental state, which is an element of the offense?
¶4 2. Whether the District Court abused its discretion when it denied Raugust the opportunity to present contemporary statements made by him prior to, and at the time of, his arrest?
¶5 3. Whether comments made by the prosecutor during closing argument deprived Raugust of a fair trial?
BACKGROUND
¶6 On August 12, 1997, Richard Raugust was charged by Information with four separate counts: Count I-deliberate homicide, a felony, in violation of § 45-5-102(1)(a), MCA; Count II-attempted arson, a felony, in violation of § 45-4-103 and § 45-6-103, MCA; Count Ill-tampering with or fabricating physical evidence, a felony, in violation of § 45-7-207(1)(a), MCA; and Count IV-attempted tampering with or fabricating physical evidence, a felony, in violation of §§ 45-4-103 and 45-7-207(1)(a), MCA.
¶7 With regard to Count I, the State specifically alleged that on or about July 24, 1997, Raugust purposely or knowingly caused the death of Joe Tash by shooting him in the head with a shotgun. As to Counts II and IV, the State alleged that on or about July 24, 1997, Raugust performed an act toward the commission of arson and tampering with physical evidence with the purpose of committing such offenses when he set fire to a fifth-wheel trailer containing the body and personal property of Joe Tash. As to Count III, the State alleged that on or about July 24, 1997, Raugust, believing that an official proceeding or investigation was pending or about to be instituted, altered or destroyed a. 12 gauge shotgun by fire with the purpose of impairing its availability in such proceeding or investigation.
¶8 At arraignment, Raugust signed a written acknowledgment of rights before entering a plea of not guilty with respect to all charges. A jury trial commenced on March 19, 1998. Following deliberations on March 26, 1998, the jury found Raugust guilty of Count I-deliberate homicide; Count II-attempted arson; and Count IV-attempted tampering with or fabricating physical evidence. With regard to Count Ill-tampering with or fabricating physical evidence, the jury found Raugust not guilty.
¶9 The District Court conducted a sentencing hearing on June 9, 1998. After amendments to the presentence report, sentencing recommendations from defense counsel and the prosecution, and a statement by Raugust, the District Court sentenced Raugust to life in prison on Count I-deliberate homicide; 20 years on Count Il-at-tempted arson; and 10 years on Count IV-attempted tampering with or fabricating physical evidence. The sentences imposed on Counts II and IV were ordered to run concurrent with the sentence imposed on Count I. Raugust was also sentenced to an additional 10 years for the use of a weapon in the commission of an offense to run consecutive to the sentences imposed on Counts I, II, and IV.
¶10 The District Court rendered judgment on June 9, 1998, referencing Raugust’s convictions and incorporating the sentences im posed. Raugust appeals from the convictions and sentences imposed by the District Court.
ISSUE 1
¶11 Whether the District Court abused its discretion when it instructed the jury that it could not consider intoxication in determining the existence of a mental state, which is an element of the offense?
¶12 The standard of review for jury instructions in a criminal case is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. See State v. Weaver, 1998 MT 167, ¶ 28, 290 Mont. 58, ¶ 28, 964 P.2d 713, ¶ 28 (citations omitted). In addition, we note that a district court has broad discretion when it instructs a jury. See Weaver, ¶ 28 (citations omitted).
¶13 Raugust alleges that the District Court erred when it instructed the jury that it could not consider evidence of intoxication for any purpose pursuant to § 45-2-203, MCA. Raugust argues that depriving him of the ability to admit intoxication evidence lessened the State’s burden of proof and confused the jury in violation of his due process rights guaranteed by Article II, Section 17 of the Montana Constitution.
¶14 The State contends that Raugust waived this argument because he did not object to the instruction on the ground that it violated his due process rights in the court below. The State also notes that Raugust did not request this Court to review this issue under the common law plain error doctrine in his opening brief. Further, the State contends that the instruction was justified by Raugust’s testimony that he was intoxicated on the night of the murder and that Raugust has failed to demonstrate any prejudice as a result of the instruction being given.
¶15 With regard to jury instructions, § 46-16-410(3), MCA, provides:
A party may not assign as error any portion of the instructions or omission from the instructions unless an objection was made specifically stating the matter objected to, and the grounds for the objection, at the settlement of instructions.
We have previously recognized that “[o]bjections to jury instructions proposed by the opposing party serve the same functions as eviden-tiary objections.” State v. Grimes, 1999 MT 147, ¶ 39, 295 Mont 22, ¶ 39, 982 P.2d 1037, ¶ 39. Rule 103(a)(1), M.R.Evid., requires a timely objection to the admission of evidence, along with the specific ground of objection if not apparent from the context, because “[t]he function of the objection is, first, to signify that there is an issue of law and, sec ond, to give notice of the terms of the issue.” Grimes, ¶ 39 (quoting 1 Wigmore on Evidence § 18 (Tiller rev. 1998)). Consequently, “[t]he specific ground for the objection is essential for the objection to be good.”State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304.
¶ 16 At issue is Instruction No. 19 offered by the State, which read as follows:
A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the Defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition.
The following exchange took place during the final settling of jury instructions at the close of the evidence with respect to this instruction:
THE COURT: The defendant also had an objection to State’s 19, which is the intoxication not a defense. You may make your record of that objection.
DEFENSE COUNSEL: Your Honor, we have never submitted in this case that the defendant did in fact what he’s accused of, but that he was intoxicated or otherwise impaired because of drugs or alcohol that would not-that would affect his ability to be criminally responsible. Our theory has been all along that he is not criminally responsible because he wasn’t there and he didn’t do anything. Therefore, I again think this instruction is improper and tends to confuse the jury.
THE COURT: Well, that proposed instruction is in MCJI 2-2-03 and will be given as Court’s 19.
¶17 The error urged on appeal by Raugust was not contained in the record of the objection to the instruction made during the final settling of jury instructions. Thus, Raugust has waived this argument on appeal and none of the circumstances listed in § 46-20-701(2), MCA, apply. Therefore, Raugust is barred from raising this issue on appeal.
¶18 However, at the end of his reply brief Raugust contends that the giving of Instruction No. 19 by the District Court was plain error and this Court should review this error pursuant to the common law plain error doctrine. Subsequently, the State filed a Motion to Strike Raugust’s request for plain error review on the basis that he was raising a legal theory for the first time in his reply brief.
¶19 We have previously declined to invoke the plain error doctrine where a party has made a request for plain error review for the first time in his reply brief. See State v. Hagen (1997), 283 Mont. 156, 159, 939 P.2d 994, 996. Pursuant to Rule 23, M.R.App.P., “[a]n issue first raised in a reply brief is not properly raised for consideration on appeal.” Hagen, 283 Mont. at 159, 939 P.2d at 996 (citation omitted). As a result, we decline to address this issue under our inherent power of common law plain error review.
¶20 A review of the jury instructions given by the District Court reveals that the jury was instructed on: (1) the elements of each offense charged and the State’s burden of proving each element beyond a reasonable doubt; (2) the definition of the mental states, purposely and knowingly; (3) that the existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense; (4) the difference between direct and circumstantial evidence; (5) witness credibility; and (6) the need for a unanimous verdict. Read as a whole, the jury instructions fully and fairly instruct the jury on the law applicable to the case. Accordingly, we conclude that the District Court did not abuse its discretion in instructing the jury.
ISSUE 2
¶21 Whether the District Court abused its discretion when it denied Raugust the opportunity to present contemporary statements made by him prior to, and at the time of his arrest?
¶22 The standard of review for evidentiary rulings in a criminal case is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial court and will not be overturned absent a showing of an abuse of that discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263.
¶23 Raugust contends that on each occasion that he attempted to question witnesses regarding his prearrest statements, the prosecution objected on the grounds of hearsay. Raugust argues that the District Court erred in sustaining the prosecution’s objections because these statements were not offered for the truth of the matter asserted, but to prove his state of mind. In addition, Raugust argues that he was denied the opportunity to present a defense due to the District Court’s exclusion of evidence reflecting a reasonable doubt as to his guilt.
¶24 The State asserts that a review of the references to the record provided by Raugust in support of his argument demonstrates that he failed to show the testimony was excluded, he failed to make an offer of proof with respect to the testimony, and he failed to inform the District Court that the statements were being offered for a nonhearsay purpose. As a result, the State argues that Raugust has waived this argument on appeal and, in addition, Raugust has failed to demonstrate any prejudice due to allegedly being denied the opportunity to present the testimony. We agree with the State.
¶25 The first reference to the record cited by Raugust in support of his argument is to witness testimony at trial indicating that when asked by the witness where Joe Tash was on the morning of July 24, 1997, Raugust stated that Joe was probably sleeping in and would be at work later. While the State objected to this testimony as “self-serving” hearsay, the District Court overruled the objection. Thus, this testimony was not excluded.
¶26 The second reference to the record cited by Raugust in support of his argument is to an objection by the State on the basis of “self-serving” hearsay made in response to defense counsel’s question to the same witness regarding whether Raugust had told her where he had spent the night or what he had been doing. Raugust made no argument in response to the State’s objection that the question was being asked for a nonhearsay purpose or that it was being asked to establish his state of mind on the morning of the murder. In addition, Raugust made no offer of proof regarding what he expected the witness’ response to prove.
¶27 Early on, we established the rule in civil and criminal cases that:
[W]here an objection to evidence is sustained, and the answer of the witness is not apparent, an offer of proof is necessary to enable the Supreme Court to review the ruling. The purpose of an offer of proof is to advise the court as to the nature of the evidence intended to be elicited by the challenged question, in order to enable the court to determine whether or not the ruling made was correct.
State v. Jennings (1934), 96 Mont. 80, 88, 28 P.2d 448, 450 (quotations and citations omitted). Hence, the failure to make an adequate offer of proof results in a waiver of the issue on appeal. See Illinois v. Peeples (Ill. 1993), 616 N.E.2d 294, 310.
¶28 Here, the State’s obj ection on the basis of hearsay was sustained and Raugust made no offer of proof or argument with respect to why he felt the objection should be overruled. In addition, the witness’ answer was not apparent. Thus, we conclude that Raugust waived his argument on appeal by failing to make an offer of proof once the objec tion had been sustained. Moreover, Raugust testified at trial regarding where he had spent the night and what he had been doing that evening.
¶29 Raugust’s third reference to the record cited in support of his argument is to an objection made by his counsel in response to the State’s cross-examination of him regarding whether he had ever used methamphetamine. Raugust’s attorney objected on the basis of relevancy, contending that there had been no evidence that the parties involved had used any drug other than marijuana on the night in question or at any time relevant to this issue. The State argued that this testimony went to Raugust’s credibility and the District Court overruled the objection. We fail to see how requiring Raugust to state whether he had ever used methamphetamine supports Raugust’s argument that he was not allowed to present a defense or put forth evidence regarding his state of mind.
¶30 The fourth reference to the record cited by Raugust in support of his argument is to testimony by Officer Abbey regarding Raugust’s reaction of disbelief upon being arrested. No objection was made by the State and no evidence was excluded. However, on the page immediately preceding Raugust’s reference, the State made a hearsay objection when defense counsel asked Officer Abbey whether he recalled Raugust saying anything to him at the time of arrest. The District Court sustained this objection on the basis of hearsay. Again, Raugust made no argument in response to the State’s objection, made no offer of proof regarding the testimony he was attempting to elicit, and the witness’ answer to the question was not obvious. Thus, Raugust waived his argument on appeal. Moreover, Raugust testified at trial and his counsel had an opportunity to ask him what he had said to Officer Abbey at the time of his arrest.
¶31 Accordingly, we conclude that the District Court did not abuse its discretion in the instances referenced by Raugust where it denied Raugust the opportunity to present contemporary statements made by him prior to, and at the time of his arrest.
ISSUE 3
¶32 Whether comments made by the prosecutor during closing argument deprived Raugust of a fair trial?
¶33 Raugust argues that the prosecution’s closing argument deprived him of a fair trial. Raugust’s first allegation of misconduct is that the prosecution misled the jury by stating a key prosecution witness had not been charged in another homicide which had occurred in Sanders County when the prosecutor knew that the witness may be charged in connection with that crime. Raugust’s next allegation is that the prosecution attempted to shift the burden of proof to Raugust by arguing that Raugust had not proven his story. Raugust also contends that the prosecution diminished the State’s burden of proving its case beyond a reasonable doubt by mentioning that the prisons were full of persons convicted beyond a reasonable doubt. Lastly, Raugust contends that the prosecution improperly commented on his guilt when it stated that he was “guilty as sin.”
¶34 In response, the State contends that Raugust failed to object to these statements at trial and thus, has waived this issue on appeal. The State also asserts that no misconduct occurred and Raugust has failed to demonstrate prejudice as a result of the alleged misconduct. Although Raugust concedes that his trial counsel did not object to any of the previously mentioned comments, he asserts that the alleged prosecutorial misconduct is plain error, or in the alternative, that his trial counsel was ineffective.
¶35 Section 46-20-104(2), MCA, bars review of any alleged errors not objected to at trial:
Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).
See also State v. Ogle (1992), 255 Mont. 246, 250-51, 841 P.2d 1133, 1135-36. Raugust does not contend that any of the allegations of pros-ecutorial misconduct fall within the exceptions listed in § 46-20-701(2), MCA.
¶36 As a general rule, this Court will not address issues that were not raised at trial. See State v. Finley (1996), 276 Mont. 126, 135, 915 P.2d 208, 214. However, we have held that:
[T]his Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.
Finley, 276 Mont. at 137, 915 P.2d at 215. Given the legislature’s intent to restrict plain error review by its enactment of § 46-20-701, MCA, our inherent power of common law plain error review is reserved for exceptional cases and is to be used sparingly. See State v. Miller, 1998 MT 177, ¶ 36, 290 Mont. 97, ¶ 36, 966 P.2d 721, ¶ 36 (citations omitted).
¶37 Raugust urges this Court to invoke its inherent plain error review to avoid manifest injustice and the continued compromise of the integrity of the judicial process, which resulted from the prosecutor’s comments during closing argument that allegedly violated Raugust’s fundamental right to a fair trial, shifted the burden of proof to him, misled the jury, and imposed the prosecutor’s personal opinion as to Raugust’s guilt on the jury. Having reviewed the facts and circumstances of this case, we determine that it does not present the requisite exceptional case to invoke the common law plain error doctrine. The alleged errors were either misstatements of fact, taken out of context of the prosecutor’s argument, constituted the State’s analysis of the evidence, or later cured by the jury instructions. We conclude that none of the alleged errors, standing alone, or taken together, resulted in a manifest miscarriage of justice or compromised the integrity of the judicial process. Accordingly, we decline to address the constitutional issues raised in relation to the alleged pros-ecutorial misconduct.
¶38 Raugust also asserts that his counsel’s failure to object to the prosecution’s comments during closing argument was not a tactical decision, which constitutes ineffective assistance of counsel. In response, the State contends that no prosecutorial misconduct occurred and thus, Raugust’s counsel was not constitutionally ineffective for failing to object. The State goes on to allege that Raugust has not shown any prejudice as a result of the comments.
¶39 We review claims of ineffective assistance of counsel pursuant to the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. See Bone v. State (1997), 284 Mont. 293, 303, 944 P.2d 734, 740. The two-part test set forth in Strickland for ineffective assistance of counsel is as follows:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S. Ct. at 2064.
¶40 “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also State v. Hanson (1997), 283 Mont. 316, 327, 940 P.2d 1166, 1173. “Under Strickland, judicial scrutiny of counsel’s performance must be highly deferential and the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. McLain (1991), 249 Mont. 242, 245, 815 P.2d 147, 149 (citation omitted).
¶41 Upon careful review of the instances of prosecutorial misconduct alleged by Raugust, we determine that the prosecution’s comments during closing argument were not improper. First, the prosecution’s statement that a key prosecution witness had not been charged in connection with another homicide that had occurred in Sanders County was accurate at the time it was made and the statement was made in response to Raugust’s account of this witness’ connection to the previous homicide. Thus, the statement presented to the jury did not mislead them, nor was it misrepresented to them.
¶42 Second, Raugust’s contentions that the prosecution attempted to shift the burden of proof to Raugust and attempted to diminish the State’s burden of proving its case beyond a reasonable doubt are without merit. The references to the record cited by Raugust in support of this argument are as follows:
Let’s go back to concrete reality because for all that talk in an hour and a half, this defendant and the defense attorney failed to offer any explanation for who, other than the defendant, could have driven that Eagle vehicle out of the crime scene that morning.
Let’s talk real briefly, though, about the law. Reasonable doubt has been used in every criminal case in this country. It’s been in every criminal trial ever used in this country. It’s not an impossible standard. The prisons are full of people who have been convicted beyond a reasonable doubt.
Now, I’ve been a prosecutor for nine years and I’ve done a lot of trials. And every time I hear a defense attorney get up and present to a jury that it’s almost an impossible standard, it’s not.
¶43 We have previously determined that “it is proper for a prosecutor to comment on conflicts and contradictions in testimony, as well as to comment on the evidence presented and suggest to the jury inferences which may be drawn therefrom.” State v. Gladue, 1999 MT 1, ¶ 15, 293 Mont. 1, ¶ 15, 972 P.2d 827, ¶ 15 (citations omitted). In this case, the prosecution properly commented on conflicts and contradictions in the testimony, commented on the evidence presented, and suggested to the jury inferences that could have reasonably been drawn from the evidence. In addition, the State was merely responding to Raugust’s analysis of the reasonable doubt standard of proof. Raugust has failed to show how the referenced comments shifted the burden of proof to Raugust or diminished the State’s burden of proof.
¶44 Third, Raugust’s contention that the prosecution improperly commented on his guilt when it stated that he was “guilty as sin” is also without merit. Rule 3.4(e) of the Montana Rules of Professional Conduct prohibits an attorney from stating a personal opinion as to the guilt or innocence of an accused during trial. We have previously expressed our disapproved of the State’s use of the referenced simile. See State v. Armstrong (1980), 189 Mont. 407, 427, 616 P.2d 341, 352. However, as in Armstrong, we believe that when taken in context with the language of the remainder of the closing argument, the cited language appears to be based upon the State’s analysis of the evidence and is not an expression of the State’s personal opinion within the explicit purview of the disciplinary rules.
¶45 Consequently, there was no basis for Raugust’s attorney to object to the referenced comments made by the prosecution during closing argument. As a result, Raugust cannot satisfy the first prong of the Strickland test to establish that his attorney provided ineffective assistance of counsel.
¶46 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and TRIEWEILER concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 By Information filed in the District Court for the Sixteenth Judicial District in Garfield County, the Defendant, Clay Taylor, was charged with two counts of impersonating a public servant, a misdemeanor, in violation of § 45-7-209, MCA (1993), and the Defendant, Karen Taylor, was charged with impersonating a public servant by accountability, a misdemeanor, in violation of § 45-7-209, MCA (1993), and § 45-2-302(3), MCA (1993). Following a jury trial, the Taylors were convicted of the charged offenses. The District Court sentenced the Taylors to a two-year deferred sentence, community service, a $500 fine per charge and other conditions. The Taylors appeal their convictions and sentences. We affirm in part and remand in part.
¶2 The following issues are presented on appeal: .
¶3 ■ 1. Did the District Court err when it instructed the jury on § 45-7-209, MCA (1993), the impersonating a public servant statute? ¶4 2. Was there sufficient evidence to support Karen Taylor’s conviction for impersonating a public servant by accountability?
¶5 3. Were the Taylors denied their right to a speedy trial?
¶6 4. Were the Taylors’ sentences illegal?
¶7 5. Were the Taylors deprived of due process and equal protection?
FACTUAL BACKGROUND
¶8 The Defendants, Clay and Karen Taylor, are husband and wife who live on and work their ranch in Garfield County. The Taylors are associated with persons who reside in and around Garfield County, known as the “Freeman.” In early 1994, several of the group’s members were suffering financial difficulties due to debts owed to creditors such as GMAC, the IRS, and the Federal Land Bank.
¶9 On January 27, 1994, Richard Clark, Dan Peterson, Rodney Skurdal, and Gary Clark entered the office of JoAnn Stanton, the Clerk and Recorder of Garfield County, while a crowd of approximately 30 other people gathered outside of Stanton’s office. The four men requested that Stanton file and record a document entitled “Writ of Habeas Corpus,” which they stated would allow them to establish their own supreme court in Garfield County. Following Stanton’s refusal to file the document without a proper filing fee, the four men informed Stanton that they were going to conduct their own supreme court in the Garfield County courtroom that day.
¶10 Following the group’s declaration that they were going to conduct their own supreme court in the Garfield County courtroom, Stanton called county attorney, Nickolas Murnion, who informed the group that they could not use the courtroom. Garfield County Sheriff, Charles Phipps, also arrived and informed the group that they could not use the courtroom. However, the group decided to use the courtroom anyway. Sheriff Phipps did not attempt to stop the group from using the courtroom, but remained in the courtroom and videotaped the group’s proceedings.
¶11 Richard Clark presided over the proceedings and announced that the group was establishing their own common law court. The group prepared several documents entitled ‘Writ of Attachment,” which included the heading “Justices’ Court” and listed Clay Taylor’s name as “Justice.” The group requested that Sheriff Phipps serve the various writs on the named parties and threatened to serve a Writ of Attachment on the Sheriff’s personal property if he refused. The group then ended the proceedings and left the Garfield County courtroom.
¶12 On February 8,1994, in response to the group’s activities of January 27, 1994, the Garfield County Commissioners passed Resolution 94-11 which stated that the group’s supreme court of Garfield County:
[I]s a fictitious court with no basis under the Montana Constitution or the statutes of Montana and no facilities owned and controlled by Garfield County including the Courtroom of the Garfield County Courthouse shall be available for use of said fictitious “Supreme Court of Garfield County/comitatus” from this time forward; and
BE IT FURTHER RESOLVED that any future proceedings of said fictitious “Supreme Court of Garfield County/comitatus” on Garfield County facilities shall be considered criminal trespass ....
¶13 Following the Garfield County Commissioners’ Resolution, Stanton received several documents that she was requested to file and record. The documents included the typed statement, “Justice of the peace in and for Garfield County” and then the written signature of Clay Taylor. Some of the documents also included Karen Taylor’s written signature and the words “Jurat in Law: Honorable Justice Karen Taylor, in and for Garfield county.”
¶14 In March 1994, Renee Moomey, an attorney representing GMAC, filed a complaint in the Garfield County District Court against Gary and Penelope Despois in which she sought the payment of a $2000 arrearage owed for the Despois’ truck or, alternatively, the truck’s repossession. Subsequently, Moomey received two documents, both captioned “State of Montana vs. Renee L. Moomey,” one entitled “Common Law Affidavit by Penelope S. DesPois, sui juris” and the other entitled “Summons.” Both documents bore Clay Taylor’s signature as “Justice of the Peace,” and the “Summons” bore the signature of Karen Taylor as a “common law witness” and “Jurat in Law.” The documents were personally “served” on Moomey by Dan Peterson. ¶15 Don Dahlseide, of the Small Business Administration, was a loan officer working on collection of the debt of William and Agnes Stanton. Dahlseide informed the Stantons that their loan with the Small Business Administration was delinquent. Following Dahlseide’s contact with the Stantons he received a document captioned “State of Montana vs. U.S. Small Business Administration, Don Dahlseide et al.,” and entitled “Common Law Affidavit by William L. Stanton.” The document was signed by Clay Taylor as “Justice of the Peace.”
¶16 On November 4, 1994, following a jury trial in the Garfield County Justice Court, Clay Taylor was convicted of two counts of impersonating a public servant and Karen Taylor was convicted of impersonating a public servant by accountability. On December 8,1994, the Taylors filed a notice of appeal with the District Court. Accordingly, the State filed an Information with the District Court on January 30,1995, charging Clay Taylor with two counts of impersonating a public servant, a misdemeanor, in violation of § 45-7-209, MCA (1993), and the Defendant, Karen Taylor, with impersonating a public servant by accountability, a misdemeanor, in violation of § 45-7-209, MCA (1993), and § 45-2-302(3), MCA (1993). The Information charged the following:
That the Defendant, Clay Taylor, falsely pretended to hold a position in the public service, namely Justice of the Peace, with the purpose to induce Don Dahlseide to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice, by Defendant’s actions in issuing a Common Law Affidavit ....
That the Defendant, Clay Taylor, falsely pretended to hold a position in the public service, namely Justice of the Peace, with the purpose to induce Renee L. Moomey to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice, by Defendant’s actions in issuing a Summons and Common Law Affidavit....
That the Defendant, Karen Taylor, with the purpose to facilitate the commission of the offense of impersonating a public servant, aided or abetted Clay Taylor by Defendant’s actions in signing and affirming the appointment of Clay Taylor as “Justice of the Peace”
¶17 On February 2,1995, the State requested a change of venue for the place of trial. On February 28,1995, the Taylors pled not guilty to the charges against them. The Taylors requested that the omnibus hearing be set after 60 days, and waived their right to a speedy trial for that 60-day period. On June 27,1995, the Taylors requested a continuance in order to find new counsel. On August 4,1995, the District Court granted the Taylors’ request and ordered them to retain counsel by September 8,1995. On September 25,1995, the District Court issued its scheduling order which established January 17,1996 as the date of trial. On October 23,1995, the Taylors filed a motion to amend the scheduling order.
¶18 At the pretrial hearing on December 21,1995, the Taylors requested that the District Court amend its scheduling order and requested additional time before trial. The District Court continued the trial until March 18,1996. On March 4,1996, upon its own motion, the District Court continued the trial until a later date, stating that following the District Court’s ruling on defense motions the court would set a scheduling conference. On October 22,1996, the District Court set forth its memorandum and order regarding defense motions and the state’s motion for change of venue. On November 6, 1996, the Taylors filed a motion to dismiss for lack of speedy trial and a motion for disqualification of Judge Hegel. On June. 10, 1997, the Taylor’s motion to disqualify was denied. The District Court scheduled trial for November 17, 1997.
¶19 A jury trial was held on November 17 and 18,1997. The Taylors were found guilty of the charges and sentenced to a two-year deferred sentence, 40 hours of community service, and a $500 fine for each charge. The Taylors now appeal their convictions and sentences.
DISCUSSION
ISSUE 1
¶20 Did the District Court err when it instructed the jury on § 45-7-209, MCA (1993), the statute which sets forth the offense of impersonating a public servant?
¶21 The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. See State v. Johnson, 1998 MT 289, ¶ 28,291 Mont. 501, ¶ 28,969 P.2d 925, ¶ 28. Additionally, we recognize that a district court has broad discretion when it instructs the jury. See State v. Weaver, 1998 MT 167, ¶ 28, 290 Mont. 58, ¶ 28, 964 P.2d 713, ¶ 28.
¶22 Section 45-7-209, MCA (1993), provides:
(1) A person commits the offense of impersonating a public servant if he falsely pretends to hold a position in the public service with purpose to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice.
¶23 The Taylors assert that the District Court erred by not instructing the jury that the proper interpretation of this statute requires that the State prove that Clay Taylor pretended to be a specific person in the public service, for example, that Clay Taylor was impersonating the actual Justice of the Peace of Garfield County. The Taylors contend in the alternative that the statute is void for vagueness.
¶24 The District Court gave the following jury instruction:
A person commits the offense of Impersonating a Public Servant if he falsely pretends to hold a position in the public service with purpose to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice.
¶25 Section 1-2-101, MCA, provides the following rule of statutory interpretation:
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 or to omit what has been inserted.
¶26 The portion of the statute at issue states: “falsely pretends to hold a position in the public service.” Clay Taylor was charged with impersonating a public official based on his representation that he was a “Justice of the Peace.” Clearly, the statute does not include language requiring that a person must falsely pretend to hold a specific position in the public service. In this case, it did not require that Clay Taylor pretended to be the actual Justice of the Peace of Garfield County. The Taylors’ assertion that the statute should be interpreted in such a manner violates the rule of statutory construction set forth in § 1-2-101, MCA. Accordingly, we conclude that the District Court’s jury instruction accurately explained the statutory law applicable to the case pursuant to § 45-7-209, MCA (1993).
¶27 The Taylors alternately contend that if the statute is not interpreted by this Court in the same maimer as the Taylors interpret the statute, then the statute is void for vagueness.
¶28 We presume that all statutes are constitutional. It is the duty of courts, if possible, to construe statutes in a manner that avoids unconstitutional interpretation. See State v. Nye (1997), 283 Mont. 505, 510, 943 P.2d 96, 99. When the constitutionality of a statute is challenged, the party making the challenge bears the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional, and any doubt is to be resolved in favor of the statute. See Nye, 283 Mont, at 510, 943 P.2d at 99.
¶29 In State v. Crisp (1991), 249 Mont. 199,202,814 P.2d 981,983, we stated the following test for whether a statute is void on its face for vagueness:
A statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties.
(Citations omitted.) .
¶30 The conduct proscribed by § 45-7-209, MCA (1993), is not unconstitutionally vague. The statute clearly sets forth that anyone who pretends to hold a position in the public service with the purpose to induce another to submit to that authority or which causes another to rely upon that pretense to his benefit, is within the conduct proscribed by the statute. The language of § 45-7-209, MCA (1993), is sufficient to give a person of ordinary intelligence fair notice that conduct such as the Taylors’ is forbidden. Accordingly, we conclude that § 45-7-209, MCA (1993), is not unconstitutionally vague on its face.
ISSUE 2
¶31 Was there sufficient evidence to support Karen Taylor’s conviction for impersonating a public servant by accountability?
¶32 We review the sufficiency of the evidence in a criminal case to decide whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See State v. Heffner, 1998 MT181, ¶ 22,290 Mont. 114, ¶ 22,964 P.2d 736, ¶ 22.
¶33 Section 45-2-302, MCA (1993), states the following, in relevant part:
A person is legally accountable for the conduct of another when:
(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.
¶34 Karen Taylor asserts that the evidence presented at trial was insufficient to support her conviction for impersonating a public servant by accountability. Karen contends that evidence of the required intent or purpose to promote or facilitate Clay Taylor’s actions was not presented.
¶35 However, the evidence reveals that Karen was present on January 27,1994, when the group of citizens took over the Garfield County courtroom in order to set up their own supreme court of Garfield County. Joann Stanton, the Clerk and Recorder of Garfield County testified that she received a document entitled “Common Law Affidavit,” which was signed by Karen Taylor, among others, which pur ported to remove the Garfield County Commissioners from office. Stanton also testified that she was requested to file a document which set forth Clay Taylor’s appointment as “Justice of the Peace, in and for Garfield County” which was also signed by Karen Taylor.
¶36 Stanton testified that she received another document, entitled “Writ of Protection,” issued by Karen Taylor, which identifies Clay Taylor as “Justice of the Peace,” and bears Clay’s written signature as well as Karen’s written signature. Additionally, the document entitled “Summons” received by attorney Renee Moomey, which contained the caption “State of Montana vs. Renee L. Moomey” and was signed by Clay Taylor as “Justice of the Peace” was also signed by Karen Taylor as “Jurat in Law.”
¶37 Based on the testimony and evidence presented at trial, viewed in a light most favorable to the prosecution, we conclude that there existed sufficient evidence from which a rational jury could have found that Karen Taylor, with the purpose to facilitate Clay Taylor’s impersonation of a Justice of the Peace, aided or abetted Clay Taylor as required by § 45-2-302, MCA. Accordingly, we conclude that there was sufficient evidence to support Karen Taylor’s conviction for impersonating a public servant by accountability.
ISSUE 3
¶38 Were the Taylors denied their right to a speedy trial?
¶39 The Taylors assert that they were denied their right to a speedy trial because 1074 days passed between the date of appeal de novo from their Justice Court conviction and the date of their District Court trial. The Taylors contend that of the 1074 days, 921 days are chargeable to the State, and that during this time period they were prejudiced by the media coverage of the Freeman stand-off, as well as the personal anxiety and family problems which resulted from having criminal charges pending against them for such a long period of time.
¶40 In response, the State asserts that this issue is not reviewable as part of this appeal because the District Court record before this Court does not include the District Court’s order deciding the Taylors’ motion to dismiss for lack of speedy trial, nor a transcript of any proceeding at which the motion was heard. In the alternative, the State contends that this Court should remand this issue to the District Court for consideration pursuant to this Court’s recent decisions in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, and State v. Hardaway, 1998 MT 224,290 Mont. 516,966 P.2d 125, for development of the record and entry of written findings of fact, conclusions of law, and an order.
¶41 Because the District Court’s decision regarding the Taylors’ motion to dismiss for denial of speedy trial cannot be found in the District Court’s record, we conclude that it is necessary to remand this issue to the District Court for a hearing to consider the Taylors’ motion to dismiss for lack of speedy trial, applying the test and analysis set forth in Bruce and Hardaway.
ISSUE 4
¶42 Were the Taylors’ sentences illegal?
¶43 In State v. Lafley, 1998 MT 21,287 Mont. 276,954 P.2d 1112, we held that “in a direct appeal, the defendant is limited to those issues that were properly preserved in the district court and to allegations that the sentence is illegal or exceeds statutory mandates.” Lafley, ¶ 26. Further, we have held that “a sentence is not illegal when it is within the parameters provided by statute.” Lafley, ¶ 26.
¶44 The Taylors challenge their two-year deferred sentence and total fines of $1500, on the bases that they were indigent and therefore a fine was not allowed, and that the District Court failed to clearly explain the reasons for their sentences in violation of § 46-18-102(3)(b), MCA.
¶45 The State contends that the sentences imposed on the Taylors were not illegal. The State further asserts that because the Taylors failed to object at the time of sentencing to the sentence imposed on them, or the District Court’s explanation of their sentences, this issue is waived on appeal.
¶46 Section 46-18-201, MCA, provides the following in relevant part:
(l)(a) Whenever a person has been found guilty of an offense upon a verdict of guilty or a plea of guilty or nolo contendere, a sentencing judge may defer imposition of sentence, except as otherwise specifically provided by statute, for a period:
(ii) not exceeding 2 years for a misdemeanor... if a financial obligation is imposed as a condition of sentence ....
¶47 Section 46-18-231(3), MCA, provides:
The sentencing judge may not sentence an offender to pay a fine unless the offender is or will be able to pay the fine ....
¶48 The Taylors have failed to cite to anything in the record which would support their assertion that the fine portion of their sentences is illegal because of their inability to pay the fines. The District Court had no information regarding the Taylors’ alleged indigency at the time of sentencing, nor did the Taylors object to the imposition of the fine at the time of sentencing based on an inability to pay the fines. Accordingly, absent facts which would support the Taylors’ assertion that the imposition of a fine was illegal because of the Taylors’ alleged indigency, we conclude that the Taylors have waived this issue on appeal by failing to object at the time of sentencing.
¶49 Additionally, our review of the sentencing hearing transcript discloses that the Taylors failed to object to the sufficiency of the District Court’s reasons for the imposition of the sentence. Accordingly, the Taylors have also waived this issue on appeal.
ISSUE 5
¶50 Were the Taylors deprived of due process and equal protection? ¶51 The Taylors assert that the District Court denied them due process and equal protection because of the District Court’s bias, which is evidenced by the District Court’s failure to rule in the Taylors’ favor on their motions and objections. The Taylors set forth twelve instances which they allege support their contention that they have been denied due process and equal protection. The Taylors, however, do not set forth any legal authority in support of their assertions. ¶52 The State points out that the Taylors failed to specifically object to any of the instances of alleged bias of the District Court and, therefore, asserts that this is a constitutional argument that the Taylors did not make to the District Court. Consequently, the State contends that the Taylors have failed to preserve this issue for appeal. We agree.
¶53 Section 46-20-701(2), MCA, provides:
Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.
¶54 Because the Taylors failed to object to the constitutional errors they now allege as provided for in § 46-20-104, MCA, and because none of the exceptions set forth in § 46-20-701(2), MCA, apply in this case, we conclude that the Taylors have waived this issue and cannot raise it for the first time on appeal.
¶55 For these reasons, we affirm the District Court in part and remand to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and REGNIER concur.
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] |
MR. COMMISSIONER CALLAWAY
prepared tbe opinion for the court-.
Election contest. Clarence R. Lane, an elector of Rosebud county, contests the right of Charles W. Bailey to hold the office of county clerk. Bailey and one Roderick McRae were opposing candidates for the office, Bailey being the democratic, and McRae the republican, candidate. The canvassing board found that B:ailey had received a majority of the votesi oast for the office of county clerk, and declared him elected. As ground for contest, Lane alleged that a number of persons, exceeding con-testee’s majority, who were not entitled to vote in said county, had voted for contestee; that they were not bona» fide residents thereof, but had been, brought into the county; thirty days of thereabouts, prior to the election, pursuant to a conspiracy entered into by James S'. Hopkins, Fred Ramsey, William McCarthy, William J. Nix and others, to colonize Rosebud county by illegally importing and bringing into the county large numbers of persons shortly before the- election, and causing them to be registered- and to vote the democratic ticket, and for said Charles W. Bailey; which conspiracy, according to- the allegations of the complaint, was accordingly carried out. The complaint, or statement of contest, contains this allegation: “That said persons so- illegally brought into said county of Bosebud were induced by the aforesaid parties to go into said county under a promise of unusual and exorbitant wages being paid them for.their services as laborers, and on the further promise and representation that they could return to their various homes without expense as soon as the election was over.”
To the complaint the contestee filed an answer which, in addition to a general denial, alleged that Bailey was in fact elected over McRae' by a, majority o.f 82 legal votes, for the reason that at Hathaway precinct 18 persons, and at Rosebud precinct 49 persons, had illegally registered without ever having taken or subscribed, or offered to take or subscribe, the oath prescribed by Section 1209 of the Political Code, as amended. This the contestant denied in his reply, and further alleged that said persons were in fact duly qualified voters in all respects, and that if they did not take the oath it was the fault of the registry agent, and not the fault of the voters.
The pleadings are of great length, and only the gist of the issues' is given here. Trial was to the court, sitting without a jury. The court found that 24 illegal votes had been cast and counted for the1 contestee, deducted the same from the number of votes received by him, and declared McRae elected, and entitled to the office of county clerk. Prom this judgment the contestee has appealed.
Counsel for contestee urge that the complaint is not verified as required by the statute, which prescribes that the statement must be verified by the affidavit of thei contesting party that the matters and things therein contained are true. (Code of Civil Procedure^ Sec. 2014.) The verification attached was in the usual form required by Section 731 of the same Code when a party to an action verifies a pleading. This was a substantial compliance with Section 2014, supra, and is sufficient. (Kirie v. Rhoads, 46 Cal. 398.)
Contestee insists tbat the 67 men named in bis answer were not qualified voters, because they failed to take tbe oath set forth in Section 1209 of the P'olitical Code, as amended. (Session Laws. 1897, p. 118.) The proof shows, that the electors presented themselves before the registry agent for the purpose. of complying with the law which requires a voter to be registered. They gave the agent all the. information he asked concerning their qualifications as voters, and he entered their names as such upon the official register. According to his testimony, he did not think it was necessary for them to1 take the oath. Their names regularly appeared upon the official register, the copies thereof, and the check lists, as. well as upon tire lists posted in the precincts and in the office of the county clerk. The fact that their names appeared in the check lists and copies of the official register was. prima facie evidence of their right to vote.’ (Political Code, Sec. 1234, as amended; Session Laws 1897, p. 123.) That the electors were registered without taking the oath was not their fault. That a registry agent neglects his duty should not deprive an elector of the right, to exercise his franchise. If the elector may be deprived of his right to vote in this manner, an unprincipled registry agent may change the political status of a precinct, at will, and by concerted action on the part of a number of such the political complexion of a county may be easily changed, and the popular will effectually thwarted. If the elective franchise may be thus tampered with, incalculable abuses will creep into the state. The purpose of the statute is. to. prevent any but legal electors from voting. It demands good faith. It is not intended to. prevent those, who are qualified to vote from doing so. Before the elector is entitled to be registered he may be compelled to take the oath prescribed in Section 1209, supra — the statute, contemplates that he shall be compelled to take it. If he fails to. take the oath through the fault of the. registry agent, and is. challenged ’ on that ground before that officer closes his book, he may qualify on election day. This is clearly one of the purposes of Sections 1213 and 1214 of the Political Code, as- amended. (Session Laws 1897, p. 121 et seq.) Section 1213 provides that,, on the next day succeeding tba.t on which the registration of electors shall “be closed, the' registry agents must with all reasonable expedition, and within four days, prepare and cause to be written or printed a full, complete and true list of all the names registered by them and then remaining on the official register for each election precinct, alphabetically arranged, commencing with the surname of each, and then must write or print such reasonable number of copies of each registration district list-as they may deem necessary, showing on one sheet, but under separate headings in such list, the registered voters in each precinct in the district, and post copies of the same in at least five public and conspicuous places, within each and every district to which they apply, and shall also. furnish one, attested by his oath as true and correct, to the county clerk. Section 1214 provides that: “The registry agents must give notice in said lists that they will receive objections to the right to vote of any person so registered until six o’clock p. m. on the Saturday previous to the day of election; and also requesting all persons whose, names may he erroneously entered in said lists or erroneously canceled upon the the ‘Official Register’ to appear at the proper registry' office and have such error corrected. Such objections to- the right to vote of any person registered must be made only by a qualified elector, in writing duly verified, setting forth the grounds of objection or disqualification. The registry agent before whom any such affidavits, are made must carefully preserve the same and deliver them, with the ‘Check List’ and other papers required by this chapter, to be delivered •to the judges of election, as in this chapter provided, and he must write distinctly opposite to the name of any person to whose qualifications, as an elector objections, may be thus made, the words ‘to. be challenged,’ or words- to that effect. It is the duty of the judges of election, if on election day sucli person who has been objected to applies to vote, to- test, under oath his qualifications and if he is found to be disqualified, from any cause under the. law, or if he refuses to take an oath as to his qualifications he must not be permitted to vote. * *
McCrary, in his work on Elections, says: “It is a rule well grounded in justice and reason, and well established by authority and, precedent, that the voter shall not be deprived of his rights as an ©lector, either by the, fraud or a mistake of the election officer, if it is possible to prevent it.” (4th Ed. Sec. 231.)
Section- 2 of Article VI of the North Carolina Constitution provides that: “It shall be the duty of the, general assembly to provide from time to, time for the registration of all electors, and no person shall be allowed! to vote without registration, or to register, without first taking an oath to support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith.” The supreme court of that state says: “This section of the Constitution provides, that the ‘general assembly’ shall pass registration laws, and that no one shall be entitled to> register without taking an oath, and that no one shall vote whoi is not registered. This provision of the Constitution, that no one shall be entitled to register without taking an oath to support the Constitution of the state and of the United States, is directed to the registrars. It must be to them and to them alone, as is said by this court in Southerland v. Goldsboro, 96 N. C. 49, 1 S. E. 160. But if the registrar, through inadvertence, registers a qualified voter, who, is entitled to register and vote, without administering the prescribed oath to him, shall he, for this negligence of the officer, be deprived of his right to vote, and thereby the will of the maj'ority defeated? And if this omission was not through inadvertence, but with a view to- entrap the voter and thus defraud him out of his vote, it is much more the reason why he should not be, and that such methods should not be allowed to prevail. We do not hold that, where a registrar proposed to- administer the oath, and tire party wishing to be registered refuses to take the oath, it is, the duty of the registrar to register him. We would say that under such circumstances he should not be registered. * * * And a qualified elector cannot be deprived of his right to vote, and the theory of our government that the maj’ority shall govern be destroyed, by either the willful ox negligent acts of the registrar, a sworn officer of the law.”' (Quinn v. Lattimore, 120 N. C. 426, 26 S. E. 638, 58 Am. St. Rep. 797.)
In State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1,the court adopts the following quotation, from People v. Wood, 148 N. Y. 142, 42 N. E. 536: “W© can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them.” And see State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128,. 83 Am. St. Rep. 573 ; Moyer v. Van De Vanter, 12 Wash. 377, 41 Pac. 60, 29 L. R. A. 670, 50 Am. St. Rep. 900; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491.
Election statutes, being intended to promote purity in public elections) to the end that a full and fair expression of the public will may be had, axe remedial and beneficial, and should be liberally construed. We therefore hold that the electors of Hathaway and Eosebud precincts were not disqualified because, through no fault of theirs, they failed to' take the oath prescribed. (Stackpole v. Hallaban, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502.)
Under the head of “leading questions” conteste© presents-twenty-six specifications of error. We find that hut three questions of the twenty-six were objected toi upon the ground that the questions were leading. We cannot say that the court committed reversible error, in overruling contestee’s objections to the three mentioned. (Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.) No jury was in attendance, and the court does not appear to have abused its discretion in this respect.
The court permitted contestant to introduce in evidence some incompetent testimony, against oontestee’s objections, and upon this branch of the case, as presented, the contestee assigns numerous errors. A great deal of testimony was adduced — the transcript consists- of over 480 pages of typewriting. As we shall hereafter show, we are not permitted to look to- the- sufficiency or insufficiency of the evidence to sustain the court’s find ’ings and judgment. What we ba,ve just said implies that there was testimony, and a great deal of it. The record bas received ■a thorough sifting by respective counsel. ■ We have examined all the assignments of error in detail, and on this point reaffirm the rule laid down in Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123, in which tlie court said: “But the cause was tried to the court, ■sitting withoiit a jury, and the presumption must, be indulged that such evidence, if improperly admitted, ivas not considered in arriving at a conclusion.”
As to the insufficiency of the evidence. This case comes .up on a bill of exceptions., duly settled and allowed. Counsel have indulged in considerable argument as to whether, in an ■election contest, a motion for a new trial is proper or permissible. That matter not being in issue in this case, we express, no. opinion thereon, counsel having elected to’ appeal upon a bill of exceptions. That a bill of exceptions is proper in a case of this nature admits of no doubt. If, however, a case is presented to this court upon a bill of exceptions, the bill must, be prepared ■conformably to the statutes prescribed for the preparation of •such in other cases. This being true1, it follows that the bill must be prepared in accordance with Article I, Chapter VII (Sections. 1150-1158, inclusive), of the Code of Civil Procedure. By Section 1151 we find that certain actions of the court are deemed excepted to. by the adverse party, and no bill of exceptions is required to present them; among these is “the final decision in an action or proceeding.” Section 1152 provides: “When, the exception is. to the verdict, or decision upon the ground of the insufficiency of the evidence to justify it-, the objection must specify the particulars, in which such evidence is .alleged to- be insufficient.” Appellant’s, specification of error No. 238 is “insufficiency of the evidence to justify the findings ■of fact made by the court herein.” We thus see that appellant relies for a, reversal of the case upon the insufficiency of the evidence, and this exception is not presented as required by the .statute. (Section 1152, supra; Robertson v. Longley, 28 Mont. 128, 72 Pac. 422.) Thus we are not permitted to proceed further with this' so-called exception.
Contestee insists tbat it was error for tlie court to admit in evidence tlie declarations of the alleged conspirators, and says that before declarations of conspirators can be admitted it must first be shown independently that a conspiracy existed; and then their admissibility is limited to such as were made during the pendency of the conspiracy, and in furtherance of its plans; and under these rules they are not admissible when they relate to a past transaction.
The correctness of these general principles will not be disputed. In answer to this it is sufficient, to< sa,y that even a cursory inspection of the, transcript discloses that, there was evidence sufficient to justify the conclulsion that the conspiracy charged in the statement of contest did in fact exist; that the conspiracy was for Hie purpose of employing a, sufficient number of men to carry the county in the interest of the Democratic ticket, or a, portion of it; that in furtherance of it a large number of men were employed a little over a. month prior to the election, with the understanding that they were to go into' Rosebud county for the purpose of obtaining employment for one month, and of voting the Democratic ticket; that their expenses were to be paid in traveling to, and from Kosebud, county; that a large number of them actually registered and voted in Rosebud, county; that, indeed, the conspiracy was actually carried out. These men, if the testimony be true1, knew the illegal purposes for which they were employed, perjured themselves in order to obtain registration, violated tlie election laws of the state, and thus became parties to the conspiracy themselves. Their declarations, as well as those of the persons who instigated the unlawful acts (the original conspirators), during the pendency of the conspiracy — while the negotiations for tlie men’s employment were pending, after they were, employed, during the election — and which were germane to the conspiracy, or a part, of the res gestae, are admissible1 in this case. The conspiracy existed as between the parties to- it until all its ends were accomplished. (See State v. Byers, 16 Mont. 565, 41 Pac. 708; Pincus v. Reynolds, 19 Mont. 564, 49 Pac. 145;. State v. Dotson, 26 Mont. 305, 67 Pac. 938; Underhill on Evidence, Sec. 69; Underhill on Criminal Evidence, Secs. 491, 492, 493; Jones on Evidence; Sec. 255.)
7. Under the rule tbat, where in an election contest it does not appear from tbe direct evidence of tbe voter for whom tbe ballot was cast, circumstantial evidence is; admissible to establish tbe fact (Boyer v. Teague, 106 N. C. 576, 11 S. E. 665, 19 Am. St. Rep. 547; Sorenson v. Sorenson, 189 Ill. 179, 59 N. E. 555; Black v. Pate, 130 Ala. 514, 30 South. 434; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; McCrary on Elections (4th Ed.), p. 363), and for the purpose of establishing tbat a conspiracy existed, contestant introduced considerable testimony tending to show tbat a number of men employed by Ramsey as ranch bands, and who' voted at tbe election, were hired mainly for political'purposes, and not to work on tbe ranch.
Witnesses testified tbat there was no demand for ranch bands in tbe immediate neighborhood of Ramsey’s ranch, and that Ramsey bad no' special use for tbe ten men) be bad there. Testimony was given- tending to prove tbat these ten men, or most •of them, simply “killed time.” Contestee introduced considerable evidence to contradict this line of testimony, and excepted to several rulings of tbe court upon questions bis counsel asked tbe different witnesses.- Eor example, the witness Miller, one of tbe alleged illegal voters who was employed on the Ramsey ranch, and who had qualified himself to answer, was asked: “From your observation, are you able to state whether or not they were kept busy during the time they were there ?” Also: “Erom your experience and observation do you know, and can you state, when a man is doing a day’s, work and is kept busy ?” Contestant objected to these questions as incompetent, and tbe objections, were sustained. This testimony, having been offered in contradiction of that on part of contestant, should have been admitted, and tbe court erred in sustaining the objections,, but the case cannot be reversed on that account. The testimony called for by tbe two questions just quoted related solely to- tbe conduct of the men employed at Ramsey’s ranch, and who voted at Kirby. Tbe court found that only sis illegal votes were cast at that precinct. Tliese it deducted from the total vote counted for contestee by the election officers. In its findings and judgment the court found McBae elected over contestee by nine votes. Therefore^ had the testimony called for been admitted, and the six illegal votes been counted .for contestee, McRae would still have a majority of three.
An appellate court will not reverse a judgment merely because the lower court committed error; it is only when the error has materially affected appellant’s rights on the merits of the case.
The court found that one Joko Petrovich was. an illegal voter, and that he voted for the contestee at the precinct of For-syth. Contestee sought to1 prove that Petrovich in fact voted for McRae, the Republican candidate. For this purpose he placed Terrett, one of the judges of election, on the; stand. Terrett testified that Petrovich said he could not make his ballot out, and that Marcyes, one of the other judges., made, it out for him, and that he (Terrett.) saw. Marcyes. mark it. Then this question was asked: “Now, you may state how Mr. Petrovich’s ticket was marked by Mr. Marcyes.” TTpon objection being lodged by contestant, the court ruled as follows: “As I recollect the law, if it is marked by a judge, the ticket should be indorsed as being marked by a judge. If that is true, the ticket is the best evidence, and should be produced. It is merely secondary evidence as to how it was marked. I will sustain the objection under and by virtue of the provisions of Section 1364 of the Political Code, as amended.”
Section 1364 of the Political Code-, as. amended, provides: “Any elector wrho- declares to the judges of election, or when it appears to the judges of election that he cannot read or write or that because of blindness or other physical disability he is unable to' mark his ballot, but for no other causey must upon request receive the assistance of two of the judges, who' shall represent different parties, in the marking thereof, and such judges must certify on the outside thereof that it was so marked with their assistance, and must thereafter give no information regarding the same. The Judges must require such declaration of disability to be made by the elector under oath before them, and they are hereby authorized to> administer the same. No elector other than one who may, because of his inability to' read or write or of his blindness, or physical disability, be. unable to mark his ballot, must divulge to any one within the polling place the name of any candidate for1 whom he intends- to vote, or ask, or receive the assistance of any person within the polling place in the preparation of Ms ballot.” (Session Laws 1901, p-. 120.)
"Whether the ballot is the best evidence as to how Petrovich voted depends upon whether it may be identified; if it can be identified, it is the best evidence; if it cannot be, then the testimony of one who knows how it was marked is the best evidence. Having shown that the ballot bore the certificate of the judges, in order to introduce the testimony of Terrett it was incumbent upon contestee to show that the ballot could not be identified. If Petrovich’s ballot was the only one bearing the certificate of the judges, Terrett and Marcyes, such certificate would serve to identify it; but if there were several ballots cast a.t Forsyth, under the provisions of Section 1364, supra, all of which bore the certificate; of the said judges, then it is probable that Ptetro-vich’s ballot could not. be identified. No elector shall place any mark upon his ballot by which it may afterwards be identified by him. (Section 1358, Political Code, as amended; Session Laws- 1901, p. 118 et seq.) And the judges should not place any distinguishing marks thereon, except as provided by law; the law evidently contemplates that the. same certificate; in effect, shall be placed upon all ballots to' which the judges, certify. Upon proof that Petrovich’s ballot could be identified, the court could have ordered the same produced, under the provisions of Section 1413 of the Political Code. The court was therefore right in excluding the testimony.
At the precinct of Kirby, ATcBae received but five votes. In order to show that all of the illegal votes cast there were for contestee, contestant produced five witnesses who were legal voters in that precinct, each of whom testified! that he voted for McBae. The admission of this testimony was objected to- by con-testee as incompetent, irrelevant and immaterial.- No1 question was raised as to whether the ballots, of these several voters could be identified.
Counsel insist that under our voting system, an absolutely secret ballot is contemplated, and to this end extraordinary precautions are provided" for; bystanders are prohibited from, approaching within a given distance from the voting booth; the voter is prohibited from placing a distinguishing mark upon his ballot; he must retire and mark his ballot alone, and fold it so its contents cannot be discovered. These precautions are provided for the protection of the voter. The design is ho make it impossible for others to prevent him from exercising his own free will. It is generally held that a legal voter may refuse to testify as to how he voted, but this is a privilege he may waive. (Van Winkle v. Crabtree, 34 Ore. 462, 55 Pac. 831, 56 Pac. 74; Boyer y. Teague, 106 N. C. 576, 11 S. E. 665, 10 Am. St. Rep. 547; Black v. Pate, 130 Ala. 514, 30 South. 434; Vallier v. Brakke, 7 S. E. 343, 64 N. W. 180; Dixon v. Orr, 49 Ark. 238, 4 S. W. 774, 4 Am. St. Rep. 42; Cooley’s Constitutional Limitations, 762; McCrary on Elections (4th Ed.), Secs. 438, 491, 492.)
There, is reason in this rule. While public policy requires that all electors be enabled to cast their ballots in absolute secrecy and with the utmost freedom, yet it is also to the public interest that a correct expression of the popular will he ascertained. Hence', when the validity of an election is being inquired into-, legal voters are encouraged to give testimony concerning it. Courts, should give a wide latitude to' such inquiries. Nothing concerns the people nearer than the purity of their elections. A fundamental principle of our government is that the majority shall control. When the popular will is subverted by conspiracies and other illegal practices, the searchlights of the- courts should be.fully turned on.
After a diligent examination of contestee’s specifications, we find no reversible error in the record. In a number of instances the proper objection was not made to the admission of testimony, and in others the right reason for the motion to strike out was not assigned. Again, we find that where the court in several instances sustained contestant’s objections, perhaps erroneously, the error was cured by the subsequent testimony of the several witnesses to> whom the questions, were put.
Dor the foregoing reasons, we are of the opinion that the judgment should be. affirmed.
Pee Curiam.-
Nor the reasons given in the foregoing opinion ,the judgment is affirmed.
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MR. JUSTICE HOULO'WAY
delivered tbe opinion of tbe court.
This action was commenced June 4, 1898, by Forrester and MacGinniss, plaintiffs, against tbe-Boston & Montana Consolidated Copper & Silver Mining Company of Montana, tbe Boston & Montana Consolidated Copper & Silver Mining Company of New York, tbe board of directors of tbe Montana Company, and certain stockholders and holders of proxies, to restrain the transfer of tbe property of tbe Montana, Company to tbe New York Company, to secure tbe appointment of a receiver for tbe Montana Company, and for other relief. A full statement of tbe facts in this case is contained in tbe opinion heretofore rendered by this court (Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353), to which reference is made. A temporary injunction was issued, and afterwards a receiver appointed. After tbe appeal from tbe order granting tbe injunction bad been decided against tbe defendants, and they bad made numerous unsuccessful attempts to prevent tbe property falling into tbe bands of tbe receiver, on April 9, 1899, they filed in tbe district court their written consent that a decree might be entered enjoining tbe transfer of tbe property of tbe Montana Company to tbe New York Company, enjoining tbe voting of tbe stock in favor of any such transfer, enjoining tbe New York Company from operating tbe property in any manner, and requiring that company to redeliver to tbe Montana Company tbe possession of tbe property in controversy, and adjudging tbe acts of tbe directors and officers of tbe Montana Company, so far as they related to a sale or attempted sale of the property to the New York Company, to be null and void, and requiring the New York Company to execute proper conveyances of the'property to the Montana Company, requiring the New York Company to account for the property while in its possession, and providing that plaintiffs might recover their costs. This offer was declined by the plaintiffs, and, a motion for the discharge of the receiver having been made and denied, 'an appeal was taken to this court. The order denying that motion was reversed (Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868), and the lower court was directed to enter a judgment and decree in conformity with the offer made by the defendants, and thereupon to discharge the receiver. On May 4, 1901, the court entered a judgment and decree containing the provisions stipulated for by the defendants', and further allowing the plaintiffs an attorney fee of $50,000, which is adjudged against the Montana Company. The decree also contains the following provision: “It is further adjudged and decreed that the acts of the directors and officers of the defendant mining company, Boston & Montana Consolidated Copper & Silver Mining Company of Montana, so far as they relate to the sale ox conveyance, or the attempt to sell or convey, the property of the said mining company to the New York Company, be, and the same are hereby, declared, adjudged and decreed to have been and to be null and void, and to have conveyed no right or title to the NeAV York Company in or to any of the property of the Montana Company, and that, any and all deeds or instruments of conveyance, and particularly the deed of conveyance hetetofore given to the said New York Company by the officers and directors of the Montana Company, aiid executed in its name, for all the property and rights mentioned and described in ESxhibit A of the complaint herein, which deed is recorded on page 173 of Book 29 of Deed Becords of Silver Bow county, Montana, be, and the same is hereby, declared, adjudged and decreed to have been and to be null and void, and to have conveyed no title or right, and are hereby canceled and set aside; and the said New York Company is forever enjoined from asserting any claim under said deed or deeds to said property. It is hereby adjudged and decreed that the said defendant, the said New York Company, has no right, title or interest in or to any of the property of the Montana Company heretofore or at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company, and that it never had or acquired any right, title or interest therein.” From this judgment and the order allowing attorney’s fee the defendants appealed.
Appellants contend that the judgment is unauthorized, particularly with reference to that portion quoted above. The specific objection made is that the judgment decrees the transfer or attempted transfer by the Montana Company h> the New York Company to have been null and void, and likewise decrees the deed executed by the officers of the Montana Conip any to the New York Company to have been null and void, and that it never transferred any right or title to the New York Company. Appellants contend that the court-should have gone no further than to declare such acts voidable.
If the transfer or attempted transfer by the Montana Company to the New York Company and the deed evidencing that transfer were in fact null and void, then they conveyed no right or title to the New York Company. A void transfer is, in effect, no transfer. A void deed is, in effect, no deed. Such a deed is a nullity ab initio. However, discussion of.the question is foreclosed by the offer of appellants and the former decision of this court (Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353, above), where this cause wasi fully considered. In disposing of it this court said: “Holding, as we do, that the proposed transfer is ultra vires the corporation, and therefore void, consideration of the question whether the transaction would, if accomplished, result in a consolidation or merger of the Montana Company with the New York Company, is unnecessary.” Aind this view finds support in the following authorities: McShane v. Carter, 80 Cal. 310, 22 Pac. 178; Pekin Mining, etc. Co. v. Kennedy, 81 Cal. 356, 22 Pac. 679; McCutcheon v. Merz Capsule Co., 71 Fed. 787, 19 C. C. A. 108, 31 L. R. A. 415; Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55; Jacksonville M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514, 16 Sup. Ct. 379, 40 L. Ed. 515; California Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198.
It is true that in Boston & Montana C. C. & S. M. Co. v. M. O. P. Co. (C. C.), 89 Fed. 529, Judge De Haven held that the attempted transfer by the Montana Company to the New York Company was, only voidable, and not void; but we think that decision is in conflict with the great weight of authority, and we prefer to follow the former decision of our own court.
As stated above, the appellants made an offer in writing that judgment might be entered in favor of Forrester and MacGin-niss, and this court directed the trial court to enter judgment in conformity with the same. Upon this particular question the appellants’ offer contains these provisions, which they proposed should be incorporated in the judgment, viz.: “Also adjudging that the acts of the directors and officers of the Montana Company, so far as relate to the sale or conveyance, or the attempt to sell or convey, the property1 of the said Montana Company to the said New York Company, be declared null and void, and that the deed of conveyance heretofore given to the said New York Company by the officers and directors of the said Montana Company, and executed in its name, for all the property and rights mentioned or described in Exhibit A of the complaint herein, which deed is recorded on page 175 of Book No. 29 of Deeds Beeords of Silver Bow county, Montana, be declared null and canceled; and that the said New York Company be forever enjoined from asserting any claim under said deed to said property; also- that said New York Company be declared to have no- right, title or interest in or to any of the property of the Montana Company heretofore at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company.”
The terms “null” and “void” are used interchangeably, and are defined as follows: Null: “Of no legal force or effect; void; as, our agreement is null.” Standard Dictionary. Void: “Having no legal force; entirely null; incapable of confirmation or ratification.” Id. Null: “Of no legal or binding force or validity; of no efficacy; invalid; void; nugatory; useless; of no account or significance.” Webster’s Dictionary1. Void: “Of no> legal force or effect what-' soever; null, and incapable of confirmation or ratification.” Id. Null: “Void; of no legal or binding force or validity; of no efficacy; invalid.” Century Dictionary. Void: “Specifically, in law, without legal efficacy; incapable of being enforced by law; having no legal or binding force; null; not effectual to bind parties, or to convey or support a right.” Id.
We are unable to perceive the difference, in legal effect, between the offer and the decree, and are of the opinion that in this regard the lower court followed the directions given by this court, and that as to> this portion of the judgment it was entered by consent, and appellants will not be heard to complain of it.
The receiver had been dispossessed of the property and restitution thereof to the Montana Company had been made by an order of this court dated April 13, 1899 (Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868), long prior to the date of the rendition of the judgment by the lower court in which is included the allowance for attorney’s fees, and appellants contend that such allowance was improperly made, first, because plaintiffs have not brought themselves within the rule which permits the recovery of an attorney1 fee by a minority stockholder who prosecutes a suit of this character; and, second, because there was no* fund in the hands of the court out of which such fee could be paid at the time it was allowed.
Upon the first proposition it is sufficient to say that the officers and trustees of the Montana Company had assumed to transfer the entire property of the corporation to the New York Company. These plaintiffs were minority stockbolders in tbe Montana Company, but were not stockbolders in tbe New York Company, and against tbeir wishes, could not be compelled to become sucb. Tbe offer of tbe defendants to confess judgment was an admission of wrongdoing on tbeir part in so far as tbe transfer or attempted transfer was concerned, and tbis court, on appeal from tbe order granting an injunction (21 Mont. 544, 55 Pac. 229, 353, supra), declared sucb attempted transfer ultra vires and void. Under sucb circumstances tbe authorities are unanimous in bolding that tbe minority stockholder or stockbolders dissatisfied with sucb action may institute a suit in equity to prevent tbe transfer or to recover back tbe corporate property.
Having determined that plaintiffs could maintain tbe action, tbe next inquiry is, were they successful? and tbis question is answered in tbe affirmative by the offer of defendants to permit judgment to be entered, and tbe entry of judgment accordingly ; and tbe doctrine is settled beyond controversy that under sucb circumstances tbe prevailing minority stockbolders may recover tbeir attorney fee. Tbis brings us to a consideration of a much more difficult question, viz., bow shall sucb fee be recovered ? Obviously, it is permitted upon one of two theories: First, that tbe fee is a part of plaintiffs’ costs taxable according to tbe course and practice of courts of equity, and included in tbe final decree; or, second, that it is money paid out and expended for tbe use and benefit of tbe derelict corporation, and recoverable in an action at law. Numerous cases are cited by counsel of these suits successfully waged by minority stockholders, where an attorney fee has been allowed to tbe plaintiffs; but in most, if not every1, instance a receiver bad been appointed, and tbe property was in tbe actual custody and control of tbe court. Tbe amount to be allowed as sucb fee was determined by a reference to a master, and when tbe amount was reported it was included in tbe final decree, and directed to be paid out of tbe property recovered or protected by tbe suit. Tbe mere fact that these courts say that it is proper to make such payment out of tbe trust fund throws little, if any, light upon the question' in dispute here. These decisions are useful only as'precedents, for, after all, they do not determine the manner of recovery of such fee where no receiver has been appointed, or, as in this instance, where the property has been taken from the possession of the receiver before final decree has been entered, or before the amount of such fee has been determined.
We are not impressed with the suggestion that such fee is allowed as a part of the expense of administering’ the trust fund in the hands of the court, for that can refer only to the administration by the court through the receiver, and costs of such administration are costs and expenses incident to such receivership only, while there is no relation whatever between the rights or liabilities of the plaintiffs to the action and the receiver. He is supposed to remain neutral while the litigation is being waged by the contending parties.
Wickersham v. Crittenden, 103 Cal. 583, 31 Bac. 513, cited by appellants, is not decisive of any question involved in this action. In that case Wickersham, who was a minority stockholder in the San Luis Obispo Bank, instituted two' suits against Crittenden, the bank and others, to recover for the bank certain funds. The actions were successful, and the judgment in each instance recited that the recovery was for the use of the bank. Upon appeal each of the judgments was affirmed. Afterwards Wickersham sought, by motion, to have his attorney fee paid to him out of the money recovered, notwithstanding he had not had it allowed and included in the judgments. The lower court made an order to^ that effect, but on appeal the order was reversed. The court said: “The judgments as rendered in the superior court were affirmed in this court, and were, of course, final judgments, and they did not include attorneys’ fees. They directed the moneys recovered, together with the stated costs, to be paid to the bank • and the superior court could not, upon petition or motion, change or modify these final judgments by ordering the moneys recovered to be disposed of in any way other than provided in the judgments themselves.”
In Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S. W. 90, 27 L. R. A. 98, certain phases of this question were involved. That action was brought by Grant and other minority stockholders against the corporation (Lookout Mountain Coirn pany) to1 restrain a sale of all the property of the company to one Baxter. The purpose of the sale was alleged to be to effect a consolidation of the Lookout Mountain Company and two insolvent corporations, in which the majority stockholders in the Lookout Mountain Company were also majority stockholders. The action was successful, and a decree was ordered, setting aside the pretended transfer to Baxter, and completely recovering the property to the Lookout Mountain Company. The ■successful minority stockholders then moved the court to refer to a master the question of the amount which they should recover as attorney fee. This application was refused, and an appeal taken. The opinion is lengthy, and reviews the decisions upon the question of the propriety of allowing an attorney fee in such a ease, and concludes as follows: “We are therefore of opinion that this record shows that through the intervention of these minority stockholders the property of the corporation has been preserved, protected and, indeed, recovered after it had been illegally conveyed away, and that, such recovery inuring to the benefit of the corporation, the suit was, to all intents and purposes, the suit of the corporation itself. The Lookout Mountain Company is therefore responsible for proper and reasonable counsel fees incurred by complainants in the prosecution of the suit. * * * The decree of the chancellor is reversed, and the case remanded for a reference in accordance with the motions submitted by the complainants and their counsel in the court below.” It is to be Observed in this case that the Supreme Court of Tennessee does not treat the attorney fee as a charge against the trust fund, payable only on condition that such fund is still under the control of the trial court, but holds that the derelict defendant corporation -is directly liable* for it, and orders that the amount of such fee be determined by' the chancellor by a reference to a master. The amount of the fee in the case at bar was reached in the same manner. except that the chancellor heard the testimony, instead of referring the matter, as he might have done. We are not treating the decision just referred to as decisive of this case, but only as a precedent indicating the practice in courts of equity generally.
We can see no reason why the power of the court to allow an attorney fee should he made to depend upon the mere possession of the trust fund. The most forceful objection to the manner of allowing the fee in this case is that it deprives the defendants of a jury trial of the issue as to the amount to be allowed as such fee, but this objection could be urged with equal propriety in every case where such a fee is allowed out of the trust fund. The allowance of such fee and the determination of the amount by the chancellor have become the settled practice in courts of equity. If such fee was recoverable only as for money paid out for the use and benefit of the defendant corporation, we are unable to understand how it could be allowed out of the corporate property by the chancellor. The action to recover money paid to the use of another is an action in assump-sit — an action at law. The very fact of the allowance of such a fee and the determination of the amount thereof by the chancellor incline us to the belief that it has never been considered money paid out for the use of the defendant corporation, but costs incident to the suit; and this belief is strengthened by the further fact that in every instance the right to recovery is made to depend upon the success of the minority stockholder’s suit. If he is successful, he is entitled to recover his attorney fee; if he is unsuccessful, he is not entitled to recover it. If the fee was recoverable as for money paid out for the use of the defendant corporation, the success or failure of the litigation in which it was expended would have little to do with the right to its recovery.
Impelled by these considerations we are of the opinion that the attorney fee was properly allowed by the court as a part of plaintiffs’ costs and ¿xpenses, taxable according to the course and practice of courts of equity. In this view of the case, the order allowing sncb fee is not appealable, but is reviewed on tlie appeal from the judgment itself.
It is further claimed on behalf of the appellants that the allowance for attorney fee was prematurely made, for the reason that the judgment in which it is included is not a final judgment. This contention is predicated upon the provision for an accounting to be made by the New York Company to the Montana Company. We do not think that this reservation of itself changes the character of the judgment. It is either a final judgment or no' judgment. Section 1000 of the Code of Civil Procedure reads as follows: “Sec. 1000. A judgment is the final determination of the rights of the parties in an action or proceeding.” Section 1820 of the same Code reads: “Sec. 1820. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order.” In In re Rose's Estate, 80 Cal. 160, 22 Pac. 86, the court considered provisions of the California Code identical with Sections 1000 and 1820, above, and reached the conclusion that there is no distinction between a judgment and a final judgment, and that every direction of a court in writing must fall within the definition of the term “judgment or order.” Furthermore, to agree with appellants’ contention would be to defeat their appeal altogether, for, if this is not a final judgment, there is no appeal from it, and their appeal would have to be dismissed. However, under the definitions given above, we are of the opinion that the judgment entered in this cause is a final judgment.
It is earnestly contended that the fee allowed by the district court is excessive. It is not, however, insisted that the decision of the court is not supported by the testimony. On the contrary, the record shows that Hon. T. C. Bach, some time associate justice of the Supreme Court of the Territory of Montana, O: E. Goddard, of Billings, and G. W. Stapleton, of Butte, eminent members of the profession in this state, and attorneys of many years of experience, each testified that, in his opinion, the services rendered by the attorneys for the plaintiffs were reasonably worth the stun of $50,000, the amount allowed by the court. It is likewise true that other attorneys of wide experience and of high standing in the profession testified on behalf of the defendants that a much less amount would constitute reasonable compensation for the services. The amount to be allowed, however, was a matter for the trial court to determine in the first instance from all the facts and circumstances in evidence. (3 Ehcy. Law, 423.-) There was a conflict in the testimony, and the determination of the trial court, being supported by evidence which it deemed credible, will not be disturbed on appeal.
The authorities are unanimous in holding that the plaintiffs are entitled -to' recover a reasonable attorney fee, and for the purpose .of determining the amount of such fee the following rule has been laid down: “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.” (3 Ency. Law, 420; 4 Cyc. 994.) In the absence of any showing to the contrary, the presumption must be indulged that the trial court followed this well-established rule.
The record discloses that five firms of attorneys, namely, Mc-Ilatton & Cotter, Glayberg & Corbett, Cullen, Bay & Cullen, Bobert B. Smith, and Charles B. Leonard, were employed by, and participated in the litigation on behalf of, the plaintiffs. John. J. McTIatton, one of the attorneys for plaintiffs, testified to the work done by the several firms in the litigation (various phases of which litigation have been before this court — Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 565, 55 Pac. 229, 353; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 220, 56 Pac. 219; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 241, 56 Pac. 281; State ex rel. Boston & Montana. C. C. & S. M. Co. v. Dist. Court, 22 Mont. 376, 56 Pac. 687; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 438, 56 Pac. 865; Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868; Forrester v. B. & M. C. C. & S. M. Co., 23 Mont. 122, 58 Pac. 40; Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 24 Mont. 148, 60 Pac. 1088), and tipon tbis testimony as a basis the witnesses expressed their opinions as to the reasonable value of such services. The witness Mcliatton testified that the property in controversy — that is, the entire property of the Montana Company — was of the value of about $40,000,-000. It appears from the record that these plaintiffs owned 200 shares of the capital stock of the Montana Company, worth $53,000, based upon the market quotations of the stock, and appellants insist that the value of the property to be affected (referred to in the rule laid down above) in this instance was the property of the plaintiffs, and that it is ridiculous to allovv $50,000 attorney fees in an action involving only $63,000 worth of property. Respondents contend that the property to be affected, within the meaning of that rule, was, the entire property of the Montana Company, and that in estimating the value of the services rendered by counsel for plaintiffs the witnesses properly took into consideration property of the value of $40,-000,000. What property was involved in the litigation is to be determined by a consideration of the nature and purpose of the action. If the action is by minority stockholders to protect their proqierty rights only, then doubtless appellants’ contention is correct. But the courts do not so treat it. In Grant v. Lookout Mountain Co., above, it is said: “Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others for wrongful dealing with corporate property, or wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and tbe. corporation either actually or virtually refuses to institute or prosecute such a suit, then, in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders. * * * The rationale of this rule should not be misapprehended. The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought. He is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court.- The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by the corporar tion. It is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder plaintiff.” (Trustees v. Greenough, 105 U. S. 521, 26 L. Ed. 1157; 4 Thompson on Corporations, 4491, 4560; 2 Cook on Stockholders, 748.)
If the doctrine above announced is correct — and we think it is — the purpose of the action, then, is to recover back the trust fund, or all of the property of the corporation which is about to be dissipated, and in the present instance it was the entire property of the Montana Company, valued at about $40,000,-000; and such value was properly considered in determining the attorney fees to be allowed the plaintiffs for the successful prosecution of the action, which ought to have been brought by the corporation itself, had not its officers and trustees, breached their trust.
Neither do we think there is any merit in appellants’ contention that the expert witnesses were improperly permitted to take into consideration services rendered in certain- special proceedings instituted in this court, and in which the lower court was nominally a party defendant or”respondent. One object of tliis action was to have a receiver appointed to- take charge of the property of the Montana Company pending the litigation. The action of the district court in” making this appointment-was affirmed by this court. (State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 241, 56 Pac. 281.) The writs of review and prohibition sued out of this court were intended to prevent the execution of the order appointing the receiver, and were merely incidental to the main action itself. The same reason applies to the other services to which objection is made.
Appellants further contend that it was error to include attorneys’ services which were unsuccessful, and reference is made to certain motions and the appeal from the order of the lower court refusing to discharge the receiver, which were unsuccessfully opposed by the plaintiffs. We understand the rule in suits of this character instituted by minority stockholders to be that, if the action is successful, the plaintiffs may recover their attorney fees; if unsuccessful, they may not. But the rule applies to the ultimate object to be attained, and not to every step, which may be taken in the course of the litigation. If in the end the plaintiffs accomplished the purpose for which the suit was instituted, their efforts were successful, however many intermediate orders or rulings may have been made against them.'
It is finally contended that the court erred in sustaining certain objections interposed to questions asked plaintiffs’ witnesses on cross-examination. The following will illustrate the alleged errors: “(8) The court erred in sustaining objection to the question asked witness McHatton, as follows: ‘Do you know of any such fee as fifty thousand dollars ever having been paid in the state of Montana to any attorney?’ ” “(11) The court erred in sustaining the objection to the question asked witness Bach, as follows: ‘I will ask you if, in representing that corporation (the M. O. P. C'o.), you can tell us what your salary is per year ? A. I am not a clerk, sir; and I have no salary. I have a retainer. Q. I will ask you, then, what your retainer is per year?’” “(13) The court erred in sustaining objection to the question asked the witness Goddard, as follows: ‘Q. Did you ever receive such a fee as fifty thousand dollars ?’ ” “(1-7) The court erred in sustaining the objection to the ques tion asked tbe witness Stapleton, as follows: ‘Did yon ever receive sucli a fee as fifty thousand dollars under any circumstances?’ ” “(19) Tbe court erred in sustaining tbe objection to the question asked tbe witness Stapleton, as follows: £Q. I will ask you what compensation you received for your services in connection with tbe Boston & Montana Company ?’ ”
With reference to tbe questions asked the 'witness McHatton, it is sufficient to say that on bis direct examination be did not testify with reference to tbe value of tbe services rendered, and therefore could not be cross-examined respecting tbe same.
Tbe opportunity to cross-examine tbe opposing party’s witnesses is a matter1 of right; but tbe latitude of cross-examination is very largely in tbe discretion of tbe trial court, and an appellate tribunal will not interfere unless that discretion is oppressively abused. (8 Enc. Pleading & Practice, 109, and numerous cases cited.) Tbe record discloses that reasonable latitude was allowed in tbe cross-examination of these witnesses, and in excluding answers to tbe foregoing questions we are not prepared to' say that such an abuse of tbe trial court’s discretion is shown as would warrant interference by this tribunal, if tbe examination was otherwise proper. It has been said that evidence of what another attorney received in tbe same ca§e, or in other particular cases, is not admissible in determining tbe value of services performed. (3 Ehc. Law, 424.) We are not prepared to say that the line of examination indicated by tbe questions above quoted was proper cross-examination, or that answers thereto would have thrown any light upon tbe question at issue or upon tbe qualification of tbe witnesses testifying. Certainly, under tbe shoAving made by tbe record in tbe action, no such abuse of discretion is shoAVn as: would warrant a reversal of the judgment.
One question directed to tbe witness Goddard might properly have been answered, and error is predicated by appellants upon tbe ruling of tbe court, as follows: “(12) Tbe court erred in sustaining objection to- tbe question asked witness Goddard, as follows: £Q. Mr. Goddard, I will ask you if you know of any ease wherein any number of attorneys in that particular case have received as compensation a fee of fifty thousand dollars ?’ ” The question was apparently framed to' make out a case parallel with the one at bar. The record, however, discloses these'recitals immediately following that question: “Objected to as immaterial, irrelevant and incompetent. Objection overruled, and plaintiffs allowed an exception.” It is apparent, then, that the ruling is in appellants’ favor, and that the exception was taken by the plaintiffs, and cannot be availed of by the appellants on this appeal. We do not understand that a party may complain of a ruling in his own favor.
A careful review of the case leads us to the conclusion that no error prejudicial to the appellants was committed.
The appeal from the order allowing the attorney fee is dismissed, and the judgment is affirmed.
Affirmed.
Mr. Justice Milburn having been absent, owing to illness, did not hear the argument, and takes no part in this decision.
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] |
Per Curiam.
Tbe application for a wait of certiorari herein is denied.
|
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] |
MR. CHIEF JUSTICE BR'ANTLY
delivered tbe opinion of tbé court.
Application for writ of mandamus to compel El W. Harney, one of the judges of the Second judicial district court, to settle a statement and bill of exceptions on motion for new trial in a cause -wherein Sarah A. Pryor was plaintiff and the relator herein was the defendant. A trial of the cause was had on November 11, 1902, resulting in a verdict in favor of the plaintiff for the sum of $1,500. Judgment was entered in accordance with the verdict for the amount thereof and for costs. On November 18th the defendant served upon the plaintiff and filed with the clerk of the court its notice of intention to move for a new trial. Thereupon an order was made granting the defendant additional time to- that provided by law in which to prepare and serve its statement and bill of exceptions in support of its motion. Within the time so allowed, and on January 28, 1903, the defendant duly served upon the attorneys for the plaintiff its statement and bill. On January 30th the attorneys for the plaintiff served upon the attorney for defendant proposed amendments. These amendments were not adopted.
The relator alleges in the affidavit filed in support of the application that on February 9, 1903, El W. Harney, the judge before whom the cause was tried, not then being ini the county of Silver Bow, its counsel left with the clerk for the judge the proposed statement and bill, together with the proposed amendments, to be presented to> the judge upon his return, for settlement in accordance with the provisions of Subdivisions 2 and 3 of Section 1113 of the Code of Civil Procedure. In his answer to the alternative writ the judge of the district court puts in issue the truth of this statement, and this presents the only controversy involved upon the hearing of this application.
If the statement and bill with the proposed amendments .were left with the clerk for the judge within the time allowed in .the statute, it became the duty of the judge to settle the bill and statement, and make therm part of the record. If they were not presented to the clerk in conformity with the requirements of the statute, the judge was under no obligation to settle them. (Burns v. Napton, 26 Mont. 360, 68 Pac. 17.)
• At the hearing witnesses' were introduced on behalf of the relator and the defendant, the inquiry being as toi what took place in the clerk’s office on February 9th, when counsel for relator claims that he presented the statement and bill, together with the amendments, to, the clerk for the judge. The preponderance of the evidence is decidedly in favor of.the conclusion that counsel for the relator is mistaken in his claim that he presented the proposed amendments of the plaintiff, together with the statement and bill, to' the clerk, and that the amendments were not filed with the clerk until February 21st, when they were filed by counsel for plaintiff. Under this condition of the evidence the application cannot be sustained; for, whatever may be the reason for which the judge refused to settle the statement when the hearing upon the settlement was had on February 28th, the fact that the proposed amendments were not left with the clerk in conformity, with the provisions of the statute is a sufficient reason why this court should not issue the writ. A motion for a new¡ trial is, in this state, a statutory remedy, and can only beinvoked in the manner, within the time, and upon the grounds provided in the statute. The losing party must pursue the requirements of the statute, or else he cannot avail himself of the remedy. (Ogle et al. v. Potter, 24 Mont. 501, 62 Pac. 920.)
The alternative writ heretofore issued herein is set aside, and the application' dismissed, at the cost of the relator.
Dismissed.
|
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ME. JUSTICE HOLLOWAY
delivered the opinion of the court
On November 16, 189S, the Ancient Order of Hibernians, Division No*. 1, of Anaconda, Montana, entered into an agreement with Edward B. White, a contractor and builder, by the terms of which White agreed to furnish the materials and erect a building for the order in Anaconda, for which he was to* be paid the sum of $13,515, the building to be completed prior to December 1, 1898, and all the work to be done according to plans and specifications which were furnished. Eor the faithful performance of that contract White executed his indemnity bond in the sum of $3,500, with respondents Sparrow, Wegner, Badefeld. and Thiefenthaler as sureties, the condition of the undertaking being that, “if the said Edward B. White shall in all things comply with the contract in letter and spirit, and turn over to the said A. O. H. Div. No. 1, of Anaconda, the said building fully finished and completed in all its parts in strict compliance with the said plans and specifications, * * then the above obligation to be void, otherwise to remain in full force and virtue.”
The complaint alleges that, although White entered upon the work and performed a part of it, he abandoned the same before it was completed, and that the appellant was compelled to complete the same at a cost of more, than $.4,500 over and above the contract price of the building. The complaint then alleges that prior to the commencement of this action this appellant reeov- ered a judgment against White for the breach of said contract in the sum of $5,440, and that White was soon afterwards adjudged a bankrupt without assets. The prayer of the complaint is for the full amount of the bond.
At the time of the commencement of this action and the issuance of summons, upon a .proper affidavit being made and the undertaking required by law being given, thei clerk of the district court issued a writ of attachment under which the sheriff of Deer Lodge county levied upon property belonging to> the defendants. Thereafter the defendants appeared, and moved the court to discharge the attachment upon the ground, among others^ that the action is not founded upon a contract for the direct payment of money within the meaning of Sections 890 and 891 of the Code of Civil Procedure. This motion was by the court sustained, and the attachment dissolved. From, the order dissolving the attachment this appeal is prosecuted.
Section 890 of the Code of Civil Procedure provides as follows: “Sec. 890. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may he recovered, * * * as follows: In an action upon a contract, express or implied, for the direct payment. of money. * * *”
Without question this is an action upon an express, contract, and the only difficulty to be met with is in the proper construction of the phrase “for the direct payment of money.”
So far as we are advised, California and Oregon are the only other states having the sarnie statutory provision. Colorado had prior to 1895. Sections 120 and) 121 of the California practice act (St. 1851, p. 68, c. 5; Sections 537, 538, Code Civ. Proc., 1897) contain the same provisions as our Section 890, above, and those sections received construction by the Supreme Court of California in Hathaway V: Davis, 33 Cal. 161; where by a divided court it was held that an ordinary appeal bond was a contract for the direct ¡payment of money within tbe meaning of Sections 120‘ and-121, above. However, tbe majority of the court characterized its own opinion as not being very satisfactory. This decision was made the sole ground for holding that a bail bond was likewise a, contract for the direct payment of money (City and County of San Francisco v. Brader, 50 Cal. 506), and upon the authority of thése two* cases the same court in County of Monterey v. McKec, 51 Cal. 255, held the official bond of the county treasurer was such a contract as is contemplated by the attachment statute.
It is contended by appellant that under the rule of construction that^ where a statute is adopted from another state hy this state, it is adopted with the construction given it by the highest court, of that state, the decision in Hathaway v. Davis is conclusive in this instance.
It may be true, as assumed by counsel for appellant, that our Section 890, above, was borrowed from California, and yet that is only an assumption, as there is. nothing whatever to. indicate that it is a fact. The expression “for the direct payment of money” does not appear in o-ur attachment laws from January 15, 1869, to the adoption of the Code in 1895, at which latter date at least two other states had substantially the same statutory provision as California. However, this court will not blindly follow the construction given a particular statute by the court of a state from which we borrowed it, when the decisión does not aplpleal to us as founded on right reasoning. We understand the rule to be “that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it” (Endlich on Interpretation of Statutes, Sec. 371; Oleson v. Wilson, 20 Mont. 544, 52 Pac. 372, 63 Am. St. Rep. 639) ; or, as was said in Stadler v. First National Bank, 22 Mont. 203, 56 Pac. 114, 74 Am. St. Rep. 582: “When a particular statute has been adopted by this state from the. statutes of another, after a judicial interpretation (suited to. our condition) has been placed upon it by the parent state, the courts of this state are bound by the interpretation of the courts of the state -whence it was adopted or will a,t least accord respectful consideration to such, interpretation, and depart from it only for strong reasons.”
Prior to 1895 Colorado' badi an attachment statute which 'provided that the writ should issue upon the plaintiff making an affidavit “that the, action is brought upon an overdue promissory note, bill of exchange, or other written instrument for the direct and unconditional payment of money only or upon an overdue book account.” (Mills’ Ann. Code, Sec. 92.) This section received consideration in Hurd v. McClellan, 14 Colo. 213, 23 Pac. 792, which was an action upon an appeal bond, and reference is there made to the case of Hathaway v. Davis, above, and the majority opinion disapproved. The Supreme Court of Colorado, after holding that such appeal bond does not come within the purview of Section 92, above, says: “In, this .case the obligation assumed by the sureties' was not direct, but collateral. They could be charged only upon, failure of the prin: cipal to pjay. If he failed to pay the judgment appealed from, if affirmed by this court, then there would be a breach of the condition of the bond Upon which a cause of action might be predicated.”
In People v. Boylan, 25 Fed. 595, Hallett, J., in construing the above section of the Colorado' Code in an. action upon an administrator’s bond, says.: “A direct payment is one which is absolute and unconditional as to, time, amount and the persons by whom and to, whom it, is to1 be made. And a written instillment which provides for such payment is one which expresses those terms fully. It is needless to point out the difference between such an instrument and an administrator’s bond.” Commenting on the majority opinion in Hathaway v. Davis, supra, Judge Ilallett says: “It is to be observed, also, that in the only case cited from that state (California) in which the question, was discussed the views expressed were not altogether satisfactory to the court. And the opinion will hardly be more convincing to the profession than it was to' the court.”'
In Hathaway v. Davis, above,.Sawyer, J., dissenting, says: “The undertaking upon which a. recovery is sought is ‘that the appellants will pay all damages and costs which, may be awarded against defendant on the appeal, not exceeding three hundred dollars.’ This appears to- me to- be an undertaking that another party shall pay, and not that the p-arty himself will pay. There is no promise that the defendants themselves will pay any money at all, and consequently no- contract on their part for. the direct payment of money. On a failure of the appellants in the suit to pay in accordance with the terms- of the undertaking, there is a breach, it is true, and the party to- the undertaking is liable for damages for the breach. But the liability is- strictly for damages, and not on his own contract that he- himself will pay money. For these reasons I think there was no- contract, express or implied, on the part of the defendant for the direct payment of money within the meaning of the attachment law, and that an attachment is unauthorized.” It is to be noted that this dissenting opinion is quoted with approval in Hurd v. McClellan, above.
The Code o-f Civil Procedure of New York (Section G35) provides for the issuance of an, attachment “in an action to recover a sum of money only as damages for a breach of contract, express or implied,” and Section 64-9 provides the manner of levying tire writ. Construing these sections, the supreme court, in Trepagnier & Bros. v. Rose, 18 App. Div. 393, 46 N. Y. Supp. 397, said: “But we are clear that, to be an instrument for the payment of money, it must b-e an instrument which acknowledges an absolute obligation to pay, not conditional or contingent; one, the execution of which being admitted, it would be incumbent on the plaintiff, in an action, to- enforce it, only to offer the instrument in evidence to entitle- him; to a recovery —in other words, an instrument that admits an existing debt. We think that this is the correct line which divides such instruments from other written contracts which contain obligations on the part of one party or the other to pay money, such as agreements of sale, hiring, leases, building contracts, etc.”
One of the definitions given in Webster’s Dictionary for the word “direct” is “immediate; express; unambiguous; confessed ; absolute”; and it does seem that, if the term is to be given any meaning1, as used in our attachment statute, it must distinguish a particular class of contracts for the payment of money from all other contracts for the payment of money. In other words, that class of contracts which provide for the direct payment of money must differ somewhat from, all other contracts for the payment of money, or the team, “direct” has no meaning whatever.
The term first appeared in our attachment statute in 1866 (Act Third Leg. Assem. approved Dec. 3, 1866, p. 62, c. 12, Sec. 1). These legislative enactments were annulled by Act of congress (14 Stat. at Large, 427). Practically the same provision was re-enacted by the Fourth legislative assembly (Laws of 1867, page 156). This Act was amended by Act of Fifth legislative session, approved January 15, 1869 (Laws of 1869, page 64), and the word “direct” omitted, and it does not reappear until 1895, when its re-enactment into our laws must he presumed to have been done for a p|urpose>, viz., to limit the operation of the writ of attachment. Before 1895 an attachment could be had in every action upon a contract, express or implied, for the payment of money, where the debt was not secured. Since then the writ can only issue in those cases arising on contracts, express or implied, for the direct payment of money, and, applying the definitions of the term “direct” as given above, the obvious intention of the legislature, can he made plain. The contracts now contemplated by Section 890, above, are such only as require the payment unconditionally and absolutely of a definite sum-.
As the sureties to the undertaking under consideration became liable only on condition that their principal, White, defaulted in tlie performance of his; contract, and then only for such sum as the indemnified party might recover as damages for the breach (not exceeding the sum mentioned in the bond), we are of the opinion that the bondl sued uplon is not such a contract as is contemplated in Section 890, above, and that the attachment was properly discharged.
The order discharging the attachment is affirmed.
Affirmed.
|
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